Medina v. FCH Enterprises, Inc. et al

Filing 39

ORDER GRANTING IN PART DEFENDANT FCH ENTERPRISES, INC., DBA ZIPPY'S RESTAURANTS' MOTION FOR SUMMARY JUDGMENT, AND REMANDING REMAINING ACTION TO THE FIRST CIRCUIT COURT OF THE STATE OF HAWAII re 24 . Signed by JUDGE J. MICHAEL SEABRIGHT on 6/19/13. (gls, )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

TERESA L. MEDINA,

)
)
Plaintiff,
)
)
vs.
)
)
FCH ENTERPRISES, INC., DBA
)
ZIPPY’S RESTAURANTS; AND
)
DOE DEFENDANTS 1-100,
)
)
Defendants.
)
_______________________________ )

CIVIL NO. 12-00364 JMS-KSC
ORDER GRANTING IN PART
DEFENDANT FCH ENTERPRISES,
INC., DBA ZIPPY’S
RESTAURANTS’ MOTION FOR
SUMMARY JUDGMENT, AND
REMANDING REMAINING ACTION
TO THE FIRST CIRCUIT COURT OF
THE STATE OF HAWAII

ORDER GRANTING IN PART DEFENDANT FCH ENTERPRISES, INC.,
DBA ZIPPY’S RESTAURANTS’ MOTION FOR SUMMARY JUDGMENT,
AND REMANDING REMAINING ACTION TO THE FIRST CIRCUIT
COURT OF THE STATE OF HAWAII
I. INTRODUCTION
In this action alleging unlawful discrimination in employment,
Defendant FCH Enterprises, Inc., dba Zippy’s Restaurants (“Defendant” or
“Zippy’s”) moves for summary judgment on all claims asserted against it by
Plaintiff Teresa Medina (“Plaintiff” or “Medina”). Based on the following, the
court GRANTS Defendant’s Motion as to all of Plaintiff’s federal claims, and
REMANDS the remaining state-law claim under the Hawaii Whistleblower
Protection Act (“HWPA”), Hawaii Revised Statutes (“HRS”) § 378-62, to the First

Circuit Court of the State of Hawaii.1
II. BACKGROUND
A.

Factual Background
For purposes of this summary judgment motion, the court views the

evidence in the light most favorable to Plaintiff. See, e.g., Sullivan v. Oracle
Corp., 662 F.3d 1265, 1270 (9th Cir. 2011). Viewed as such, the evidence
indicates as follows.
1.

Medina Is Hired by Zippy’s
Zippy’s hired Medina for its wait staff in June 2007. Doc. No. 30-1,

Pl.’s Decl. ¶ 2; Doc. No. 25-2, Rand Decl. Ex. A. Medina is female, and was born
in 1961. Doc. No. 30, Def.’s Concise Statement of Facts (“CSF”) ¶ 27.2 When she
was hired, she completed an application that expressly preserved her status as an
“at-will” employee. Id. ¶ 1.
Medina had previously worked at an IHOP restaurant, but left due to
difficulties with her then-supervisor Mike Nakila (“Nakila”). Id. ¶ 2. After she
began working at Zippy’s, Medina saw Nakila at the restaurant and encouraged

1

Plaintiff does not object to dismissal of her claims for Intentional Infliction of
Emotional Distress (Count Four), Breach of Contract (Count Five), and Promissory Estoppel
(Count Six). Thus, the Motion is also GRANTED as to those counts.
2

Where Plaintiff does not dispute a particular fact, the court cites directly to Defendant’s

CSF.
2

him to apply to work at Zippy’s. Id.; Doc. No. 25-14, Rand Decl. Ex. M at 57.3
Nakila was subsequently hired by Zippy’s as wait staff, but initially had little
contact with Medina. Doc. No. 30, Def.’s CSF ¶ 3. Nakila later began to work
weekends with Medina. Id.
Nakila made two comments to Medina regarding her age. Both
comments occurred prior to February 9, 2010. The first was “too bad there wasn’t
a pill for being old,” and the second was “Oh you know when you get old, certain
things happen to you.” Id. ¶ 4. The first comment was probably made in late
December 2009. Doc. No. 25-14, Rand Decl. Ex. M at 109. Medina told her
managers about the comments, and that she “didn’t appreciate how he talked to
me.” Id. at 97. She indicates that managers “Caesar” and “Ronald” told her they
would talk to Nakila. Ronald also told her “[Nakila] was probably joking.” Id. at
98.4

3

The citations to Exhibit M, which is Medina’s deposition, are to the deposition
transcript page numbers.
4

In her declaration, Medina also states that she “noticed that [Nakila] was constantly
harassing the other wait staff, especially Diane and Sharon” and that “Sharon complained to
Caesar and Ronald that [Nakila] was teasing her about her age and appearance, and Sharon
requested that [Nakila] be informed that he was not to speak to her anymore.” Doc. No. 30-1,
Pl.’s Decl. ¶ 46. This occurred before Nakila’s comments to Medina, id. ¶ 48, that is, well
before February 2010.
3

Earlier,5 a different Zippy’s employee (“Rudy”) commented to Medina
that “she was old, fat, and jiggly.” Doc. No. 30, Def.’s CSF ¶ 5. Medina’s
husband went to the restaurant that night and spoke to the manager about that
comment, and Medina had “no other issues” working with Rudy after that incident.
Id. Besides these instances with Rudy and Nakila, no other Zippy’s employees
made comments to Medina regarding her age. Doc. No. 25-14, Rand Decl. Ex. M
at 117.
2.

Altercations with Nakila in January 2010
On January 23, 2010, Medina and Nakila were involved in a

workplace incident involving the seating of customers and assignment of tables.
Medina testified that Nakila was “giving everybody else [besides Medina and
another wait person, Diane] tables.” Id. at 121. Medina reported this to the
manager, Ronald. Ronald apparently then asked Nakila why he was not assigning
tables to Medina and Diane, and Nakila denied such behavior. Id. Medina testified
that Nakila, apparently angry at her, “[came] flying around the corner, yelling at me
. . . like he wants to hurt me.” Id. at 122. According to Medina, Nakila was
aggressive: “his eyes was so big, like it was bulging out of his . . . head,” id., and

5

Although Medina could not recall exactly when Rudy made the remarks, she knows
that it was before the incidents with Nakila (i.e., before February 2010). See Doc. No. 25-14,
Rand Decl. Ex. M at 271.
4

he was yelling and swearing at her. Id. at 129. Medina accused Nakila of being on
drugs (telling him “are you flying?”), and she told Ronald that Zippy’s should
“drug test” Nakila. Id. at 130. Other employees apparently had to then restrain
Nakila from physically confronting Medina. See id. (“People was holding him
back”).
On January 31, 2010, Medina and Nakila were again involved in a
similar altercation. Nakila was yelling for others to “get away from my food,”
apparently telling other employees not to deliver food for his assigned tables. Id. at
137. Medina told another employee, “If [Nakila] complained that I’m not
delivering food, you heard for yourself that he don’t want me to touch his food.”
Id. Overhearing this, Nakila confronted Medina, “yelling and coming towards
[her],” screaming “[y]ou talking about me?” Id. Another employee interceded,
and blocked Nakila from Medina, who was afraid Nakila was going to hit her. Id.
Medina told the manager, Caesar, that she “wanted him to call [human resources]
. . . because I’m tired of them blaming me for stuff that I didn’t do.” Id. at 138-39.
3.

Meetings with Management in February 2010
On February 2, 2010, Medina met with (or was simply presented a

form from) Ronald regarding the January 23, 2010 incident. Doc. No. 25-17, Goya
Decl. Ex. A. Although Medina disputes the events as described on that form, the
5

form states, in part:
On Saturday 1/23/2010 [Medina] got into [an] argument
with [Nakila] over the [seating] chart. [Medina] was
accusing [Nakila] of sitting customers without following
the [seating] chart. Also [Medina] accused [Nakila] of
doing drugs. They both exchanged words with each other
causing a hostile work environment!
Id. Regarding “corrective action,” the form states:
Need to be able to resolve conflicts in a professional
manner! Need to be able to control emotions and not get
into shouting [matches]. Need to bring up things in a
[responsible] manner.
Id. And as to “disciplinary action to be taken if correction is not made in time
frame,” the form states “next incident will result in suspension” (in printed text),
followed by “up to termination depending on severity” (in handwritten text). The
form was signed by Medina, an assistant manager, and the restaurant manager on
February 2, 2010. It was also signed by Zippy’s’ Employee Relations Manager
May Goya (“Goya”) on February 10, 2010. Id. Nakila signed a form with the
same warnings. Doc. No. 33-4, Goya Decl. Ex. A.
On February 6, 2010, Goya met with Medina and Nakila regarding
one or both incidents. Doc. No. 25-16, Goya Decl. ¶ 2.6 The meeting apparently

6

Medina’s declaration indicates a meeting between Nakila and Goya on February 7,
2010. Doc. No. 30-1, Pl.’s Decl. ¶ 89. This discrepancy in the date is not material.
6

did no go well between Medina and Nakila, as Medina declares in part that Nakila
“started screaming at me[.]” Doc. No. 30-1, Pl.’s Decl. ¶ 90. Goya attests that she
“made it clear to Medina that any further unprofessional behavior would not be
condoned and future incidents of confrontations or arguments with other
employees would result in her termination.” Doc. No. 25-16, Goya Decl. ¶ 2. For
her part, Medina states that Goya told them “[i]t is obvious that this isn’t going to
work. Mr. Nakila you go back to work and Teresa you go home and cool off.” Id.
Medina indicates that she informed Goya at this meeting that she “was going to get
a temporary restraining order (‘TRO’) against [Nakila] since it was obvious that
Zippy’s was not going to protect me while in the workplace.” Doc. No. 30-1, Pl.’s
Decl. ¶ 91. And, indeed, on February 8, 2010, Medina obtained an Ex Parte TRO
against Nakila from the District Court of the First Circuit, State of Hawaii,
preventing Nakila from contacting Medina for a period of ninety days. Doc. No.
25-6, Rand Decl. Ex. E. The TRO was served on Nakila on February 9, 2010, at
another meeting between Medina, Nakila, Goya, and another Zippy’s
representative. Doc. No. 30-1, Pl.’s Decl. ¶ 96.
At the February 9, 2010 meeting, Medina and Nakila were both
warned that “this was their last chance and the next incident will result in
immediate termination.” Doc. No. 25-16, Goya Decl. ¶ 2. Medina confirms that
7

she “was given a last chance warning” and was told that “if something like this
happens again” she would be fired, although she contends that she did not think the
warning was also directed at Nakila. Doc. No. 25-14, Rand Decl. Ex. M at 168-69.
After the warning was given, Medina unveiled the TRO and served it on Nakila.
Id. at 169. After that, Medina contends that Zippy’s “said they was going to set up
something for us, and everything was going to be okay and we can work[.]” Id. at
175. According to Medina, she “didn’t work with [Nakila] after the TRO was
served,” id. at 180, although she contends she later lost work time because she had
to leave an hour early to avoid interacting with Nakila. Doc. No. 30-1, Pl.’s Decl.
¶ 97; Doc. No. 25, Def.’s CSF ¶ 15. Zippy’s payroll records, however, show that
Medina worked the same number of hours both before and after the TRO was
issued. Doc. No. 25, Def.’s CSF ¶ 16.
4.

The October 21, 2010 Incident
On October 21, 2010, Medina was involved in a workplace altercation

with another employee, Jeanette Olivera (“Olivera”). For the last two hours of the
shift, Medina contends that Olivera “started sitting me three tables at a time.” Doc.
No. 25-14, Rand Decl. Ex. M at 219. Medina told Olivera, “how come you not
picking up tables?” id. at 220, to which Olivera allegedly responded, “Frick you. I
have tables.” Id. Medina reported these circumstances to the manager, Ronald,
8

who responded by indicating he would talk to Olivera. Id. at 221. Medina
contends that the tables were not distributed evenly, and that Olivera then refused
to help her with a difficult customer. Id.; see also Doc. No. 30-1, Pl.’s Decl. ¶ 99.
Medina testified that, after she spoke with Ronald, Ronald told her that they were
arguing and fighting, and if they did not stop, “he’s gonna write us up.” Doc. No.
25-14, Rand Decl. Ex. M at 227; see also Doc. No. 30-1, Pl.’s Decl. ¶ 100.
The restaurant uses a board to roughly indicate the distribution of
tables amongst wait help. Doc. No. 25-14, Rand Decl. Ex. M at 222. The
distribution is noted by a simple tally of the number of tables assigned to each
person. See, e.g., Doc. No. 25-9, Rand Decl. Ex. H. After reporting the
circumstances to Ronald, Medina contends that she noticed the board incorrectly
reflected the table distribution. Id. at 221 (“She had her lines all the way across
and I was . . . way behind her. And I was thinking, how can that be ‘cause I have
all these customers and she barely had anybody.”). Medina responded by erasing
the board. Id. at 222.
Medina admitted that she erased the board because the board was
wrong and she wanted to “even out” the assignments, but also testified that the
board is normally only erased when the assignments are equal and the board is
filled, at which point “we start all over again.” Id. at 229; Doc. No. 25, Def.’s CSF
9

¶ 20. Medina stated that, in this instance, she was erasing it “because [she] thought
[Olivera] had not put what was correct on the board.” Doc. No. 25-14, Rand Decl.
Ex. M at 229. That is, although (as Medina describes it) “we erase it all day,” id. at
222, Medina acknowledged that this erasure was different. Id. at 230 (Q: This was
a different situation? A: Yes, because she was obviously trying to give me more
tables after that. . . . So I didn’t wanna play that game with her.”). Further, Medina
explained that she did not tell Ronald she was going to erase the board because it
was wrong, but because “he should have went up there when I talked to him and
looked [at] it and done something about it.” Id. at 229.
And, indeed, after Medina erased the board, Olivera “started going
off.” Id. at 227. That is, Olivera “was yelling and there was customers in the
restaurant.” Id. at 231. Medina says she walked away, and that “[a]fter [Olivera]
yelled at me in the kitchen . . . I just did my side work, finished up my tables, and I
left.” Id.
5.

Medina’s Employment Is Terminated
On October 28, 2010, Medina received a call from a manager at

Zippy’s telling her to stay home “because he heard that [she] had a confrontation
with [Olivera].” Doc. No. 30-1, Pl.’s Decl. ¶ 104. The next day, Medina met with
Goya at the restaurant, and was given a chance “to tell [her] side of the story.”
10

Doc. No. 25-14, Rand Decl. Ex. M at 238. On November 2, 2010, Goya called
Medina, and Medina agreed to a meeting at Goya’s office for November 3, 2010.
Id. at 240-41. Medina testified that, after thinking about it, she called Goya back
and asked Goya if she was going to be fired. Id. at 243. After Goya responded “oh
yes, that’s gonna come up,” Medina told Goya “I’m not gonna come down there to
sign any papers and waste my gas.” Id. At that point, Zippy’s terminated
Medina’s employment. See Doc. No. 25-16, Goya Decl. ¶ 4.
Goya attests that she “was aware of Medina’s prior confrontations
with Nakila” where she “had specifically told her that it was her last chance and on
the next occasion she would be terminated.” Id. Goya “agreed with the
recommendation of the Store Manager, Troy Kane, that Medina’s employment
should be terminated,” and that the decision “centered solely on Medina’s
performance issues and had nothing to do with age and gender.” Id. She concludes
that “Medina’s employment was terminated due to Medina’s continued misconduct
in the October 21, 2010 altercation with Olivera.” Id.
B.

Procedural Background
On April 28, 2011, Medina filed an administrative charge of

discrimination with both the Hawaii Civil Rights Commission (“HCRC”) and the
Equal Employment Opportunity Commission, asserting that her termination was
11

improperly based on her age, gender, and in retaliation for opposing discrimination.
Doc. No. 25-12, Rand Decl. Ex. K. On September 21, 2011, the HCRC issued a
“right to sue” letter, recommending that “the case be closed on the basis of no
cause.” Id. Ex. L.
On February 12, 2012, Plaintiff filed suit in the Circuit Court of the
First Circuit, State of Hawaii. Doc. No. 1-2. Her Complaint alleges (1) violations
of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., for genderbased discrimination and retaliation (Count One); (2) violations of the Age
Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633a, for agebased discrimination and retaliation (Count Two); (3) violations of the HWPA
(Count Three); (4) intentional infliction of emotional distress (Count Four);
(5) breach of contract (Count Five); and (6) promissory estoppel (Count Six).
Given the federal claims, Zippy’s removed the action to federal court on June 26,
2012. Doc. No. 1.
On March 6, 2013, Zippy’s filed its Motion for Summary Judgment.
Doc. No. 24. Plaintiff filed her Opposition on May 7, 2013. Doc. No. 29. As
noted above, she does not oppose dismissal of her claims for emotional distress,
breach of contract, and promissory estoppel. Id. at 3. Zippy’s filed a Reply on

12

May 14, 2013. Doc. No. 33. The Motion was heard on May 29, 2013.7
III. STANDARD OF REVIEW
Summary judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). Rule 56(a) mandates summary judgment “against a party who
fails to make a showing sufficient to establish the existence of an element essential
to the party’s case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of
Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of identifying those portions of
the pleadings and discovery responses that demonstrate the absence of a genuine
issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th
Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah’s
Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has
carried its burden under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts [and] come forward

7

After the hearing, Zippy’s filed a Supplement to its Motion. Doc. No. 36. Because this
Supplement was filed without leave of court, it is stricken and will not be considered by the
court.
13

with specific facts showing that there is a genuine issue for trial.” Matsushita Elec.
Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (citation and internal
quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247-48 (1986) (stating that a party cannot “rest upon the mere allegations or
denials of his pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient evidentiary basis on
which a reasonable fact finder could find for the nonmoving party, and a dispute is
‘material’ only if it could affect the outcome of the suit under the governing law.”
In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at
248). When considering the evidence on a motion for summary judgment, the
court must draw all reasonable inferences on behalf of the nonmoving party.
Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence
of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn
in his favor.” (citations omitted)).
IV. DISCUSSION
Given Plaintiff’s concession as to Counts Four, Five, and Six, the
remaining claims against Zippy’s are (1) violations of Title VII for gender-based
discrimination and retaliation; (2) violations of the ADEA for age-based
14

discrimination and retaliation;8 and (3) violations of the HWPA. The court first
addresses the federal claims in Counts One and Two, and then discusses whether to
reach the merits of Count Three.
A.

Count One: Title VII Gender Discrimination
Medina asserts a claim under Title VII based on allegations of illegal

gender discrimination in employment. Title VII makes it illegal for an employer to
discriminate on the basis of an individual’s “race, color, religion, sex, or national
origin.” 42 U.S.C. § 2000e-2(a)(1). Zippy’s moves for summary judgment,
contending that Medina cannot establish a prima facie case of gender
discrimination. It further argues that, even if Medina could make a prima facie
case, Zippy’s had a legitimate, non-discriminatory reason for her termination and
Medina cannot establish that the reason was a pretext for illegal discrimination.
1.

Analyzing Title VII Claims at Summary Judgment
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), provides a

useful and accepted framework to address Title VII claims, although nothing

8

Plaintiff alleges retaliation, although it is unclear whether her claim is based on
retaliation under (1) Title VII’s anti-retaliation provision, 42 U.S.C. § 2000e-3(a); (2) the
ADEA’s anti-retaliation provision, 29 U.S.C. § 623(d); or (3) only under the HWPA. The court
analyzes retaliation under both federal counts, mindful that “the ADEA anti-retaliation provision
is ‘parallel to the anti-retaliation provision contained in Title VII,’ and that ‘cases interpreting
the latter provision are frequently relied upon in interpreting the former.’” Hashimoto v. Dalton,
118 F.3d 671, 675 n.1 (9th Cir. 1997) (quoting Passer v. Am. Chem. Soc., 935 F.2d 322, 330
(D.C. Cir. 1991)).
15

requires the parties to invoke it. McGinest v. GTE Serv. Corp., 360 F.3d 1103,
1122 (9th Cir. 2004) (citing Costa v. Desert Palace, 299 F.3d 838, 855 (2002) (en
banc)). It is “a tool to assist plaintiffs at the summary judgment stage” in cases
where there may be “difficulties [in] proving intent to discriminate in a disparate
treatment context.” Costa, 299 F.3d at 854. 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
demonstrating” discriminatory intent. Id. That is, a plaintiff may respond by
producing evidence “demonstrating that a discriminatory reason more likely than
not motivated the employer.” Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105
(9th Cir. 2008) (quoting Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir. 2007)).
Here, the parties present their respective arguments under the traditional
McDonnell Douglas framework.
Under McDonnell Douglas, Plaintiff has the initial burden to establish
a prima facie case of discrimination. EEOC v. Boeing Co., 577 F.3d 1044, 1049
(9th Cir. 2009) (citation and quotation omitted). A prima facie case under
McDonnell Douglas requires a plaintiff to offer proof that: (1) she belongs to a
protected class; (2) she performed her job adequately or satisfactorily; (3) she
suffered an adverse employment action such as termination or demotion; and
16

(4) other similarly situated employees who do not belong to the same protected
class were treated differently. McDonnell Douglas, 411 U.S. at 802; see 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).
“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). If Plaintiff puts forth
her prima facie claim, the burden then shifts to Defendant to put forward a
legitimate, non-discriminatory reason for its actions. If Defendant proffers such a
reason, the burden shifts back to Plaintiff to show that Defendant’s reason is
actually a pretext for discrimination. Boeing Co., 577 F.3d at 1049 (citation and
quotation omitted).
“[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
17

Cir. 1986). “A plaintiff can show pretext directly, by showing that discrimination
[or retaliation] 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 [or retaliatory] statements or
actions by the employer.” Coghlan, 349 F.3d at 1095. Circumstantial evidence
requires an additional inferential step to demonstrate discrimination. Id.
2.

Application of Framework to Gender-based Allegations
At the first stage -- whether Medina has established a prima facie case

-- the parties do not dispute that Medina is a member of a protected class (female)
and that she suffered an “adverse employment action” (her termination on
November 2, 2010). Zippy’s, however, disputes both the second element (whether
Medina was performing her job adequately or satisfactorily) and the fourth element
(whether a similarly-situated male employee was treated differently).
a.

From Zippy’s perspective, Medina was not “performing her job
adequately or satisfactorily”

As to job performance, Zippy’s points to the October 21, 2010
altercation between Olivera and Medina, during which Medina improperly erased
the board that noted the assignment of tables. See Doc. No. 25-16, Goya Decl. ¶ 4
18

(“Medina’s employment was terminated due to Medina’s continued misconduct in
the October 21, 2010 altercation with Olivera”). Medina, however, argues that it
was normal for her to erase the board because it was done on a regular basis -- the
point apparently being that Medina’s actions were not improper. But the
uncontested record demonstrates otherwise.
It is undisputed that, after Medina notified the manager (Ronald) of
the dispute regarding the distribution of tables, Ronald told Medina “if we don’t
stop, he’s gonna write us up.” Doc. No. 25-14, Rand Decl. Ex. M at 227; see also
id. at 228 (“Q: And he said if you don’t stop it, he’s going to write you both up?
A: Yes, and he just letting me know.”).
It is also undisputed that Medina erased the board during the incident
because she thought it listed wrong information and she wanted to “even out” the
assignments -- it was not the “usual” situation where a board is erased when the
assignments are equal and “we start all over again.” Id. at 229; Doc. No. 25, Def.’s
CSF ¶ 20. Medina acknowledged that she “[wasn’t] erasing it because [she and
Olivera] were even. [She was] erasing it because [she] thought [Olivera] had not
put what was correct on the board.” Doc. No. 25-14, Rand Decl. Ex. M at 229.
And she admitted she did so only after being dissatisfied with the manager’s
actions. See id. (“Q: Did you say to Ronald, ‘you know, I’m gonna erase the board
19

because it’s not even’? A: No, because he should have went up there when I
talked to him and looked [at] it and done something about it.”). Further, Medina’s
actions appear to have escalated the situation. She testified that after she erased the
board, Olivera “was yelling and there was customers in the restaurant so I walked
away. . . . After she yelled at me in the kitchen? After that, I just did my side
work, finished up my tables, and I left.” Id. at 231.
And it is also undisputed that Zippy’s had previously warned Medina
-- as she admits and as is documented in Zippy’s personnel records -- on February
9, 2010 that the “next incident” could or would result in termination. Doc. No. 2514, Rand Decl. Ex. M at 168-69; Doc. No. 25-7, Rand Decl. Ex. F at 2; Doc. No.
25-17, Goya Decl. Ex. A.
Thus, the record amply supports Zippy’s position that Medina was not
performing satisfactorily when she was terminated. At first glance, erasing the
board might not appear serious. But viewed in context where the behavior was part
of an altercation with another employee and involved Medina’s dissatisfaction with
her manager’s actions (or inactions), there is no dispute that Zippy’s thought
Medina’s behavior was improper. Cf. Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1063 (2002) (“[C]ourts only require that an employer honestly believed its
reasons for its actions, even if its reason is foolish or trivial or even baseless.”)
20

(citation and internal quotation marks omitted). That is, “it is not clear that
[Medina] was performing her job ‘well enough to rule out the possibility that she
was fired for inadequate job performance.’” Id. at 1062 n.8 (quoting Pejic v.
Hughes Helicopters, Inc., 840 F.2d 667, 672 (9th Cir. 1988)).
b.

No other similarly-situated males were treated differently

Zippy’s also contends that Medina cannot meet the fourth element of
her prima facie case: that a similarly-situated male was treated differently than her.
In this regard, Medina identifies only Nakila as such an individual. Doc. No. 29,
Pl.’s Opp’n at 14.
But clearly Nakila was not “similarly situated.” True, Nakila and
Medina were both disciplined in February 2010, and Nakila was not later
terminated (at least as of the date of Medina’s termination).9 The record, however,
contains no evidence indicating that Nakila had any event similar to Medina’s
October 21, 2010 “board-erasing” incident after February 2010. That is, according
to the record, Medina had another incident of unsatisfactory performance but
Nakila did not. See Hawn, 615 F.3d at 1157 (reiterating that to be “similarly
situated” employees must be similar “in all material respects”) (citations omitted).

9

Medina testified that she “heard [Nakila] got fired for giving free food” although she
did not know when that occurred. Doc. No. 25-14, Rand Decl. Ex. M at 276.
21

And Medina has not identified any other male employee that was not terminated
with her same record, and with a similar workplace incident as occurred on
October 21, 2010.
c.

Zippy’s has proffered a legitimate, non-discriminatory reason
for termination, and there is no evidence of pretext

Although Medina has failed to make a prima facie case of gender
discrimination, the court nevertheless proceeds with the McDonnell Douglas
analysis, given that the degree of proof necessary to establish a prima facie case is
“minimal.” Cordova, 124 F.3d at 1148. That is, even if Medina’s arguments -construed in her favor -- could create a prima facie case, Zippy’s has identified a
legitimate, non-discriminatory reason for Plaintiff’s termination: the October 21,
2010 incident with Olivera where Medina erased the board. As discussed above,
Zippy’s was well within its prerogative to consider Medina’s altercation with
Olivera (and Medina’s erasing the board) to constitute unsatisfactory job
performance that followed a prior warning.10
In turn, Medina has no evidence that suggests the incident was a
pretext for gender discrimination, much less the required “specific and substantial”
10

The October 21, 2010 incident is analyzed at both the prima facie and pretext stages,
although by different standards. See Hawn, 615 F.3d at 1158-59 (“Even though a comparison to
“similarly situated” individuals may be relevant both to plaintiffs’ prima facie case and proof of
pretext, these inquiries constitute distinct stages of the McDonnell Douglas burden-shifting
analysis.”).
22

circumstantial evidence. See Becerril, 587 F.3d at 1163. She has absolutely no
direct evidence that Medina’s gender “more likely motivated” Zippy’s to terminate
her. See Coghlan, 349 F.3d at 1095. Nor, for a circumstantial case, does she have
evidence that Zippy’s’ “explanation is unworthy of credence.” Vasquez, 349 F.3d
at 641. Undisputably, Medina and Olivera were involved in a verbal altercation on
October 21, 2010 (regardless of any factual dispute as to who was at fault), and
Medina admitted that she erased the board because she thought it reflected the
wrong information -- after being dissatisfied with the manager’s actions. And she
acknowledges that she erased the board in a different situation than normal (it was
not because the board’s tally was equal, but it was because she believed it was
wrong and Olivera was using it to distribute the work unevenly). Thus, even if
Medina’s deposition testimony could create a dispute of fact as to whether
information on the board was wrong, there is no dispute that Zippy’s legitimately
considered the altercation and related events to be inappropriate. See Villiarimo,
281 F.3d at 1063 (“In judging whether [defendant’s] proffered justifications were
‘false,’ it is not important whether they were objectively false (e.g., whether
[plaintiff] actually lied). Rather, courts only require that an employer honestly
believed its reason for its actions, even if its reason is foolish or trivial or even
baseless.”) (citation and internal quotation marks omitted). There is no evidence
23

that the October 21, 2010 incident was contrived, much less any evidence that
Zippy’s “did not honestly believe its proffered reason[].” Id.
In short, Medina has no evidence to establish that her termination was
based on illegal gender discrimination. Perhaps it was not necessary to terminate
her for the October 21, 2010 incident. And perhaps Medina believes Zippy’s did
not recognize her good work habits, focusing instead on isolated incidents of
workplace altercations. See Doc. No. 30-1, Pl.’s Decl. ¶¶ 31-33. But the question
before the court is not whether Zippy’s should have discharged Medina. See
Simms v. Oklahoma ex rel Dep’t of Mental Health & Substance Abuse Servs., 165
F.3d 1321, 1329 (10th Cir. 1999) (observing that it is not the role of federal courts
to “act as a super personnel department that second guesses employers’ business
judgments”). Rather, the question here is whether Zippy’s improperly discharged
her because of her gender, in violation of federal law. In that regard, there is no
genuine issue of material fact -- under the applicable analysis, Medina’s
termination did not violate Title VII’s mandate against gender discrimination in
employment.
B.

Count One: Title VII Retaliation
Medina appears to contend that she was retaliated against for making

certain complaints. Doc. No. 29, Pl.’s Opp’n at 13, 17; Doc. No. 25-12, Rand
24

Decl. Ex. K As noted above, it is unclear whether she is basing this allegation on
Title VII, the ADEA, or solely under state law. What is clear here, however, is that
Zippy’s is entitled to summary judgment to the extent Plaintiff is attempting to
claim retaliation under Title VII.
Under Title VII, an employer may not discriminate against an
employee because the employee has opposed an employment practice made
unlawful by Title VII. See 42 U.S.C. § 2000e-3(a) (“It shall be an unlawful
employment practice for an employer to discriminate against any of his
employees . . . because he has opposed any practice [prohibited by Title VII] . . . or
because he has made a charge, testified, assisted, or participated in any manner in
an investigation, proceeding, or hearing under [Title VII].”); Burlington N. & Santa
Fe Ry. Co. v. White, 548 U.S. 53, 59 (2006) (“Title VII’s anti-retaliation provision
forbids employer actions that discriminate against an employee . . . because he has
opposed a practice that Title VII forbids or has made a charge, testified, assisted, or
participated in a Title VII investigation, proceeding, or hearing.” (citations and
quotation signals omitted)).
But there is absolutely no evidence that Medina ever reported, made a
charge, or opposed any incident of gender discrimination. At most, she reported
incidents of age-related remarks to management in 2009 (analyzed below), but
25

Medina made no similar reports of inappropriate remarks about gender. There is
thus no basis for a claim that Medina’s termination could have been based on
retaliation for opposing gender discrimination.11
Medina also appears to contend that her termination was related to (or
in retaliation for) her filing a TRO against Nakila in February 2010. But, although
such an allegation might be relevant towards a state-law HWPA claim -- an
assertion that the court ultimately does not reach -- it cannot be a basis for a Title
VII-based retaliation claim. Section 2000e-3(a) protects against retaliation for
opposing “an employment practice made unlawful” by Title VII -- not for opposing
employment practices made unlawful under state law. Even if Zippy’s terminated
Medina because she opposed or reported a violation of state law in February 2010,
when she filed the TRO against Nakila, such opposition would not be opposition to
a Title VII violation. It thus could not trigger § 2000e-3(a). Accordingly, there is
no basis for a Title VII retaliation claim.
C.

Count Two: Age Discrimination in Employment
Initially, Zippy’s contends correctly that the alleged remarks made by

co-worker Rudy (“old, fat, and jiggly”) and by Nakila (“too bad there wasn’t a pill
11

Even if there were, Medina would also need to establish “a causal link between her
involvement in the protected activity and the adverse personnel action undertaken by the
defendant[].” Freitag v. Ayers, 468 F.3d 528, 541 (9th Cir. 2006). She has no evidence to
establish this element.
26

for being old,” and “you know how it is when you get old, yeah? Certain things
happen.”), by themselves, are time-barred. “Title VII and the ADEA both require
that an aggrieved party file a charge with the EEOC within 300 days of the
allegedly unlawful practice to preserve a claim for a subsequent civil suit.”
Kagawa v. First Hawaiian Bank/Bancwest Corp., 819 F. Supp. 2d 1125, 1130 (D.
Haw. 2011) (citing 42 U.S.C. § 2000e-5(e)(1) (Title VII), and 29 U.S.C. § 626(d)
(ADEA)).12 It is undisputed that those three remarks occurred before February
2010. Similarly, any evidence that Nakila made similar comments to other staff at
Zippy’s (Doc. No. 30-1, Pl.’s Decl. ¶¶ 46-47) concerns events in 2009. Medina
filed her administrative charge on April 28, 2011, thus barring any discriminatory

12

In any event, these remarks, which were not made by anyone in Zippy’s management,
are nothing more than “stray remarks,” insufficient by themselves to demonstrate age
discrimination by Zippy’s. See, e.g., Nidds v. Schindler Elevator Corp., 113 F.3d 912, 919 (9th
Cir. 1996) (granting summary judgment to employer who talked about “old timers” because it
was ambiguous and not tied to termination); Merrick v. Farmers Ins. Grp., 892 F.2d 1434,
1438-39 (9th Cir. 1990) (holding that an employer’s statement that it hired “a bright, intelligent,
knowledgeable young man” was a stray remark that did not preclude summary judgment for
employer). And to the extent Medina contends such comments created a “hostile environment”
for older workers, viewed in context, the comments were not “severe or pervasive” so as to alter
the conditions of the workplace. See, e.g., Brooks v. City of San Mateo, 229 F.3d 917, 923 (9th
Cir. 2000) (“In order to prevail on her 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 her employment”) (brackets, ellipses, and quotation marks
omitted); Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (“[O]ffhand comments . . .
and isolated incidents (unless extremely serious) will not amount to discriminatory changes in
the terms and conditions of employment.”) (internal quotation marks and citation omitted).
27

events that occurred before July 2, 2010.13 These age-based comments were made
well before that date.
1.

Medina’s Termination Was Not an Act of Age Discrimination
The remaining question, then, is whether Medina’s termination on

November 2, 2010 could have been an illegal act of age discrimination. Again, the
McDonnell Douglas framework applies, just as it does for Medina’s Title VII
claim. See Shelley v. Green, 666 F.3d 599, 607-08 (9th Cir. 2012) (noting that the
McDonnell Douglas burden-shifting framework applies to ADEA claims evaluated
in the context of a summary judgment motion). The court thus examines whether
Medina has made a prima facie showing of age discrimination, and if so, whether
Zippy’s has proffered a legitimate, non-discriminatory reason for termination.
Medina must then demonstrate a triable issue of fact as to whether that reason was
pretext for age discrimination. Id. at 608.
To establish a prima facie showing under the ADEA, a plaintiff must
demonstrate that: (1) she was at least forty years old; (2) she was performing her
job satisfactorily; (3) she experienced an adverse employment action; and (4) she

13

“[F]iling a timely charge of discrimination with the EEOC is not a jurisdictional
prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject
to waiver, estoppel, and equitable tolling.” Zipes v. Trans World Airlines, Inc., 455 U.S. 385,
393 (1982) (footnote omitted). Nevertheless, Medina has no evidence that waiver, estoppel, or
equitable tolling should apply in this case.
28

was either “replaced by substantially younger employees with equal or inferior
qualifications or discharged under circumstances otherwise ‘giving rise to an
inference of age discrimination.’” Diaz v. Eagle Produce Ltd. P’ship, 521 F.3d
1201, 1207 (9th Cir. 2008) (quoting Coleman v. Quaker Oats Co., 232 F.3d 1271,
1281 (9th Cir. 2000)).
Medina was over forty years old and was terminated. She fails,
however, to make a prima facie case of age discrimination largely for the same
reasons that she fails to make such a case for gender discrimination. As analyzed
above, Medina has not established that she was performing “satisfactorily.”
Zippy’s has demonstrated that, from its perspective, Medina had been involved in
prior incidents of verbal altercations with co-employees regarding assignment of
tables, and points again to the October 21, 2010 board-erasing incident with
Olivera as continued workplace misconduct. She had been warned that another
incident could result in termination. Moreover, she has not identified any
“substantially younger employee” who was similarly situated as her (i.e., with
equal or inferior qualifications) that replaced her, and she has no evidence “giving
rise to an inference of age discrimination.” Id.14 It is also of some significance that
14

Olivera was older than Medina, and was suspended for a week following the October
21, 2010 incident. Doc. No. 25-16, Goya Decl. ¶¶ 5-6. There is also no indication that Olivera
had a prior incident of misconduct (such as Medina’s January 2010 altercation with Nakila)
(continued...)
29

Goya, one of the primary decision-makers in Medina’s termination, was over sixty
years old. See, e.g., Fairchild v. Forma Scientific, Inc., 147 F.3d 567, 572 (7th Cir.
1998) (“[T]hat the decision maker is older than the terminated employee is
certainly significant in evaluating the evidence of discrimination.”).15
What’s more, even if Medina could establish a prima facie case of age
discrimination, Zippy’s has a legitimate, non-discriminatory reason for her
termination -- the October 21, 2010 incident with Olivera. As analyzed above
under Title VII, Medina has no evidence that this was a pretext for age
discrimination. Medina has no evidence that Zippy’s’ “explanation is unworthy of
credence,” Vasquez, 349 F.3d at 641, and there is no dispute that Zippy’s
legitimately considered the incident to be inappropriate. See Villiarimo, 281 F.3d
at 1063 (“In judging whether [defendant’s] proffered justifications were false, it is
not important whether they were objectively false (e.g., whether [plaintiff] actually
lied). Rather, courts only require that an employer honestly believed its reason for
its actions, even if its reason is foolish or trivial or even baseless.”) (citation and

14

(...continued)
where Olivera received a warning about possible termination.
15

Goya agreed with the recommendation of restaurant manager Kane that Medina’s
employment should be terminated. Doc. No. 25-16, Goya Decl. ¶ 4. The record does not reflect
Kane’s age, but Plaintiff does not assert -- and the record contains no evidence -- that Kane was
biased against her because of her age.
30

internal quotation marks omitted).
2.

Medina’s Termination Could Not Constitute Retaliation under the
ADEA
Next, although not clear, Medina may be asserting that her termination

constitutes illegal retaliation under the ADEA’s anti-retaliation provision, 29
U.S.C. § 623(d), which provides:
It shall be unlawful for an employer to discriminate
against any of his employees . . . because such individual
. . . has opposed any practice made unlawful by this
section, or because such individual . . . has made a
charge, testified, assisted, or participated in any manner
in an investigation, proceeding, or litigation under this
chapter.
As with Title VII, the McDonnell Douglas burden-shifting framework
also governs actions for retaliation the ADEA. Surrell, 518 F.3d at 1105. In this
context, if the employee establishes a prima face case of retaliation, the burden of
production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its allegedly retaliatory conduct. Metoyer, 504 F.3d at 931 n.6. The
employee must then provide evidence that creates a genuine issue of material fact
concerning whether the employer’s proffered nondiscriminatory reason is merely
pretext for age discrimination. Coleman, 232 F.3d at 1282. As with a Title VIIbased retaliation claim, to establish a claim of retaliation in violation of the ADEA,
a plaintiff must prove that (1) the plaintiff engaged in a protected activity, (2) the
31

plaintiff suffered an adverse employment action, and (3) there was a causal link
between the plaintiff’s protected activity and the adverse employment action.
Poland, 494 F.3d at 1179-80.
Here, construing the evidence in the light most favorable to Medina,
the only activity that could constitute “protected activity” under the ADEA was a
report Medina made to a manager that Nakila had made inappropriate comments
regarding her age. See Doc. No. 30-1, Pl.’s Decl. ¶ 49. Any such report, however,
was made before February 2010 -- at least eight months prior to Medina’s
termination in November 2010. The passage of time between the protected activity
and the adverse action, in the absence of any other evidence, strongly suggests a
lack of retaliatory motive. See, e.g., Villiarimo, 281 F.3d at 1065 (“A nearly 18month lapse between protected activity and an adverse employment action is
simply too long.”); Vasquez, 349 F.3d at 646 (finding no causal link where the
protected activity occurred thirteen months prior to the alleged adverse action and
where plaintiff provided no evidence of surrounding circumstances showing a
retaliatory motive); see also Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 27374 (2001) (reasoning that an “[adverse] action taken . . . 20 months later [than that
protected activity] suggests, by itself, no causality at all” and citing case law where
a three- and four-month period between the protected activity and adverse action
32

was not close enough, without more, to establish causation).
Moreover, even if Medina could establish some question as to a causal
link between her prior report of age-related remarks by co-employees in 2009 and
her termination in November 2010, Zippy’s certainly has a legitimate, nondiscriminatory reason for her termination -- the October 21, 2010 incident with
Olivera. And, again, Medina has no evidence of pretext. In short, for the same
reasons that the gender and age-based claims fail, Zippy’s is also entitled to
summary judgment on Medina’s claim of retaliation (to the extent it is grounded in
the ADEA).
D.

The Court Declines to Exercise Supplemental Jurisdiction over the
HWPA Claim
Zippy’s has obtained summary judgment in its favor on all of

Medina’s federal claims. The only claim remaining is Count Three for alleged
violations of the HWPA, a state law claim over which the court has only
supplemental jurisdiction.16 (There is no basis in the Complaint for jurisdiction
16

The HWPA provides:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment because:
(1) The employee, or a person acting on behalf of the employee,
reports or is about to report to the employer, or reports or is about
to report to a public body, verbally or in writing, a violation or a
(continued...)
33

based on diversity of citizenship, as Medina is a resident and citizen of Hawaii, and
Zippy’s is a Hawaii company.)
Under 28 U.S.C. § 1367(c)(3), “district courts may decline to exercise
supplemental jurisdiction . . . if . . . the district court has dismissed all claims over
which it has original jurisdiction[.]” “[W]hen deciding whether to exercise
supplemental jurisdiction, ‘a federal court should consider and weigh in each case,
and at every stage of the litigation, the values of judicial economy, convenience,
fairness, and comity.’” City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156,
173 (1997) (quoting Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 (1988));
Acri v. Varian Assocs., 114 F.3d 999, 1001 (9th Cir. 1997) (en banc).
Because state courts have the primary responsibility for developing
and applying state law, “the values of judicial economy, convenience, fairness and
comity” do not favor retaining jurisdiction in this case. See Acri, 114 F.3d at 1001
(providing that “in the usual case in which all federal-law claims are eliminated
before trial, the balance of factors will point towards declining to exercise

16

(...continued)
suspected violation of:
(A) A law, rule, ordinance, or regulation, adopted
pursuant to law of this State, a political subdivision
of this State, or the United States. . . .

HRS § 378-62.
34

jurisdiction over the remaining state-law claims” (quoting Carnegie-Mellon Univ.,
484 U.S. at 350 n.7)).
Therefore, the court declines to continue exercising supplemental
jurisdiction over the HWPA claim. The court does not address questions such as
whether filing a TRO against Nakila under state law constitutes a “report to a
public body” of “a suspected violation of” state law, or whether Medina was
discriminated against because of the TRO. This action was originally filed in state
court, and was removed by Zippy’s based on the existence of the federal claims,
which have all been dismissed. Accordingly, the action -- which now contains only
Count Three for an alleged violation of the HWPA -- is REMANDED to the First
Circuit Court of the State of Hawaii.
///
///
///
///
///
///
///
///
35

V. CONCLUSION
The court GRANTS Defendant FCH Enterprises, Inc., dba Zippys’
Restaurants’ Motion for Summary Judgment, Doc. No. 24, on all claims except
Count Three under the HWPA. The remainder of the action is REMANDED to the
First Circuit Court of the State of Hawaii.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii: June 19, 2013.

/s/ J. Michael Seabright
_____________________________
J. Michael Seabright
United States District Judge

Medina v. FCH Enters. Inc., dba Zippy’s Rests., Civ. No. 12-00364 JMS-KSC, Order Granting
in Part Defendant FCH Enterprises, Inc., dba Zippy’s Restaurants’ Motion for Summary
Judgment, and Remanding Remaining Action to the First Circuit Court of the State of Hawaii

36