Lewis v. Ameron International et al
ORDER GRANTING DEFENDANT AMERON INTERNATIONAL CORPORATION'S MOTION FOR SUMMARY JUDGMENT 61 . Signed by JUDGE DERRICK K. WATSON on 7/1/2014. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electr onic 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 HAWAI`I
LONZO LEWIS, III,
CIVIL NO. 12-00453 DKW-RLP
ORDER GRANTING DEFENDANT
CORPORATION’S MOTION FOR
AMERON INTERNATIONAL and
ORDER GRANTING DEFENDANT AMERON INTERNATIONAL
CORPORATION’S MOTION FOR SUMMARY JUDGMENT
Plaintiff Lonzo Lewis III alleges discrimination and hostile work
environment, principally caused by racial remarks made by co-workers in 2008, and
retaliation by his employer Ameron, when he was terminated in 2011 after
complaining about those remarks. Because Lewis has failed to establish a prima
facie claim of discrimination, hostile work environment, or retaliation, and because
Ameron terminated Lewis following an independent investigation that evidenced
Lewis’ repeated harassment of a co-worker, Ameron is entitled to summary
judgment on each of Lewis’ claims.
Defendant Ameron International (“Ameron”) hired Lewis as a welder
in 2000 and promoted him to a Foreman position in 2008. Lewis Decl. ¶ 2. There
is no dispute that, as with all Ameron employees, Lewis received Ameron’s policy
prohibiting workplace harassment (“Harassment Policy”), as well as its Workplace
Violence Policy, through postings on employee bulletin boards. Sato Decl. ¶¶ 3-4,
Ex. D; Mori-Mishina Decl. ¶ 4; Ex. E. These policies prohibit, among other things,
harassment and retaliation based on race, and set forth internal procedures to guide
employees who wish to complain of prohibited conduct. Exs. D & E.
In 2008, Lewis complained to management that co-worker Bernard
Kelii directed derogatory racial slurs, including “monkey ass,” at him and threatened
that his “days [were] numbered.” According to Ameron, Kelii never threatened
Lewis directly, but instead made these statements to co-workers outside of Lewis’
presence. West Decl. ¶ 6, Ex. A at 47-56. Nonetheless, Ameron hired a
third-party investigator to evaluate Lewis’ complaint, and on September 10, 2008,
Ameron terminated Kelii for violating Ameron’s Workplace Violence Policy and
Harassment Policy, as well as Ameron’s House Rules. West Decl. ¶ 8, Ex. A at 60;
Lewis Decl. ¶¶ 4-5.
According to Ameron, not long after Kelii was terminated, it received a
complaint from another employee that Lewis had been harassing and threatening
employees working under him and giving them unfair work assignments.
Mori-Mishina Decl. ¶ 5. Ameron again hired a third-party investigator, but
Ameron took no disciplinary action against Lewis because of the investigator’s
inability to substantiate the complaint. Mori-Mishina Decl. ¶ 5; Ex. A at 76; Ex. H.
In August 2008, Lewis complained to his supervisor, shop
superintendent, Alika Mancini, about being called a “monkey” and “monkey ass” by
daytime foreman Edwin Yamamoto, a friend of Kelii. According to Lewis, he
complained to Mancini about Yamamoto’s continued racial remarks as late as
August 2010, but no action was ever taken. Lewis Decl. ¶¶ 7, 10. Lewis also
complained to Mancini that someone urinated in his hard hat, and someone wrote
“NIG” on his truck and “nigger” on the wall of Ameron’s bathroom. Lewis Decl.
¶ 7. Throughout his employment, Lewis was the only African-American employed
at Ameron. Lewis Decl. ¶ 3.
In 2008, Brian Marumoto filed a complaint with management against
Lewis, as well as a stress-related worker’s compensation claim. Lewis Decl. ¶ 8.
Lewis testified at the worker’s compensation hearing on behalf of Ameron about his
interactions as Marumoto’s supervisor. According to Lewis, Marumoto’s worker’s
compensation claim was denied, and Marumoto held a grudge against him. Lewis
Decl. ¶ 9. In September 2010, Marumoto cut off part of his finger in an industrial
accident while working at Ameron. Lewis states that he twice asked Marumoto
about his finger, and on a third occasion, he and several other workers joked with
Marumoto about the severed finger. Marumoto filed a complaint against Lewis for
making harassing comments about his finger. Lewis Decl. ¶ 12. On November 1,
2010, Ameron suspended Lewis following Marumoto’s complaint, pending a
complete investigation. Lewis Decl. ¶ 14; Ex. 1.
Ameron hired attorney Susan Ichinose, who had previously done work
for Ameron, as an independent investigator in the matter. Ichinose interviewed
several Ameron employees and reviewed Ameron’s policies and House Rules. Ex.
J at 1-2. She twice interviewed Lewis with a union representative present. Ex. A
at 80-81; Ex. J at 2. In her January 5, 2011 report, Ichinose found that Lewis had
deliberately harassed Marumoto on three separate occasions. Ex. J at 18. The
report states that Lewis “engaged in offensive, demeaning, and provocative conduct
toward Mr. Marumoto. He did so in disregard of direct instructions by his superiors
to avoid such contact. He has also lied to the fact-finder in the course of this
investigation.” Ex. J at 18.
On January 18, 2011, Ameron terminated Lewis, based on Ichinose’s
findings. The Union grieved the termination, but an arbitration over the grievance
was delayed because of the death of the initial arbitrator. On June 1, 2013, a
substitute arbitrator issued a decision in favor of Lewis, substantiating many of
Ichinose’s factual findings, but determining that Ameron’s termination decision was
too harsh. Lewis was accordingly reinstated, effective June 1, 2013, with back pay.
Lewis Decl. ¶¶ 26-27; Ex. 10.
On March 9, 2011, Lewis completed a Pre-Complaint Questionnaire
with the Hawaii Civil Rights Commission (“HCRC”). He indicated in the
questionnaire that he had been harassed by Yamamoto and other Ameron
employees. Lewis Decl. ¶ 19, Ex. 3. On April 14, 2011, the matter was referred to
the EEOC, and on June 16, 2011, Lewis signed a Complaint with the EEOC
reporting that he had been discriminated against because of race and in retaliation for
opposing discrimination. Lewis Decl. ¶¶ 20-21, Ex. N. Lewis claims that he
received a Dismissal and Right to Sue letter from the HCRC on May 15, 2012.
Lewis Decl. ¶ 22, Ex. 6. He also claims that on April 12, 2012, the EEOC issued a
Dismissal and Notice of Rights letter, but that he did not receive it until August 7,
2012, in an envelope from the EEOC that was postmarked August 6, 2012. Lewis
Decl. ¶ 23; Ex. 7. At his deposition, however, Lewis indicated that he received the
EEOC letter in April 2012. Ex. C at 255-56. At the hearing on the motion, Lewis’
counsel represented that Lewis, who was proceeding pro se at the relevant time in
2012, did not receive the letter until August 7, 2012.
Lewis filed the instant case on August 8, 2012, alleging that he was
terminated in retaliation for complaining about harassment, in violation of Title VII
of the Civil Rights Act of 1948 and Hawaii Revised Statutes Chapter 378.
According to Lewis, “[t]his is primarily a case of retaliation against Plaintiff for
reporting racial and discriminatory statement[s] made against him by a co-worker.”
Mem. in Opp. at 3. Ameron seeks summary judgment on all claims.
STANDARD OF REVIEW
Pursuant to Federal Rule of Civil Procedure 56(a), a party is entitled to
summary judgment “if the movant shows that there is no genuine dispute as to any
material fact and the movant is entitled to judgment as a matter of law.”
Timeliness of Lewis’ Claims
“Title VII provides that upon dismissing a charge of discrimination, the
EEOC must notify the claimant and inform her that she has ninety days to bring a
civil action.” Payan v. Aramark Mgmt. Servs. Ltd., 495 F.3d 1119, 1121 (9th Cir.
2007); 42 U.S.C. § 2000e-5(f)(1). “[T]his ninety-day period operates as a
limitations period. If a litigant does not file suit within ninety days [of] the date
EEOC dismisses a claim, then the action is time-barred.” Payan, 495 F.3d at 1121
(alteration in original) (citations omitted). The Ninth Circuit “measure[s] the start
of the limitations period from the date on which a right-to-sue notice arrived at the
claimant's address of record.” Id. at 1126. The mailbox rule is “a long-established
principle which presumes that, upon a showing of predicate facts that a
communication was sent, the communication reached its destination in regular
time.” Id. at 1123. Consequently, “proper and timely mailing of a document
raises a rebuttable presumption that it is received by the addressee.” Nunley v. City
of Los Angeles, 52 F.3d 792, 796 (9th Cir. 1995).
According to Ameron, the EEOC mailed the Right to Sue letter to
Lewis and Ameron’s counsel on April 12, 2012. See Profit Decl. 3-4 (showing the
“Date Mailed” of the dismissal notice as 4/12/12 and EEOC case log showing that
on 4/12/12, the EEOC “mail[ed] dismissal to” Charging Party and Respondent);
Ex. O. The deadline to file suit would have been July 14, 2012, or 90 days after
April 15, 2012, applying the three-day mailbox rule. Lewis did not file this lawsuit
until August 8, 2012.
When asked at his deposition if he received the EEOC Right to Sue
letter “in April of 2012,” Lewis responded, “I assume, yes.” Ex. C at 255-56. In
his Declaration, however, Lewis states that he did not receive the letter until August
7, 2012, in an envelope from EEOC postmarked August 6, 2012. Lewis Decl. ¶ 23;
Ex. 7. At oral argument, Lewis’ counsel confirmed that Lewis received the letter
for the first time on August 7, 2012. Viewing the evidence in the light most
favorable to Lewis, the Court finds a question of fact exists regarding when Lewis
first received the EEOC Right to Sue Letter, and, therefore, whether his August 8,
2012 complaint was timely. Summary judgment on the basis of timeliness is
Discrimination and Hostile Work Environment Claims
Title VII makes it illegal for an employer to discharge or otherwise
discriminate against an employee “because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a). Lewis’ complaint, filed pro se,
does not enumerate separate counts for discrimination or hostile work environment,
but sets forth allegations arguably implying such claims. And although Lewis
indicates that his case is primarily based on retaliation, Ameron moves for summary
judgment on any claims for (1) discrimination, because there is no evidence that
Lewis was treated differently on account of his race or national origin, and (2)
hostile work environment, on the grounds that such claim was not timely filed with
the administrative agency, and on the merits. The Court first addresses the claim
A person suffers disparate treatment in his or her employment when he
or she is singled out and treated less favorably than similarly situated individuals on
account of “race, color, religion, sex, or national origin.” In order to state a claim,
Lewis must establish that: (1) he belongs to a protected class; (2) he was qualified
for the position; (3) he was subject to an adverse employment action; and (4)
similarly situated individuals outside his protected class were treated more
favorably. Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123 (9th
Lewis’ opposition to the motion for summary judgment is silent with
respect to his discrimination claim and makes no attempt to establish a prima facie
case. Notably, he fails to provide evidence of any similarly situated employees.
“[I]ndividuals are similarly situated when they have similar jobs and display similar
conduct.” Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir. 2003).
Although Lewis need not show that other employees were identical to him, he must
show that they were “similar in material respects,” which he has made no attempt to
do. Earl v. Nielsen Media Research, Inc., 658 F.3d 1108, 1114 (9th Cir. 2011).
Nor does he provide any evidence or argument that others were treated more
favorably. Ameron, on the other hand, provided evidence that it investigated and
terminated other employees for violating its Harassment Policy, House Rules and
Work Place Violence Policy, including Kelii, just as it did with Lewis, and did so in
the same general time frame as the conduct complained of by Lewis. Accordingly,
Lewis has failed to establish, or even attempt to establish, a prima facie case of
discrimination, and Ameron is entitled to summary judgment.
Hostile Work Environment
Under Title VII, hostile work environment claims must be filed within
300 days of the allegedly hostile conduct. 42 U.S.C. § 2000e-5(e)(1); EEOC v.
Global Horizons, Inc., 860 F. Supp. 2d 1172, 1193-94 (D. Haw. 2012). Here, many
of the incidents alleged by Lewis as hostile occurred in 2008. For example, Lewis
claims someone urinated in his hard hat “before the Bernard Kelii incident,” which
occurred in August 2008.1 Ex. B at 136, 173. Lewis also alleges racial slurs were
written on his truck in approximately December 2008, but does not know whether
that occurred at Ameron or elsewhere. Ex. B at 204-06. Ameron notes that the
EEOC received Lewis’ complaint on June 21, 2011. See Ex. N; Sanchez v. Pac.
At his deposition, however, Lewis stated that the hard hat incident likely arose because of
“jealous” co-workers and that it was not racially motivated. Ex. A at 43.
Powder Co., 147 F.3d 1097, 1099 (9th Cir. 1988) (citing 29 C.F.R. § 1626.7)
(“Charges are ‘filed’ when ‘received.’”).
Ameron argues that Lewis fails to demonstrate that at least one
non-discrete act of harassment occurred on or after August 25, 2010 (300 days prior
to June 21, 2011). Lewis does not address Ameron’s arguments regarding his
failure to file these claims with the administrative agency within 180 days (for state
law claims) or 300 days (for federal claims) after the last alleged act of harassment
occurred, entitling Ameron to summary judgment for this reason alone.
Even if these claims were timely, however, they fail to establish a
hostile work environment. To establish a prima facie case of a hostile work
environment under Title VII, Lewis must show that: (1) he was subjected to verbal
or physical conduct of a discriminatory nature; (2) the conduct was unwelcome; and
(3) the conduct was sufficiently severe or pervasive to alter the terms and conditions
of his employment and create an abusive work environment. Vasquez v. County of
Los Angeles, 349 F.3d 634, 642 (9th Cir. 2003); Galdamez v. Potter, 415 F.3d 1015,
1023 (9th Cir. 2005). In considering whether the discriminatory conduct was
“severe or pervasive,” the Court looks to “all the circumstances, including the
frequency of the discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.’” Kortan v. Cal.
Youth Auth., 217 F.3d 1104, 1110 (9th Cir. 2000) (quoting Faragher v. City of Boca
Raton, 524 U.S. 775, 787-88 (1998)). Where the alleged harasser is a co-worker,
rather than a supervisor, a plaintiff must also show that “the employer knew or
should have known of the harassment but did not take adequate steps to address it.”
Swinton v. Potomac Corp., 270 F.3d 794, 803 (9th Cir. 2001). In opposition to the
motion, Lewis makes no attempt to support a hostile work environment claim.
Lewis acknowledges that the work environment at the Ameron quarry
commonly included crude and offensive language, name calling and horseplay -- he
acknowledges regularly participating in such conduct himself. Ex. B at 155-67.
While certainly demeaning, the isolated racial remarks he complains of were not so
severe or pervasive to alter his working conditions. Ameron made sure of that by
terminating the first of Lewis’ alleged harassers in September 2008. Moreover, the
evidence shows that Lewis kept working for Ameron for years with little apparent
effect, receiving a promotion to Foreman in same time frame that the alleged
harassment occurred. Further, Lewis candidly admits that the writing on his truck
may not have occurred in the workplace, and that the hard hat incident was probably
not motivated by discrimination. The Court therefore cannot attribute such abuse,
even considering the evidence in the light most favorable to Lewis, to discriminatory
or harassing conduct within the Ameron work environment. See, e.g., Vasquez v.
Cnty. of L.A., 307 F.3d 884, 893 (9th Cir. 2002) (finding no hostile work
environment where employee was told that he had “a typical Hispanic macho
attitude,” that he should work in the field because “Hispanics do good in the field”
and where he was yelled at in front of others); Sanchez v. City of Santa Ana, 936
F.2d 1027, 1031, 1036 (9th Cir. 1990) (determining no hostile work environment
where employer posted a racially offensive cartoon, made racially offensive slurs,
targeted Latinos when enforcing rules, provided unsafe vehicles to Latinos, and kept
illegal personnel files on Latino employees).
Additionally, even if Lewis was able to identify sufficiently severe,
discriminatory conduct that occurred at Ameron, “where harassment by a co-worker
[as opposed to a supervisor or manager] is alleged, the employer can be held liable
only where its own negligence is a cause of the harassment.” Swenson v. Potter,
271 F.3d 1184, 1191 (9th Cir. 2001) (citing Burlington Indus., Inc. v. Ellerth, 524
U.S. 742, 759 (1998)). “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.” Swenson, 271 F.3d at 1191-92; see also Vance v. Ball State Univ., 133
S.Ct. 2434, 2441 (2013) (“[W]e have held that an employer is directly liable for an
employee’s unlawful harassment if the employer was negligent with respect to the
Here, Lewis provides no evidence of such negligence by Ameron.
There is no dispute that Ameron promptly investigated, suspended and terminated
Kelii following his inappropriate comments about Lewis. Lewis acknowledges that
he never reported Yamamoto’s alleged inappropriate comments to human resources
(Ex. B. at 191) and, in any event, he further acknowledges that he did not want
Ameron to take any action because he wanted to talk to Yamamoto himself to clear
the air: “I was gonna talk to [Yamamoto] just to squash it and put it behind us
because I didn’t want to make any waves . . . I didn’t want no grievances and all this
kind of stuff, I just wanted to squash it man to man.” Ex. C. at 282. There is, in
other words, no evidence of any negligence by Ameron having caused Yamamoto’s
alleged harassment. Swenson, 271 F.3d at 1191.
Accordingly, Lewis has failed to establish a prima facie claim of hostile
The Court applies the burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) to Lewis’ retaliation
claims under both Title VII, 42 U.S.C. § 2000e, and Hawaii Revised Statutes
§378-2. Under the McDonnell Douglas burden-shifting framework, a plaintiff
must show that (1) he engaged in a protected activity; (2) the defendant took an
adverse action against him; and (3) there was a causal link between his involvement
in the protected activity and defendant’s adverse personnel action. Freitag v.
Ayers, 468 F.3d 528, 541 (9th Cir. 2006). Once a plaintiff succeeds in presenting a
prima facie case, the burden shifts to the defendant to articulate a “legitimate,
nondiscriminatory reason” for its employment decision. Noyes v. Kelly Servs., 488
F.3d 1163, 1168 (9th Cir. 2007). “Should the defendant carry its burden, the
burden then shifts back to the plaintiff to raise a triable issue of fact that the
defendant’s proffered reason was a pretext for unlawful discrimination.” Id.
A. Prima Facie Case of Retaliation
Ameron argues that Lewis fails to satisfy the third prong of a prima
facie case for retaliation—a causal link between his alleged protected activity in
complaining to his supervisors about racial comments made by co-workers, and his
suspension and termination for harassing Marumoto. Lewis argues that a causal
link exists because his complaints beginning in August 2008 and again in August
2010 relating to Yamamoto’s racial remarks are in close proximity to his suspension
on November 1, 2010, and “close enough to establish a causal link between the
two.” Mem. in Opp. at 14. As discussed below, however, the evidence shows that
those responsible for suspending and terminating Lewis were not aware of any
complaints having been made by him in temporal proximity to their decisions. At
most, Ameron’s decisionmakers were aware only of Lewis’ August 2008
complaints, which suggest no causality with their November 2010 and January 2011
employment actions. See Clark County School Dist. v. Breeden, 532 U.S. 268, 273
(2001). Moreover, “it is causation, and not temporal proximity alone, which is an
element of a plaintiff’s retaliation claim.” Blanchard v. Lahood, 461 Fed. Appx.
542, 544 (9th Cir. 2011) (citing Porter v. California Dep’t of Corr., 419 F.3d 885,
894-95 (9th Cir. 2005)).
Lewis fails to create a question of fact that the decision to terminate him
was made because of his complaints about racial remarks. On the contrary,
Ameron presented evidence that its decisionmakers, Mori-Mishina and West, were
not aware that Lewis made any complaints in August 2010 about racial remarks by
Yamamoto. See Mori-Mishina Decl. ¶ 15; West Decl. ¶¶ 9, 12; Cohen v. Fred
Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982) (causation element requires evidence
that “employer was aware that the plaintiff had engaged in the protected activity”).
Although West and Mori-Mishina were aware of the racial remarks made by Kelii in
2008 because of the findings of the investigator’s report that led to Kelii’s
termination, those remarks and Lewis’ related complaint were remote in time
relative to Lewis’ November 2010 suspension and January 2011 termination for
purposes of showing temporal proximity. See Clark County School Dist. v.
Breeden, 532 U.S. 268, 273-74 (2001) (noting that those cases that accept mere
temporal proximity as sufficient evidence of causality to establish a prima facie case
uniformly hold that temporal proximity must be “very close”); Manatt v. Bank of
Am., 339 F.3d 792, 802 (9th Cir. 2003) (refusing to draw an inference of causation
when there was a nine-month period between the employer’s knowledge of
protected activity and an adverse employment action); Tatum v. Schwartz, 405 Fed.
Appx. 169, 171 (9th Cir. 2010) (“Temporal proximity of one year--measured from
the date of [plaintiff’s] complaint until the date of her work assignment--is
insufficient to establish an inference of retaliation without additional evidence.”).
Temporal proximity is also not the sole measuring stick. Ameron
characterizes the complaint by Marumoto and subsequent investigation as an
intervening, legitimate reason for terminating Lewis, which interrupts any chain of
causation. Reply at 5 (citing Kuhn v. Washtenaw Cnty., 709 F.3d 612, 628 (6th Cir.
2013) (noting that “an intervening legitimate reason to take an adverse employment
action dispels an inference of retaliation based on temporal proximity”)).
According to Ameron, its decision to terminate Lewis was based on the third party
investigator’s finding of Lewis’ “deliberate harassment of Mr. Marumoto combined
with Mr. Lewis’ dishonesty during the investigation.” Mori-Mishina Decl. ¶ 11.
The Court agrees. Even if temporal proximity existed between Lewis’
harassment complaints and his suspension and termination, Lewis appears not to
recognize the significance of the investigator’s January 5, 2011 findings made
immediately prior to his termination. The sequence of events, if anything, suggests
that Ameron acted in response to the investigation, not in response to Lewis’
complaints. Were it otherwise, an employee could effectively foreclose adverse
action by an employer simply by making a harassment complaint prior to the
issuance of an anticipated, unflattering conduct report. That is obviously not the
intent of retaliation law, and this Court declines to endorse an approach that suggests
Ameron’s Legitimate, Non-Discriminatory Reasons For
Even assuming that Lewis could establish a prima facie case of
retaliation, Ameron set forth a legitimate, non-retaliatory reason for terminating his
employment. If an employer provides a legitimate explanation for the challenged
decision, the burden shifts back to the plaintiff to show that the employer’s
explanation is merely a pretext for impermissible discrimination or retaliation. Ray
v. Henderson, 217 F.3d 1234, 1240 (9th Cir. 2000). The plaintiff needs to do more
than merely deny the credibility of the defendant’s proffered reasons. See Schuler
v. Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th Cir. 1986). To survive summary
judgment, the plaintiff must offer either direct or specific and substantial
circumstantial evidence of retaliatory motive. Stegall v. Citadel Broad. Co., 350
F.3d 1061, 1066 (9th Cir. 2003). Lewis fails to do so here.
The evidence shows that when Marumoto complained to Ameron
that Lewis harassed him on three occasions, Ameron suspended Lewis and initiated
an independent investigation. Mori-Mishina Decl. ¶ 6-7; Ex. I. In her January
2011 report, Ichinose, the independent investigator, found that Lewis deliberately
harassed Marumoto and lied regarding those incidents. See Ex. J at 18; Ex. K.
Ameron thereafter terminated Lewis for violating its House Rules and Workplace
Violence policy. Mori-Mishina Decl. ¶¶ 10-11; West Decl. ¶ 11; Ex. K.
In an attempt to establish pretext, Lewis asserts that Ichinose had been a
hired investigator for Ameron on many occasions and “earned a significant amount
of income working for Ameron.” Mem. in Opp. at 15. Even if true, Lewis
provides no evidence of bias or any other reason to discount the findings in
Ichinose’s report. There is no evidence, for instance, of the content of Ichinose’s
findings from other cases. Nor does Lewis so much as suggest why Ichinose might
be biased against him and in favor of a co-employee (Marumoto), neither of whom
she presumably knew. This was not an investigation pitting Lewis against Ameron.
Nor does Lewis’ unfounded contention call into question the veracity of Ameron’s
rationale for terminating him or establish that its reasons were pretextual. See
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th Cir. 2002) (noting that
it does not matter if the proffered justification for an employment action was
“foolish or trivial or even baseless”); Green v. Maricopa County Cmty. College Sch.
Dist., 265 F. Supp. 2d 1110, 1128 (D. Ariz. 2003) (“The focus of a pretext inquiry is
whether the employer’s stated reason was honest, not whether it was accurate, wise,
or well-considered.”); see also Bradley v. Harcourt, Brace & Co., 104 F.3d 267, 270
(9th Cir. 1996) (plaintiff’s “subjective personal judgments . . . do not raise a genuine
issue of material fact”).
Lewis also argues that because the arbitrator reinstated him to his
previous position, “Ameron’s stated reasons for suspending plaintiff are pretextual.”
Mem. in Opp. at 15-16. Lewis misperceives both the arbitrator’s ruling and
Ameron’s actions. The arbitrator evaluated whether Ameron had “just cause” for
Lewis’ termination, not whether Ameron’s proffered reason was pretextual.
Indeed, the arbitrator agreed with the factual findings in Ichinose’s report, but found
termination to be too harsh a sanction. See Ex. 10 at 28, 30.2 Accordingly,
because Lewis has offered no direct or specific and substantial circumstantial
evidence of pretext, Ameron is entitled to summary judgment on Lewis’ retaliation
On the basis of the foregoing, the Court GRANTS Defendant
Ameron’s Motion for Summary Judgment.
IT IS SO ORDERED.
DATED: July 1, 2014, at Honolulu, Hawai’i.
Lonzo Lewis, III, v. Ameron International and Alika Mancini;
Civil No. 12-00453 DKW-RLP; ORDER GRANTING DEFENDANT AMERON
INTERNATIONAL CORPORATION’S MOTION FOR SUMMARY
Lewis’ additional pretextual claim -- that the facts underlying Marumoto’s complaint were not
reliable because Marumoto held an historic grudge against him -- fails for the same reason. Even
the arbitrator who reinstated Lewis did not quarrel with the facts on which Marumoto’s complaint
was based. See Ex. 10 at 16-20, 28.
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