Jackson v. Foodland Super Market, Limited et al
ORDER GRANTING DEFENDANT FOODLAND SUPER MARKET, LIMITED dba SACK N SAVE FOODS' MOTION FOR SUMMARY JUDGMENT (ECF No. 25 ). Signed by JUDGE HELEN GILLMOR on 7/25/13. ~ Defendant's Motion for Summary Judgment is GRANTED. Plain tiff consents to the granting of summary judgment as to the following claims: (Count II) Hostile Work Environment, (Count III) Infliction of Emotional Distress, and (Count IV) Defamation. Defendant's Motion for Summary Judgment is GRANTED with respect to (Count I) Violation of Hawaii Discrimination Laws. There are no remaining claims or parties herein. The Clerk of Court is DIRECTED to enter judgment in favor of Defendant and to close the case. (ecs, )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
FOODLAND SUPER MARKET, LIMITED, )
dba SACK N’ SAVE FOODS; JOHN
DOES 1-5; JANE DOES 1-5; DOE
CORPORATIONS 1-5; DOE LLCS 1-5; )
DOE PARTNERSHIPS 1-5; DOE NON- )
PROFIT ORGANIZATIONS 1-5; and )
DOE GOVERNMENTAL AGENCIES 1-5, )
LIZA A. JACKSON,
CIVIL NO. 12-00443 HG-RLP
ORDER GRANTING DEFENDANT FOODLAND SUPER MARKET, LIMITED dba SACK
N’ SAVE FOODS’ MOTION FOR SUMMARY JUDGMENT (ECF No. 25)
Plaintiff Liza A. Jackson, an African-American woman, claims
her employer, Defendant Foodland Super Market, dba Sack N’ Save
Foods, discriminated against her on the basis of race.
seeks relief under Hawaii state laws prohibiting race-based
discrimination by employers.
Plaintiff also asserts various other claims, including
hostile work environment, intentional infliction of emotional
distress, and defamation.
These claims are dismissed with
Defendant seeks summary judgment on all of Plaintiff's
Plaintiff has failed to show that she was subjected to
Defendant’s Motion for Summary Judgment (ECF No. 25) is
On November 14, 2011, Plaintiff Liza A. Jackson (“Jackson”)
filed a Complaint in the Circuit Court of the First Circuit,
State of Hawaii.
(ECF No. 1-1.)
On August 6, 2012, Defendant Foodland Super Market, dba Sack
N’ Save Foods, ("Foodland") removed the state court action to the
United States District Court, District of Hawaii.
(ECF No. 1.)
On April 4, 2013, Defendant filed its Motion for Summary
(ECF No. 25.)
Defendant also filed a separate Concise
Statement of Facts in support.
(ECF No. 26.)
On May 1, 2013, Plaintiff filed an Opposition to the Motion
for Summary Judgment.
(ECF No. 29.)
Plaintiff also filed a
separate Concise Statement of Facts in response to Defendant’s
Concise Statement of Facts.
(ECF No. 30.)
On May 22, 2013, Defendant filed a Reply.
(ECF No. 32.)
On June 19, 2013, the Court held a hearing on the Motion for
Plaintiff Jackson is an African-American woman.
In January 2009, Plaintiff was hired by Foodland to work as
(Complaint at ¶ 4, ECF No. 1-1.)
Plaintiff worked the
night shift while employed at Foodland.
(Id. at ¶ 10(a).)
In February 2010, Plaintiff was involved in two on the job
incidents with a coworker, Whisper Faaagi.
Faaagi reported both
incidents to Foodland management and human resources.
the first incident, Plaintiff received a first written warning
notice, dated February 15, 2010, from her supervisor, Rick Chang,
for violating the Rules of Conduct, including verbal harassment,
derogatory comments, profane language, and derogatory insults.
(Defendant’s SCSF at Ex. D, First Warning Notice, ECF No. 26-7.)
After the second incident with Faaagi, Mark Hirokawa, the
Assistant Director of Human Resources, issued a second written
warning notice indicating the dates of infraction as February 11,
2010 and February 16, 2010.
The warning stated that an
investigation by Human Resources confirmed that Plaintiff
violated Foodland’s harassment, workplace violence, employee
communication, and non-retaliation policies.
(Id. at Ex. G,
Second Warning Notice, ECF No. 26-10.)
On September 18, 2010, Plaintiff was involved in another
incident with a coworker, Medina Scott.
(Complaint at ¶ 10(j),
ECF No. 1-1; Declaration of Liza A. Jackson (“Jackson Decl.”) at
¶ 8, ECF No. 30-1.)
Scott reported the incident to Foodland
management and human resources.
(Declaration of Mark Hirokawa
(“Hirokawa Decl.”) at ¶ 4, ECF No. 26-3.)
On September 20, 2010, Plaintiff was suspended from work,
pending an investigation by Defendant for allegedly threatening
Scott on September 18, 2010.
(Complaint at ¶ 10(b), ECF No. 1-
On October 1, 2010, Plaintiff was terminated from her
position as a baker.
(Id. at ¶ 6.)
Assistant Director of Human
Resources Hirokawa made the decision to terminate Plaintiff.
(Hirokawa Decl. at ¶ 1-2, ECF No. 26-3.) On October 1, 2010,
Plaintiff received a termination letter from Hirokawa which
stated that Plaintiff was terminated due to violation of the
company policies and house rules regarding workplace violence,
personal conduct, and abusive language toward other employees.
(Complaint at ¶ 10(c).)
Plaintiff maintains that she was disciplined for the same
conduct that other non-African-American employees engaged in, but
were not disciplined for.
(Id. at ¶ 10(e).)
claims that three other employees violated the workplace violence
policy, but were not terminated.
(Id. at ¶ 10(l-o).)
On March 17, 2011, Plaintiff filed a Charge of
Discrimination with the Hawaii Civil Rights Commission ("HCRC"),
HCRC No. 16342.
(Complaint at ¶ 7, ECF No. 1-1; Defendant’s SCSF
at Ex. 0, Charge of Discrimination, ECF No. 26-18.)
also filed a Charge of Discrimination with the Equal Employment
Opportunity Commission ("EEOC"), EEOC No. 37B-2011-00026.
(Complaint at ¶ 7, ECF No. 1-1.)
On August 16, 2011, the HCRC issued a Right to Sue Letter.
On September 6, 2011, according to the Complaint, the EEOC
issued a Dismissal and Notice of Rights.
On November 14, 2011, Plaintiff filed a Complaint in Hawaii
Plaintiff alleges the following claims: (Count I)
Violation of Hawaii Discrimination Laws, (Count II) Hostile Work
Environment, (Count III) Infliction of Emotional Distress, and
(Count IV) Defamation.
In her Opposition to the Motion for Summary Judgment,
Plaintiff consented to have summary judgment granted as to her
claims for hostile work environment, intentional infliction of
emotional distress, and defamation.
(Opposition at 3, ECF NO.
Plaintiff’s Discrimination claim (Count I) remains at issue.
STANDARD OF REVIEW
Summary judgment is appropriate when there is no genuine
issue as to any material fact and the moving party is entitled to
judgment as a matter of law.
Fed. R. Civ. P. 56(c). To defeat
summary judgment there must be sufficient evidence that a
reasonable jury could return a verdict for the nonmoving party.
Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir.
The moving party has the initial burden of "identifying for
the court the 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. Pacific Elec. Contractors Ass'n, 809
F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 323 (1986)). The moving party, however, has no
burden to negate or disprove matters on which the opponent will
have the burden of proof at trial.
The moving party need not
produce any evidence at all on matters for which it does not have
the burden of proof. Celotex, 477 U.S. at 325. The moving party
must show, however, that there is no genuine issue of material
fact and that he or she is entitled to judgment as a matter of
That burden is met by pointing out to the district court
that there is an absence of evidence to support the non-moving
party’s case. Id.
If the moving party meets its burden, then the opposing
party may not defeat a motion for summary judgment in the absence
of probative evidence tending to support its legal theory.
Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282
(9th Cir. 1979).
The opposing party must present admissible
evidence showing that there is a genuine issue for trial. Fed. R.
Civ. P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044,
1049 (9th Cir. 1995). “If the evidence is merely colorable, or is
not significantly probative, summary judgment may be granted.”
Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 249-50 (1986)).
The court views the facts in the light most favorable to the
State Farm Fire & Casualty Co. v. Martin, 872
F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of
declarations, admissions, evidence obtained through discovery,
and matters judicially noticed.
Fed. R. Civ. P. 56(c); Celotex,
477 U.S. at 324. The opposing party cannot, however, stand on its
pleadings or simply assert that it will be able to discredit the
movant's evidence at trial. Fed. R. Civ. P. 56(e); T.W. Elec.
Serv., 809 F.2d at 630.
The opposing party cannot rest on mere
allegations or denials. Fed. R. Civ. P. 56(e); Gasaway v.
Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir.
When the non-moving party relies only on its own
affidavits to oppose summary judgment, it cannot rely on
conclusory allegations unsupported by factual data to create an
issue of material fact.
Hansen v. United States, 7 F.3d 137, 138
(9th Cir. 1993); see also National Steel Corp. v. Golden Eagle
Ins. Co., 121 F.3d 496, 502 (9th Cir. 1997).
Pursuant to Hawaii Revised Statute (“HRS”) § 368-11, any
individual claiming to be aggrieved by an alleged unlawful
discriminatory practice may file a complaint with the Hawaii
Civil Rights Commission’s executive director within one hundred
eighty dates after the date of the alleged discriminatory act.
Haw. Rev. Stat. § 368-11.
On March 17, 2011, Plaintiff filed her Charge of
Discrimination with the Hawaii Civil Rights Commission.
(Defendant’s SCSF at Ex. O, Charge of Discrimination, ECF No. 2618.)
Defendant argues that Plaintiff is time-barred from basing
her discrimination claim on any events that took place prior to
September, 18, 2010.
(Motion for Summary Judgment at 9, ECF No.
The one hundred eighty days timeliness requirement applies
to the date: “(1) Upon which the alleged unlawful discriminatory
practice occurred; or (2) Of the last occurrence in a pattern of
ongoing discriminatory practice.”
Haw Rev. Stat. § 368-11(c).
Plaintiff does not address the timeliness of her February
2010 allegations in her Opposition.
Viewing all inferences in
favor of the non-moving party, the Court will consider the
February 2010 allegations as they could arguably relate to a
patten of ongoing discriminatory practice.
Under HRS § 378-2, it is an unlawful discriminatory practice
“[f]or any employer to refuse to hire or employ or to bar or
discharge from employment, or otherwise discriminate against any
individual in compensation or in the terms, conditions, or
privileges of employment” because of race.
Haw. Rev. Stat. §
A claim of discrimination under HRS Chapter 378
is governed by the same test used by the federal courts in Title
Schefke v. Reliable Collection Agency, Ltd., 32 P.3d
52, 69–70 (Haw. 2000).
The burden of proof in discrimination cases has been
described as follows by the Ninth Circuit:
[A] plaintiff must first establish a prima facie case of
discrimination. If the plaintiff establishes a prima
facie case, the burden then shifts to the defendant to
articulate a legitimate nondiscriminatory reason for its
employment decision. Then, in order to prevail, the
plaintiff must demonstrate that the employer's alleged
reason for the adverse employment decision is a pretext
for another motive which is discriminatory.
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
A plaintiff may establish a prima facie case of
discrimination by producing direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than not
motivated the defendant.
McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1122 (9th Cir. 2004).
Alternatively, a Plaintiff may
proceed under the McDonnell Douglas burden-shifting framework to
establish a prima facie case.
Under McDonnell Douglas, a
plaintiff must prove: (1) she belongs to a protected class; (2)
she was performing her job satisfactorily; (3) she suffered an
adverse employment action; and (4) similarly situated employees
outside her protected class were treated more favorably.
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th
Plaintiff’s burden to establish a prima facie case of
Plaintiff concedes that this is not a case of direct
evidence of racial discrimination, and therefore she must proceed
under the McDonnell Douglas framework.
(Opposition at 8, ECF No.
Plaintiff belongs to a protected class
Plaintiff is an African-American, a protected class under
Plaintiff has not established that she was performing
her job satisfactorily
Defendant claims that Plaintiff’s violations of company
policies in February 2010 and September 2010 are illustrative of
unsatisfactory job performance.
15, ECF No. 25-3.)
(Motion for Summary Judgment at
Plaintiff has not presented any evidence to
demonstrate she was performing her job satisfactorily.
A plaintiff who violates company policy and fails to improve
her performance despite a warning has not demonstrated
See Diaz v. Eagle Produce Ltd. P'ship,
521 F.3d 1201, 1208 (9th Cir. 2008) (citing Mungro v. Giant Food,
Inc., 187 F.Supp.2d 518, 522 (D.Md. 2002).
Plaintiff has failed
to establish that her job performance at Foodland was
Plaintiff suffered an adverse employment action
It is undisputed that Plaintiff suffered an adverse
employment action, specifically the termination of her employment
on October 1, 2010.
Plaintiff has not shown that similarly situated
employees outside her protected class were treated more
“To survive summary judgment, a plaintiff must set forth
non-speculative evidence of specific facts, not sweeping
Cafasso, U.S. ex rel. v. Gen. Dynamics
C4 Sys., Inc., 637 F.3d 1047, 1061 (9th Cir. 2011).
are similarly situated when they have similar jobs and display
Vasquez v. Cnty. of Los Angeles, 349 F.3d 634,
641 (9th Cir. 2003).
To establish that an employer treated
another similarly situated employee more favorably, a plaintiff
must produce evidence that the other employee was involved in the
same type of offense as the plaintiff yet received a different
Plaintiff has only offered her own declaration to support
her allegations that she was treated differently than similarly
Under Fed. R. Civ. P. 56(c)(4), declarations
to support or oppose a motion for summary judgment must be made
on personal knowledge.
A district court will not consider an
affidavit that is not based on personal knowledge.
F.3d at 1178; Ward v. First Federal Savings Bank, 173 F.3d 611
(7th Cir. 1999).
In Wicker, the Ninth Circuit Court of Appeals
upheld a district court’s decision to strike portions of
affidavits not based on personal knowledge.
The appellate court
held that the affidavits lacked any facts demonstrating the
affiants attended the meeting in question, and therefore their
testimony could not be relied upon to recount negotiations that
allegedly occurred at the meeting.
Id. at 1178.
Plaintiff’s evidence of similarly situated
Plaintiff claims that similarly situated coworkers, not in
her protected class, engaged in violent conduct but were not
(Opposition at 11, ECF No. 29.)
In her declaration,
Sean, a male Caucasian dishwasher, struck another
female employee, Venus, on her head. The other
employee complained and Sean was suspended for
seven days, but was not terminated. (Jackson
Decl. at ¶ 15.)
Sean harassed two other male employees. One of
the other employees threatened to punch Sean.
Another employee, Richard, did hit Sean. Neither
Sean nor Richard were terminated. (Id. at ¶ 16.)
Sean also made a sexual comment to another
employee, but he was not suspended nor terminated.
(Id. at ¶ 17.)
A Samoan employee, Lazarus, held a knife and
threatened another female employee, Joji, because
Joji was in his way and Lazarus ordered that she
get out of his way. Lazarus was not disciplined.
(Id. at ¶ 18.)
Plaintiff’s declaration does not include any facts
demonstrating that other employees were not disciplined or were
issued warnings rather than being terminated for their allegedly
Plaintiff’s deposition testimony regarding
Plaintiff testified that she heard rumors in the bakery that
Sean had made a sexual comment to another worker.
(Reply at Ex.
A, Deposition of Liza Jackson at 106:11-19, ECF No. 32-2.)
Plaintiff also testified that she had no firsthand knowledge
about the incident, but had been told by another worker that
someone filed a sexual harassment complaint against Sean.
She had no further information about the sexual
Plaintiff’s allegation that Sean harassed other employees
was clarified in her deposition.
Plaintiff testified that she
witnessed Sean pinch a male employee.
(Id. at 107:12-108:1.)
Plaintiff could not recall the name of the male employee.
Plaintiff made no mention of anyone named Richard
punching Sean after Sean harassed another employee.
unclear from Plaintiff’s testimony if the pinching incident
occurred before or after the incident with Venus. (Compare
Jackson Decl. at 107:24-108:1 and 120:10-24.)
she informed Supervisor Rick Chang of the pinch, and Chang told
her he would speak to the male employee to hear his version of
(Id. at 121:10-22.)
Plaintiff does not know what
action was taken regarding the pinching incident and she does not
know if the incident was brought to the attention of Foodland
(Id. at 121:23-122:1.)
Plaintiff stated she learned of Sean’s incident with Venus
(Id. at 106:20-24.)
In her deposition, Plaintiff
described the incident involving Sean and Venus as Sean “bopped
one of the cake decorators upside of her head.”
(Id. at 105:20-
Plaintiff testified that she did not know if there was any
pending action or past discipline involving Sean at the time of
the incident with Venus.
(Id. at 121:6-9.)
that Sean did receive discipline for his incident with Venus in
the form of seven days suspension.
(Id. at 108:2-4.)
(ii) Plaintiff’s deposition testimony regarding
Plaintiff testified that she did not witness the incident
with Lazarus, she did not know whether the incident was brought
up to Foodland human resources, and she did not know whether
there was any prior disciplinary action pending against Lazarus.
Plaintiff cited discussions with her
coworker Joji as a source of her information regarding Lazarus.
Plaintiff has not provided sufficient evidence of
similarly situated employees
Plaintiff never witnessed Foodland management disciplining
other similarly situated employees.
Without knowledge of the
facts, there can be no inference that Foodland did not properly
address the other workers’ allegedly violent conduct.
v. Oregon ex rel. Bureau of Labor, 543 F.3d 1168, 1178 (9th Cir.
Plaintiff’s testimony regarding incidents she did not
personally witness is inadmissible because she lacked personal
See Block v. City of Los Angeles, 253 F.3d 410, 419
(9th Cir. 2001); U.S. for Use & Ben. of Conveyor Rental & Sales
Co. v. Aetna Cas. & Sur. Co., 981 F.2d 448, 454 (9th Cir.
1992)(affidavit submitted by plaintiff in opposition to summary
judgment motion was properly excluded by district court, since
allegations were not based upon personal knowledge of affiant as
required by Fed. R. Evid. 602).
Plaintiff’s testimony based on statements by Venus, Joji,
and other unnamed bakery personnel is also inadmissible hearsay.
Fed. R. Evid. 802.
Plaintiff’s general statement that Sean harassed other male
employees and was not terminated fails to amount to admissible,
specific, and probative evidence that Foodland treated her
differently than a similarly situated employee.
See Cafasso, 637
F.3d at 1061; see also Mizraim v. NCL Am., Inc., CIV. 11-00077
JMS, 2012 WL 6569300, *9 (D. Haw. Dec. 14, 2012) reconsideration
denied, CIV. 11-00077 JMS, 2013 WL 432926 (D. Haw. Feb. 4,
2013)(plaintiff’s conclusory allegations did not establish that
other employees received more favorable treatment).
Plaintiff has not established that other workers
were similarly situated
Even if Plaintiff’s evidence was accepted, she has failed
to establish that the other workers were similarly situated.
Plaintiff has not established that any other workers had been
issued warnings by Foodland prior to their incidents.
349 F.3d at 641 (other employees were not similarly situated
because they did not engage in the same type of offense as the
Conversely, Plaintiff’s two February 2010 incidents
were reported to Foodland by Faaagi, Plaintiff met with
Supervisor Chang and was issued a warning, and Foodland decided
to terminate Plaintiff’s employment after Scott reported
Plaintiff in September 2010 for similar conduct.
To the extent that Plaintiff suspects Foodland was aware of
the similar incidents by others, Plaintiff does not provide any
explanation describing how Foodland handled the other workers’
The record is void of any information explaining how
Foodland addressed and resolved the alleged Lazurus incident,
Sean’s alleged sexual comment, and Sean’s alleged harassment of
the male employees.
Plaintiff’s only evidence of disciplinary
action is her statement that Sean received a seven-day suspension
after the incident with Venus.
Plaintiff has not provided any
details as to whether Sean’s offense record was similar to hers,
or how Foodland handled the investigation of the Venus incident.
Plaintiff has not demonstrated that Foodland terminated
plaintiff’s employment when similarly situated employees were not
terminated for repeat violations of company policy.
2012 WL 6569300, *9; Day v. Sears Holdings Corp., Civ. No.
11-09068 MMM PJWX, 2013 WL 1010547, at *9 (C.D. Cal. Mar. 13,
2013)(no evidence that similar situated employees engaged in the
same misconduct as plaintiff without being disciplined).
Plaintiff has failed to meet the second and fourth
requirements of the McDonnell Douglas framework.
not presented sufficient evidence to establish a prima facie case
Defendant’s legitimate non-discriminatory reasons for their
The Defendant has met its burden to articulate non-
discriminatory reasons for their February 2010 disciplinary
actions and October 1, 2010 termination of Plaintiff’s
February 2010 Disciplinary Actions
On February 14, 2010, Plaintiff was involved in an incident
with her former coworker, Whisper Faaagi.
Faaagi complained to
Foodland Human Resources personnel, including Faaagi and
Jackson’s immediate supervisor, Pastry Chef Rick Chang, that
Jackson used repeated vulgarity towards her during their work
shift on February 14, 2013.
(Hirokawa Decl. At ¶ 4; Defendant’s
SCSF at Ex. E, ECF No. 26-8.)
Plaintiff admits that she used profane language towards
Faagai, (Plaintiff’s SCSF at 2, ECF No. 30), but only
specifically admits to having told Faaagi to “take her ass home
with her 20 kids.” (Defendant’s SCSF at Ex. A, Jackson Deposition
(“Jackson Deposition”) at 53:5-15, ECF No. 26-4.)
Plaintiff, the verbal confrontation began after Faagai said, in
reference to the type of music Plaintiff was listening to on the
radio, “what are you going to play, your kind of music, boom,
(Defendant’s SCSF at Ex. A, Jackson Deposition at
Plaintiff interpreted this statement as a racial
(Compl. at ¶ 10(f), ECF No. 1-1.)
she said she and Faaagi were not hostile toward one another at
the end of the shift.
After being informed of the February 14, 2010 incident by
both Plaintiff and Faaagi, Foodland conducted an investigation
into the incident.
Supervisor Chang reviewed the emails from
Faaagi, spoke with other employees who witnessed the incident, and
conferred with Foodland Commissary Director Melissa Pou.
(Defendant’s SCSF at Ex. E, ECF No. 26-8.)
On February 15, 2013, Supervisor Chang met with Plaintiff
Jackson to discuss the incident.
Jackson submitted a written
statement detailing her account of the incident to Chang.
(Defendant’s SCSF at Ex. C, ECF No. 26-6.)
Chang concluded that
Plaintiff Jackson had violated Foodland’s rule against verbal
harassment and issued a first written warning notice to Jackson.
The warning notice stated that Plaintiff violated House Rules of
Conduct 7.2.1 “Prohibited Harassment” by using derogatory
comments, profane language, and derogatory insults.
SCSF at Ex. D, First Warning Notice, ECF No. 26-7.)
reviewed the first warning notice, but refused to sign it.
deposition, Plaintiff explained that she did not sign the written
notice because she felt that everyone else in the commissary
swore, including Chang, and she was not going to allow Chang to
make an example out of her. (Defendant’s SCSF at Ex. A, Jackson
Decl. at 58:10-17.)
In her Complaint, Plaintiff states that she
did not sign the written notice because she claims other
employees, who were not African-American, swore and had
altercations in the workplace, but were not written up.
at ¶ 10(h), ECF No. 1-1.)
On February 22, 2010, Faaagi sent another email to the
Foodland Human Resources Department complaining that Plaintiff
confronted her after learning she had reported Plaintiff to
(Defendant’s SCSF at Ex. E, Email from Whisper
Faaagi, dated February 22, 2010, ECF No. 26-8.)
characterized Jackson’s actions as intimidating and
After Jackson told Faaagi, “I thought you
could fight your own battles,” Faaagi told their shift supervisor
that she did not want to work with Jackson and Faaagi then left
(Defendants’ SCSF at Ex. A, Jackson Deposition, 61:2-
Plaintiff admits she made negative remarks to Faaagi after
learning that Faaagi had reported her to management.
SCSF at 2, ECF No. 30; Defendant’s SCSF at ¶ 5, ECF No. 26.)
After the second confrontation, Assistant Human Resources
Director Hirokawa was notified by Commissary Director Pou of the
two incidents between Jackson and Faaagi.
Hirokawa reviewed a
seven-page fax from the store management documenting the two
(Hirokawa Decl. at ¶ 4.)
The fax included emails from
Faaagi complaining of Jackson’s conduct, notes made by Jackson,
notes from Supervisor Chang, an email summary of the incidents
from Supervisor Chang, and a copy of the first written warning
Hirokawa then concluded that Plaintiff had
violated Foodland’s employee policies and issued a second warning
notice to Plaintiff.
The second warning notice listed the dates
of the two infractions and stated: “FIRST AND FINAL WARNING.
further violation of any of the referenced policies will result in
further disciplinary action, including, but not limited to,
(Defendant’s SCSF at Ex. G.)
Defendants have offered a nondiscriminatory explanation for
the disciplinary actions.
After investigating the two incidents
between Jackson and Faaagi, Foodland concluded that Plaintiff
violated Foodland’s harassment, workplace violence, employee
communications, and non-retaliation policies based on her actions
(Defendant’s SCSF at Ex. G, Second Warning
Notice, ECF No. 26-10.)
Termination of Employment
On September 18, 2010, Plaintiff was involved in an incident
with a coworker, Medina Scott.
10(j); Jackson Decl. at ¶
Plaintiff claims she told Scott that a pie had been baked for
employees out of ingredients that were going to be thrown away.
(Jackson Decl. at ¶ 8.)
Plaintiff alleges that Scott then started
an argument with Plaintiff for trying to “set her up” because
employees were not supposed to eat store food products.
Scott reported Plaintiff to management.
In response, Plaintiff
allegedly raised her voice and spoke and acted in a threatening
manner towards Scott. (Defendant’s SCSF at Ex. B, Termination of
Employment letter dated October 1, 2010, ECF No. 26-5.)
verbal encounter with Scott, Plaintiff states she told Scott that
she understood why her teammates did not like Scott, because Scott
was always complaining or telling on someone to management.
(Defendant’s SCSF at Ex. C, Handwritten statement by Liza Jackson,
ECF No. 26-6.)
On September 20, 2010, Plaintiff was suspended pending an
investigation of the incident with Scott.
(Hirokawa Decl. at ¶
On October 1, 2010 Hirokawa terminated Plaintiff’s employment
and sent Plaintiff a letter explaining the reasons for her
termination, dated October 1, 2010.
Termination Letter, ECF No. 26-5.)
(Defendant’s SCSF at Ex. B,
Defendants have offered a nondiscriminatory explanation for
terminating Plaintiff’s employment.
Hirokawa states he made the
decision to terminate Jackson after reviewing written statements
obtained from Jackson and her co-workers regarding the September
18, 2010 incident with Scott.
Hirokawa concluded that Plaintiff
engaged in abusive and retaliatory behavior toward Scott.
(Hirokawa Decl. at ¶ 3.)
The September 2010 incident and the
earlier similar incident with Faaagi in February 2010 provided the
basis for her termination. (Id.)
Hirokawa states that the basis
for his decision to terminate Jackson was fully consistent with
discipline he previously imposed for similarly situated employees.
He cited, as an example, another non-African-American employee who
was terminated in February 2009 after Jackson had complained that
the employee used abusive language toward her.
(Id. at ¶ 8; see
also Defendant’s SCSF at Ex. M, Termination Letter to Kelly Pinol,
dated February 13, 2009, ECF No. 26-16.)
Defendant has met its burden to articulate legitimate
nondiscriminatory reasons for its disciplinary actions and
termination of Plaintiff’s employment.
Plaintiff has failed to carry her burden to show Defendant’s
proffered reasons were pretextual
The evidence required to show that an employer's explanation
is a pretext for discrimination has been described as follows.
If the employer [offers a nondiscriminatory reason for
its action], the plaintiff must show that the articulated
reason is pretextual “either directly by persuading the
court that a discriminatory reason more likely motivated
the employer or indirectly by showing that the employer's
proffered explanation is unworthy of credence.” Although
a plaintiff may rely on circumstantial evidence to show
pretext, such evidence must be both specific and
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062 (9th
Cir. 2002) (citations omitted); see also Wallis, 26 F.3d at 890
(citations omitted) (refuting the suggestion that a plaintiff may
defeat summary judgment by merely making a prima facie case).
Plaintiff has not presented any specific and substantial
evidence to show pretext
Plaintiff has not carried her burden to show that Foodland’s
disciplinary actions and decision to terminate her employment were
motivated by racial bias.
Plaintiff asserts that Foodland was
racially motivated because other employees used swear words and
engaged in violent behavior in the workplace without being
(Opposition at 9.)
Plaintiff has only offered her
own declaration to support her allegations that Foodland’s actions
were motivated by racial bias.
(Jackson Decl., ECF No. 30-1.).
The portions of Jackson’s declaration discussing other employees
using profane language and/or violating the violence policy are
inadmissible under Fed. R. Evid. 602 and Fed. R. Civ. P. 56
because her testimony is not based on personal knowledge.
253 F.3d at 419.
The general, non-specific allegations contained
in Plaintiff’s declaration also fail to carry her burden of
Cafasso, 637 F.3d at 1061
Plaintiff’s claim that she did not receive the second
written warning notice does not create a genuine issue
of material fact and does not establish pretext
Plaintiff attempts to create a genuine issue of material fact
by stating that she did not receive the second written warning
notice which contained the “First and Final Warning” language in
(Jackson Decl. at ¶ 13.)
Plaintiff claims that
“Defendants fabricated this document . . . for the sole purpose of
furthering its pretext for terminating Plaintiff.”
Plaintiff’s argument is unconvincing.
She admits that he
spoke with Supervisor Chang after the initial incident with
Even though Plaintiff refused to sign the first warning
from Chang, she does not deny that she was told she violated
Further, in determining whether an employer’s
proffered justification for an adverse employment action was
false, courts “only require that an employer honestly believed its
reason for its actions, even if its reason is ‘foolish or trivial
or even baseless.’”
Villiarimo, 281 F.3d at 1063.
It is not
important whether the employer’s beliefs were objectively false,
but rather the employee must present evidence that the employer
did not honestly believe its proffered reasons.
has not demonstrated that Foodland management, specifically
Supervisor Chang and Assistant Human Resources Director Hirokawa,
did not honestly believe that Plaintiff had violated Foodland’s
policies during her February and September 2010 incidents with her
Defendant has negated a showing of pretext
Defendant terminated a similarly situated coworker
for using profanity
Evidence that a similarly situated employee was treated in a
similar manner as a plaintiff negates a showing of pretext. Snead
v. Metropolitan Prop. & Cas. Ins. Co., 237 F.3d 1080, 1094 (9th
Foodland presented evidence that another similarly
situated coworker was fired after Plaintiff complained that he
used abusive language toward her.
Plaintiff admits that a
coworker was terminated in February 2009 for violence and cursing
(Jackson Decl. at ¶ 5.)
Foodland has negated a showing
Defendant hired a replacement baker who is of the
same race as the Plaintiff
Evidence that the person hired is of the same sex or race as
the plaintiff is extremely helpful to the defendant's rebuttal in
supporting an nondiscriminatory justification for its employment
Hannon v. Chater, 887 F. Supp. 1303, 1313 (N.D. Cal.
Foodland hired Plaintiff’s daughter, an African-American, as
her replacement in the bakery.
In her deposition, Plaintiff
stated that she had referred her daughter to Supervisor Chang, who
agreed to hire her daughter in the commissary.
Chang made this decision before the September 2010 incident, but
Foodland put the hiring on hold when the incident with Scott
(Defendant’s SCSF at Ex. A, Jackson Dep. at 127:1-
129:23, ECF No. 26-4.)
as her replacement.
Foodland later hired Plaintiff’s daughter
Plaintiff believed Foodland was motivated by
cost cutting when they fired her, and her daughter was hired at a
rate of $9 per hour, versus Plaintiff’s pay rate of $12 or $13 per
(Id. at 127:20-128:11.)
At the hearing, Plaintiff’s
counsel claimed Plaintiff’s daughter was hired to “cover up”
Defendant’s discriminatory actions because the daughter was hired
In her deposition, however, Plaintiff stated
she believed her daughter was fired after a little over a year of
employment at Foodland because of her attendance.
(Id. at 129:6-
Foodland’s nondiscriminatory justification for its
employment action against Plaintiff is supported by its hiring of
Plaintiff’s daughter, an African-American, as her replacement in
One of Plaintiff’s supervisors was African-American
When a decision maker is in the same racial group as the
employee complaining about an adverse decision, “the employee
faces a more difficult burden in establishing that a
discriminatory animus played a role in the decision complained
Holston v. Sports Auth., Inc., 136 F. Supp. 2d 1319, 1335
(N.D. Ga. 2000) aff'd, 251 F.3d 164 (11th Cir. 2001).
Foodland’s lack of pretext is also supported by the fact that
one of Plaintiff’s supervisors involved in her suspension and
termination, Joe Adorno, was African-American.
that Adorno self-identified as African-American.
SCSF at Ex. A, Jackson Deposition, 74:3-75:1.)
participated in Plaintiff’s suspension and investigation following
the September incident, and received Plaintiff’s statement
regarding the incident.
(Id. at 139:17-140:15.)
Plaintiff has not shown that Foodland’s explanations for its
employment actions were pretextual.
Plaintiff did not meet her burden to establish a prima facie
case of discrimination.
Even assuming Plaintiff established a
prima facie case, Defendant presented legitimate nondiscriminatory
reasons for its disciplinary actions in February 2010 and for its
decision to terminate Plaintiff on October 1, 2010.
failed to meet her burden to show these reasons were a pretext for
a discriminatory motive.
Defendant is entitled to summary
judgment as to the discrimination claim.
Defendant’s Motion for Summary Judgment is GRANTED.
Plaintiff consents to the granting of summary judgment as to
the following claims: (Count II) Hostile Work Environment, (Count
III) Infliction of Emotional Distress, and (Count IV) Defamation.
Defendant’s Motion for Summary Judgment is GRANTED with
respect to (Count I) Violation of Hawaii Discrimination Laws.
There are no remaining claims or parties herein.
The Clerk of Court is DIRECTED to enter judgment in favor of
Defendant and to close the case.
IT IS SO ORDERED.
July 25, 2013, Honolulu, Hawaii.
/S/ Helen Gillmor
United States District Judge
LIZA A. JACKSON v. FOODLAND SUPER MARKET, LIMITED, dba SACK N’
SAVE FOODS; CIV. NO. 12-00443 HG-RLP; ORDER GRANTING DEFENDANT
FOODLAND SUPER MARKET, LIMITED dba SACK N’ SAVE FOODS’ MOTION FOR
SUMMARY JUDGMENT (ECF No. 25)
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