Souza v. Silva et al
Filing
79
ORDER Granting 57 Defendant's Motion for Summary Judgment. Signed by JUDGE HELEN GILLMOR on 5/30/14. (gab, )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
JOSEPH N. SOUZA,
)
)
Plaintiff,
)
)
vs.
)
)
KENNETH SILVA; CITY AND COUNTY )
OF HONOLULU; HONOLULU FIRE
)
DEPARTMENT; JOHN DOES 1-10;
)
DOE PARTNERSHIPS 1-5; DOE
)
CORPORATIONS 1-5; DOE
)
GOVERNMENTAL ENTITIES 1-5,
)
)
Defendants.
)
)
______________________________ )
CIVIL NO. 12-00462 HG-BMK
ORDER GRANTING DEFENDANTS’ AMENDED MOTION FOR SUMMARY JUDGMENT
(ECF No. 57)
Plaintiff Joseph N. Souza alleges in the complaint that
his former employer, Defendants Honolulu Fire Department and
the City and County of Honolulu, discriminated against him on
the basis of his disability in violation of the Americans with
Disabilities Act, the Rehabilitation Act, and Hawaii state
statutes.
Plaintiff also alleges he was retaliated against
for filing a worker’s compensation claim.
Plaintiff also
seeks relief for intentional infliction of emotional distress.
Defendants Honolulu Fire Department and the City and
County of Honolulu seek summary judgment on all of Plaintiff’s
1
claims.
Defendant Kenneth Silva, sued in his official
capacity as Fire Chief for the Honolulu Fire Department, moves
for summary judgment on the basis that claims against him are
duplicative of the claims against the Defendants Honolulu Fire
Department and the City and County of Honolulu.
Plaintiff
Souza agrees summary judgment is appropriate in favor of
Defendant Silva.
Discovery was reopened to allow Plaintiff Souza the
opportunity to conduct an additional deposition.
Plaintiff’s
motion to continue the hearing on Defendants’ Amended Motion
for Summary Judgment was granted.
An extended briefing
schedule was entered into to permit Defendants the chance to
amend their Motion and to allow Plaintiff Souza more time to
file his Opposition.
Defendants’ Amended Motion for Summary Judgment (ECF No.
57) is GRANTED.
PROCEDURAL HISTORY
On July 23, 2012, Plaintiff Joseph N. Souza filed a
Complaint in the Circuit Court of the First Circuit, State of
Hawaii.
(ECF No. 1-2).
On August 13, 2012, Defendants Kenneth Silva, in his
2
capacity as Fire Chief of the Honolulu Fire Department, the
City and County of Honolulu, and the Honolulu Fire Department
removed the state court action to the United States District
Court, District of Hawaii.
(ECF No. 1).
On January 18, 2013, Plaintiff Souza filed a Motion to
Amend the Complaint.
(ECF No. 14).
On January 28, 2013, Defendants Silva, the City and
County of Honolulu, and the Honolulu Fire Department filed a
Statement of No Position as to Plaintiff’s Motion to Amend the
Complaint.
(ECF No. 16).
On January 29, 2013, Plaintiff Souza’s Motion to Amend
the Complaint was granted.
(ECF No. 17).
On February 5, 2013, Plaintiff Souza filed his First
Amended Complaint.
(ECF No. 18).
On August 3, 2013, Defendants Silva, Honolulu Fire
Department, and the City and County of Honolulu filed a Motion
for Summary Judgment and a separate Concise Statement of Facts
in support.
(ECF Nos. 32, 33).
On August 13, 2013, the Parties submitted a Stipulation
to Allow Amendment to Defendants’ Separate and Concise
Statement of Facts and to Continue the Hearing on the Motion.
(ECF No. 38).
On August 14, 2013, Plaintiff Souza filed a MOTION TO
3
CONTINUE HEARING ON MOTION FOR SUMMARY JUDGMENT AND TO PERMIT
AN EXTENSION OF TIME TO SECURE DISCOVERY TO OPPOSE DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT.
(ECF No. 36).
On September 5, 2013, the Court held a Status Conference.
(ECF No. 44).
The Court issued a Minute Order striking
Defendants’ Motion for Summary Judgment (ECF No. 32) and the
Concise Statement of Facts (ECF No. 33) without prejudice.
Defendants were instructed to comply with Local Rule 7 upon
the filing of a Motion.
(Id.)
On November 13, 2013, Defendants filed DEFENDANTS
HONOLULU FIRE DEPARTMENT AND KENNETH SILVA’S MOTION FOR
SUMMARY JUDGMENT AS TO ALL COUNTS IN PLAINTIFF JOSEPH N.
SOUZA’S FIRST AMENDED COMPLAINT.
(ECF No. 53).
Defendants
also filed a Concise Statement in Support of the Motion for
Summary Judgment.
(ECF No. 52).
On November 15, 2013, Plaintiff filed a Motion to Reopen
Discovery.
(ECF No. 54).
On November 20, 2013, the Court issued a Minute Order
striking Defendants’ Motion for Summary Judgment (ECF No. 53)
and the Concise Statement of Facts (ECF No. 52).
55).
(ECF No.
Defendants were given leave to file a new Motion for
Summary Judgment and Concise Statement of Facts in conformity
with Local Rule 56.1 by December 2, 2013.
4
(Id.)
On December 2, 2013, Defendants filed DEFENDANTS HONOLULU
FIRE DEPARTMENT AND KENNETH SILVA’S AMENDED MOTION FOR SUMMARY
JUDGMENT AS TO ALL COUNTS IN PLAINTIFF JOSEPH N. SOUZA’S FIRST
AMENDED COMPLAINT.
(ECF No. 57).
Defendants also filed a
Concise Statement of Facts in Support of the Amended Motion
for Summary Judgment.
(ECF No. 58).
On December 3, 2013, the Court issued a Briefing Schedule
for Defendants’ Amended Motion for Summary Judgment.
(ECF No.
59).
On December 10, 2013, Plaintiff Souza filed a Motion to
Reschedule the Hearing on Defendants’ Amended Motion for
Summary Judgment.
(ECF No. 62).
Plaintiff requested
additional time to file his Opposition based on his Motion to
Reopen Discovery.
On December 12, 2013, the Court granted Plaintiff’s
Motion to Reschedule the Hearing on Defendants’ Amended Motion
for Summary Judgment.
(ECF No. 63).
On January 27, 2014, the Court held a Status Conference.
(ECF No. 69).
At the status conference, the Parties requested
a new briefing schedule for Defendants’ Amended Motion for
Summary Judgment following the extended discovery deadline of
February 6, 2014.
The Court instructed Defendants to file a
Notice with the Court by February 27, 2014, as to whether
5
there were any changes to its Amended Motion for Summary
Judgment (ECF No. 57) after discovery was completed.
69).
(ECF No.
The Court set the remaining briefing schedule for
Defendants’ Amended Motion for Summary Judgment.
(Id.)
On February 27, 2014, Defendants filed a Notice that
there were no changes to its Amended Motion for Summary
Judgment.
(ECF No. 72).
On March 11, 2014, Plaintiff Souza filed an Opposition to
the Amended Motion for Summary Judgment.
(ECF No. 73).
Plaintiff also filed a separate Concise Statement of Facts in
response to Defendants’ Concise Statement of Facts.
(ECF No.
74).
On March 21, 2014, Defendants filed a Reply.
(ECF No.
75).
On March 27, 2014, the Court held a hearing on
Defendants’ Amended Motion for Summary Judgment.
(ECF No.
76).
FACTUAL BACKGROUND
Defendants’ Provisions Regarding a Medical Leave of Absence
According to the Defendant Honolulu Fire Department’s
Policy and Procedures Manual, employees are required to
provide a Physician’s Certificate if they are absent from work
6
for an extended period of time due to injury or illness.
(Def.’s Concise Statement of Facts (“CSF”)at ¶ 1, ECF No. 58;
Def.’s Ex. A, Honolulu Fire Department Policy and Procedures
Manual, ECF No. 58-10).
An employee of the Honolulu Fire Department (“HFD”) is
also an employee of the City and County of Honolulu (“City and
County”).
Section 8-9 of the City and County’s Civil Service
Rules requires an employee, who is absent from duty without
proper authorization, be placed on unauthorized leave of
absence without pay (“LWOP”) status.
(Def.’s Ex. D, City and
County’s Civil Service Rules, ECF No. 58-13).
A City and County employee who is out of work pursuant to
a worker’s compensation claim is required to report his injury
status to his supervisor on a regular basis.
(Personnel
Manual, Department of Human Resources, City and County of
Honolulu, Def.’s Ex. C, ECF No. 58-12).
Defendants’ Provisions Regarding Termination for Failure to
Report
Section 11-4 of the Civil Service Rules allows a City
Department to “terminate or consider...to have resigned” any
employee who does not report to work for fifteen days without
notifying the appropriate authority of the employee’s
employment intentions or who “fails to return to work within
7
fifteen calendar days following the expiration of an approved
leave of absence.”
(Def.’s CSF at ¶ 4, ECF No. 58; Def.’s Ex.
D, City and County’s Civil Service Rules, ECF No. 58-13).
The Personnel Manual also states that failure of an
employee to keep his City and County operating department
informed of his injury status could result in dismissal for
job abandonment.
(Def.’s CSF at ¶ 2, ECF No. 58; Def.’s Ex.
C, City and County’s Personnel Manual, ECF No. 58-12).
Plaintiff’s Injury in February 2010
On July 3, 1995, Plaintiff Joseph N. Souza (“Plaintiff
Souza”) was hired as a full-time Fire Fighter recruit by
Defendants HFD and City and County.
(First Amended Complaint
at ¶¶ 5-6, ECF No. 18).
Beginning in 2009, Plaintiff Souza served as a Fire
Fighter 2, Chief’s Driver-Aide.
(Id. at ¶¶ 8-9).
On February 22, 2010, Plaintiff attended a mandatory
meeting conducted by HFD Fire Chief, Defendant Kenneth Silva
(“Defendant Silva”).
(First Amended Complaint at ¶¶ 15, 16).
Defendant Silva is alleged to have made misrepresentations to
the fire fighters about Plaintiff Souza.
(Id. at ¶¶ 14-16).
According to the complaint, a few days after the meeting,
the Hawaii Fire Fighters Association sent an email to its
8
membership making the same misrepresentations.
(Id. at ¶ 18).
Plaintiff Souza claims he received numerous threats and
harassing phone calls at work, at home, and on his cell phone
from fire fighters following the meeting and the email.
at ¶ 19).
(Id.
Plaintiff Souza claims he suffered a mental injury
as a result and was diagnosed with an acute stress and
adjustment disorder.
(Declaration of Joseph N. Souza (“Souza
Decl.”) at ¶¶ 12-14, ECF No. 74-1).
On March 4, 2010, Plaintiff Souza states he began crying
at work due to his mental injury.
(Id. at ¶ 13).
On the same
date, Plaintiff Souza began taking sick leave from work.
(Id.; Declaration of Dean Matsukawa (“Matsukawa Decl.”) at ¶
12, ECF No. 58-6).
Plaintiff Souza did not return to work at
the fire department.
(Pla.’s CSF at ¶ 14, ECF No. 74).
Events Between Plaintiff’s Injury and His Termination in
October 2011
On March 26, 2010, Plaintiff Souza informed Defendants
that he suffered an injury of “mental stress” when he filed
his Worker’s Compensation Claim.
(Pla.’s Ex. 4, City and
County of Honolulu Report of Industrial Injury or Illness, ECF
No. 74-7; Matsukawa Decl. at ¶ 13, ECF No. 58-6).
On April 23, 2010, Plaintiff’s claim for Worker’s
Compensation was deferred to the Hawaii State Department of
9
Labor and Industrial Relations, Disability Compensation
Division (“Disability Compensation Division”).
(Pla.’s Ex. 5,
ECF No. 74-8).
In September and October 2010, Defendants called
Plaintiff Souza to request medical certificates to validate
his absence from work while his Worker’s Compensation Claim
was pending.
(Declaration of Frank Johnson (“Johnson Decl.”)
at ¶¶ 7, 9-20 ECF No. 58-5; Declaration of Kenison Tejada
(“Tejada Decl.”) at ¶¶ 9-46, ECF No. 58-7; Def.’s Ex. B,
Telephone Conversation Recording, ECF No. 61).
During the nine month period between March 2010 and
November 2010, Plaintiff Souza provided Defendants with four,
brief medical certificates from his treating psychologist, Dr.
Mary C. Horn, to verify his absence from work.
(Def.’s Exs.
P, Q, R, S, medical certificates from Dr. Mary Horn, ECF No.
58).
The medical certificate dated June 16, 2010, stated:
This is a letter to confirm that Joseph Souza has
been under my care for psychological services since
03/05/10, due to extreme stress from work that began
on 2/22/10. He continues to come in regularly and
is progressing slowly.
(Def.’s Ex. P, medical certificate from Dr. Mary Horn, ECF No.
58-20).
The following three medical certificates were equally
brief and expressed the same information.
(Def.’s Exs. Q, R,
S, medical certificates from Dr. Mary Horn, ECF No. 58).
10
In November 2010, Defendants notified Plaintiff Souza in
writing that the medical certificates that he provided were
too infrequent to verify his absence from work.
(Def.’s Ex.
G, November 16, 2010 Letter from Defendant Silva to Plaintiff
Souza, ECF No. 58-15).
On December 7, 2010, the State of Hawaii’s Disability
Compensation Division issued its decision on Plaintiff Souza’s
Worker’s Compensation Claim.
(Def.’s Ex. V, Disability
Compensation Division Decision dated December 7, 2010, ECF No.
58-26).
The Disability Compensation Division found that
Plaintiff Souza was entitled to receive compensation for
medical care and services related to his acute stress and
adjustment disorder.
(Id.)
The Disability Compensation Division did not decide
whether Plaintiff Souza was eligible to receive benefits for
either a temporary total disability, a permanent disability,
or disfigurement.
(Id.)
The Disability Compensation Division
found the issues could not be resolved because of an
incomplete record.
(Id.)
The Disability Compensation
Division explained that there was new evidence that Plaintiff
Souza was employed at a ukulele factory that was not
previously raised by the parties.
(Id.)
Due to the
undeveloped record as to Plaintiff Souza’s ability to work,
11
the Disability Compensation Division held in abeyance its
decision with respect to his entitlement to receive benefits
for a temporary total disability, a permanent disability, or
disfigurement.
(Id.)
Defendants HFD and City and County appealed the
Disability Compensation Division’s order and no decision on
the appeal has been issued.
(Inouye Decl. at p. 2, ECF No.
58-8; Ex. 11 of Pla.’s Opposition, ECF No. 74-14).
The issue
of whether Plaintiff Souza is entitled to temporary total
disability, permanent disability, or disfigurement benefits
remains held in abeyance by the Disability Compensation
Division.
Following the Disability Compensation Division’s December
2010 decision, Defendants notified Plaintiff Souza in January
2011 that he had not provided sufficiently regular medical
certificates to verify his continued absence from work.
(Def.’s Ex. H, January 24, 2011 Letter to Plaintiff Souza, ECF
No. 58-16).
In response, on February 18, 2011, Plaintiff provided
Defendants with another medical certificate from Dr. Mary
Horn.
(Def.’s Ex. T, medical certificate dated February 11,
2011, ECF No. 58-24).
The certificate stated that Dr. Horn
was treating Plaintiff Souza for psychological services and
12
that his treatment was expected to continue indefinitely.
(Id.)
For the five month period between March 2011 and July
2011, Plaintiff did not provide Defendants with any medical
certificates to verify his absence.
In August 2011, Plaintiff Souza gave notice to Defendants
of his injury status when he filed a medical certificate from
Dr. Horn as part of a motion he filed before the Disability
Compensation Division.
(Pla.’s Ex. 16 at p. 15, medical
certificate dated August 9, 2011, ECF No. 74-19).
The August
2011 medical certificate stated that Plaintiff Souza continued
to receive treatment for a psychiatric disability.
(Id.)
On September 1, 2011, and October 5, 2011, Defendants
informed Plaintiff Souza in writing that he had failed to
comply with their requests for regular medical certificates
verifying his absence from work.
(Def.’s Exs. I, J,
Defendants’ September 1, 2011 and October 5, 2011 Letters to
Plaintiff, ECF No. 58).
The September 2011 and October 2011
letters notified Plaintiff Souza that he was in violation of
the City and County’s Civil Service Rules.
(Id.)
Defendants
also notified Plaintiff that his continued absence may be
construed as job abandonment pursuant to the Civil Service
Rules.
(Id.)
13
On October 15, 2011, nineteen months after Plaintiff
Souza last reported for work, Plaintiff was terminated on the
basis that he had abandoned his job.
(Matsukawa Decl. at ¶
53, ECF No. 58-6).
Events Following Plaintiff’s Termination in October 2011
Following his termination, Plaintiff Souza sent another
medical certificate from Dr. Horn to Defendants.
(Def.’s Ex.
U, medical certificate dated October 26, 2011, ECF No. 58-25).
On November 3, 2011, Plaintiff Souza filed a grievance
with Defendant HFD over his termination, which was denied.
(Souza Decl. at ¶ 44, ECF No. 74-1).
The Honolulu Fire
Fighters Association declined to arbitrate on Plaintiff’s
behalf.
(Declaration of Aaron Lenchanko (“Lenchanko Decl.”)
at ¶¶ 8, 11, ECF No. 58-4; Def.’s Ex. F, Letter from Lenchanko
to Plaintiff Souza, ECF No. 58-14).
According to the complaint, on November 23, 2011,
Plaintiff filed a Charge of Discrimination with the Hawaii
Civil Rights Commission (“HCRC”), HCRC No. 16342.
Amended Complaint at ¶ 26, ECF No. 18).
(First
Plaintiff also filed
a Charge of Discrimination with the Equal Employment
Opportunity Commission (“EEOC”), EEOC No. 486-2012-00042.
(Defendant’s Ex. Z, EEOC Letter, dated April 3, 2012, ECF No.
14
58-27).
On or about April 25, 2012, according to the complaint,
the EEOC issued a Notice of Right to Sue.
(Id. ¶ 31).
Plaintiff states in the First Amended Complaint that on
May 19, 2012, the HCRC issued a Right to Sue Letter.
(Id.)
On July 23, 2012, Plaintiff filed a Complaint in Hawaii
state court.
(Ex. A, attached to Defendants’ Notice of
Removal, ECF No. 1-2).
Defendants removed the case to the
United States District Court, District of Hawaii, on August
13, 2012.
Plaintiff filed a First Amended Complaint.
In his Opposition to the Motion for Summary Judgment,
Plaintiff Souza conceded that all claims against Defendant
Silva should be treated as claims against the City and County
of Honolulu.
(Opposition at pp. 8-9, ECF NO. 73.)
Plaintiff
agrees to summary judgment in favor of Defendant Kenneth
Silva.
Plaintiff Souza alleges the following claims against the
remaining Defendants Honolulu Fire Department and City and
County of Honolulu (hereinafter “Defendants”): (Count I)
Disability Discrimination, (Count II) Retaliation for Filing a
Worker’s Compensation Claim, and (Count III) Intentional
Infliction of Emotional Distress.
STANDARD OF REVIEW
15
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. 1997).
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 law.
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.
16
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 non-moving party.
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
17
denials.
Fed. R. Civ. P. 56(e); Gasaway v. Northwestern Mut.
Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994).
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).
ANALYSIS
I.
Count One - Disability Discrimination
Defendants seek summary judgment on Count One, arguing
that Plaintiff cannot establish a prima facie case pursuant to
the Americans with Disabilities Act (“ADA”), the
Rehabilitation Act, and Section 378-2 of the Hawaii Revised
Statutes (“HRS”).
Title I of the ADA, 42 U.S.C. § 12112(a), prohibits an
employer from discriminating “against a qualified individual
with a disability because of the disability of such individual
in regard to job application procedures, the hiring,
advancement, or discharge of employees.”
The court applies
the burden-shifting analysis derived from McDonnell Douglas
Corp v. Green, 411 U.S. 792 (1973) to claims of discrimination
18
on account of a disability.
Raytheon Co. v. Hernandez, 540
U.S. 44, 49-50 (2003).
The same ADA analysis is applied to claims brought
pursuant to the Rehabilitation Act.
Boose v. Tri-County
Metro. Transp. Dist. Of Oregon, 587 F.3d 997, 1001 n.5 (9th
Cir. 2009) (quoting Zukle v. Regents of Univ. of Cal., 166
F.3d 1041, 1045 n.11 (9th Cir. 1999); see Douglas v.
California Dep’t of Youth Auth., 285 F.3d 1226, 1229 n.3 (9th
Cir. 2002).
Claims pursuant to HRS § 378-2 are also considered under
the same ADA framework.
Beaulieu v. Northrop Grumman Corp.,
Civ. Nos. 99-537ACK, 99-538ACK, 161 F.Supp.2d 1135, 1142 (D.
Haw. 2000); Vanhorn v. Hana Group, Inc., Civ No. 12-215JMSKSC, 2013 WL 5719487 at *5 (D. Haw. Oct. 18, 2013).
Under the burden-shifting analysis, Plaintiff must first
establish a prima facie disability discrimination claim.
Raytheon Co., 540 U.S. at 49 n.3.
Plaintiff must put forth
evidence that:
(1)
he is “disabled” within the meaning of the statute;
(2)
he is a “qualified individual,” meaning he is able
to perform the essential functions of his job,
either with or without reasonable accommodations;
and
19
(3)
he suffered an adverse employment action “because
of” his disability.
Hutton v. Elf Atochem North Am., Inc., 273 F.3d 884, 891 (9th
Cir. 2001).
Plaintiff Souza cannot establish the second prong of the
McDonnell Douglas analysis.
1.
Plaintiff Established a Prima Facie Case that He
Was Disabled
The ADA defines disability with respect to an individual
as “(A) a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual; (B) a record of such impairment; or (C) being
regarding as having such an impairment.”
42 U.S.C. §
12102(1).
Viewing the evidence in a light most favorable to
Plaintiff, Plaintiff can establish the first prong of the
McDonnell Douglas test that he had a disability following the
fire fighters’ meeting on February 22, 2010.
In 2008, Congress adopted the ADA Amendments Act,
“reinstating a broad scope of protection to be available under
the ADA” and expressly rejecting the more stringent standards
set forth in Sutton v. United Air Lines, 527 U.S. 471 (1999),
upon which Defendants rely.
Pub. L. No. 110-325, 122 Stat.
20
3553; see Vanhorn, Civ. No. 12-215JMS-KSC, 2013 WL 5719487 at
*6.
“Mental impairment” is defined as as including “[a]ny
mental or psychological disorder such as ... emotional or
mental illness.”
29 C.F.R. § 1620.2(h)(2).
Stress and
depression can be considered mental impairments rendering a
person disabled within the meaning of the ADA.
Snead v.
Metropolitan Property & Cas. Ins. Co., 237 F.3d 1080, 1088
(9th Cir. 2001).
There is evidence that Plaintiff had a mental impairment
for at least some portion of time following the incident on
February 22, 2010.
Defendants received notice in March 2010
that Plaintiff Souza suffered from a mental impairment.
(Pla.’s Ex. 4., Report of Industrial Injury or Illness, ECF
No. 74-7).
Plaintiff Souza filed a Worker’s Compensation
Claim with Defendants claiming he suffered an injury of
“mental stress.”
The Disability Compensation Division issued
a decision on Plaintiff’s Worker’s Compensation Claim in
December 2010, concluding Plaintiff suffered from an acute
stress and adjustment disorder.
(Def.’s Ex. V, ECF No. 58-
26).
At various points, Dr. Mary Horn provided medical
certificates that Plaintiff Souza submitted to Defendants
21
stating that he was under her care for “psychological
services.”
(Def.’s Exs. P, Q, R, S, T, ECF No. 58).
The record, viewed in a light most favorable to Plaintiff
Souza, demonstrates a prima facie case that Plaintiff was
disabled within the meaning of the ADA for some portion of
time following the incident on February 22, 2010.
Even if Plaintiff can establish the first prong of the
McDonnell Douglas analysis, Plaintiff is unable to demonstrate
the second prong of the test.
Plaintiff Souza has not
provided proof that he was a qualified individual able to
perform the essential functions of his position with HFD after
he suffered his injury.
2.
Plaintiff Has Not Put Forth Evidence of a Prima
Facie Case that He Was A “Qualified Individual”
The ADA defines “qualified individual” as an individual
with a disability who, with or without reasonable
accommodation, can perform the essential functions of the
employment position that such individual holds or desires.
42
U.S.C. ¶ 12111(8); Nunes v. Wal-Mart, Stores, Inc., 164 F.3d
1243, 1246 (9th Cir. 1999).
The ADA requires that a plaintiff be able to perform the
essential functions of his job “with or without reasonable
accommodation.”
42 U.S.C. § 12111(8).
22
A.
Plaintiff Has Not Shown He Was Able to
Perform the Essential Functions of His
Position Since March 2010
“An employee who does not come to work cannot perform any
of his job functions, essential or otherwise.”
Samper v.
Providence St. Vincent Medical Center, 675 F.3d 1233, 1239
(9th Cir. 2012) (citing Waggoner v. Olin Corp., 169 F.3d 481,
485 (7th Cir. 1999).
On March 4, 2010, Plaintiff Souza stopped reporting to
work.
From March 4, 2010 until December 23, 2010, Defendants
accommodated Plaintiff Souza by allowing him to take paid sick
leave from work.
(“Matsukawa Decl.” at ¶ 12, 24-29, ECF No.
58-6, Ex. H, ECF No. 58-16).
From December 23, 2010 until January 12, 2011, Defendants
accommodated Plaintiff Souza by allowing him to take paid
vacation leave from work.
(Id.; Pla.’s Ex. 23, Employee
Summary Report, ECF No. 74-26).
From January 12, 2011, until Plaintiff Souza was
terminated on October 15, 2011, Defendants accommodated
Plaintiff Souza by providing him with leave without pay.
(Matsukawa Decl. at ¶¶ 37, 50, ECF No. 58-6; Pla.’s Ex. 23,
ECF No. 74-26).
Following his injury in March 2010, Plaintiff Souza did
23
not return to work.
Plaintiff has presented no evidence he
was able to perform the essential functions of his position
since his injury.
B.
Samper, 675 F.3d 1233, 1239.
Plaintiff Has Not Shown That He Engaged in
the Interactive Process with Defendants to
Determine Reasonable Accommodations to
Allow Him to Perform the Essential
Functions of His Position at HFD
“In general ... it is the responsibility of the
individual to inform the employer that an accommodation is
needed.”
29 C.F.R. § 1630, App. at § 1630.9; Summers v.
Teichert & Son, Inc., 127 F.3d 1150, 1153 (9th Cir. 1997)
(finding that the employer did not fail to accommodate an
employee’s disability when he never requested an
accommodation).
The employer has an obligation to engage in an
interactive process with the employee to identify and
implement appropriate reasonable accommodations for an
employee’s disability.
Humphrey v. Mem’l Hosps. Ass’n, 239
F.3d 1128, 1137 (9th Cir. 2001); see 29 C.F.R. § 1630.2(O)(3)
(explaining that the interactive process “should identify the
precise limitations resulting from the disability and
potential reasonable accommodations that could overcome those
limitations”).
24
The employee also has a duty to engage in the interactive
process.
2003).
Allen v. Pacific Bell, 348 F.3d 1113, 1115 (9th Cir.
“Both sides must communicate directly, exchange
essential information, and neither side can delay or obstruct
the process.”
Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1114-
1115 (9th Cir. 2000), overruled on other grounds, 535 U.S. 391
(2002).
Good faith participating in the process is a
continuing obligation that may not be exhausted by one effort.
Humphrey, 239 F.3d at 1138.
An employer is only liable for failing to provide
reasonable accommodation for an employee’s disability when the
employer bears responsibility for the breakdown in the
interactive process.
Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1089 (9th Cir. 2002) (citing Beck v. Univ. of Wisconsin
Board of Regents, 75 F.3d 1130, 1135 (7th Cir. 1996)).
Defendants attempted to engage in an interactive process
with Plaintiff in order to determine the status of his injury
while they provided him accommodations.
Plaintiff never
requested any reasonable accommodation that would allow him to
perform the essential functions of his position at HFD.
Plaintiff did not provide Defendants with sufficient
information that would have allowed them to continue to
accommodate him.
25
1.
Plaintiff Provided Defendants With
Only Four Medical Certificates to
Verify His Absence Between March 2010
and December 2010 While His Worker’s
Compensation Claim Was Pending
On March 26, 2010, Plaintiff Souza filed a Worker’s
Compensation Claim with Defendants.
74-7).
(Pla.’s Ex. 4, ECF No.
The claim form section titled “Describe injury or
illness” stated only “Mental Stress.”
(Id.)
Plaintiff did
not include any other details about the nature or extent of
his injury.
While Plaintiff’s Worker’s Compensation Claim was
pending, Defendants attempted to engage with Plaintiff Souza
to obtain information about the nature and extent of his
injury.
In September and October of 2010, Plaintiff’s
supervisors called him more than eight times to request
information regarding the status of his injury.
(Johnson
Decl. at ¶¶ 7-8, ECF No. 58-5; Tejada Decl. at ¶¶ 9-46, ECF
No. 58-7).
Plaintiff’s supervisors also asked Plaintiff Souza
when he expected he could return to work at HFD.
(Id.)
On September 8, 2010, Battalion Chief Kenison Tejada
called Plaintiff Souza to request written medical verification
of his condition.
(Tejada Decl. at ¶ 10, ECF No. 58-7).
Two
days later, Battalion Chief Tejada called Plaintiff Souza on
26
his cell phone and on his home phone in an effort to obtain
information about Plaintiff Souza’s status.
(Id. at ¶ 12).
In response to the telephone calls, on September 14,
2010, Plaintiff Souza provided a medical certificate from his
treating psychologist, Dr. Mary Horn.
ECF No. 58-7).
(Tejada Decl. at ¶ 15,
The certificate, dated June 16, 2010, was only
two sentences and stated:
This is a letter to confirm that Joseph Souza has
been under my care for psychological services since
03/05/10, due to extreme stress from work that began
on 2/22/10. He continues to come in regularly and
is progressing slowly.
(Def.’s Ex. P, Letter from Mary C. Horn, Psy.D., dated
June 16, 2010, ECF No. 58-20).
The June 2010 certificate
provided to Defendants in September 2010 was more than three
months old.
It did not identify the precise limitations
resulting from Plaintiff’s “extreme stress.”
Dr. Horn did not
identify any potential reasonable accommodations that could
overcome any of Plaintiff Souza’s limitations.
The
certificate did not provide an expected recovery date.
After receiving the June 2010 document, on September 16,
2010, Battalion Chief Tejada called Plaintiff Souza and
informed him that he needed to provide an updated medical
certificate that verified whether he was able to work.
(Tejada Decl. at ¶ 19).
27
In response, Plaintiff Souza provided another medical
certificate dated September 22, 2010.
58-21).
(Def.’s Ex. Q, ECF No.
The September 22, 2010 certificate again stated that
Plaintiff Souza was receiving psychological services and was
progressing slowly.
The certificate did not explain the
nature of Plaintiff’s treatment and did not provide any
prognosis.
Dr. Horn stated that “ongoing stressors with the
case have prevented him from a full recovery.”
(Id.)
On September 27, 2010, Battalion Chief Tejada called
Plaintiff Souza requesting further information about the
extent of his injuries and whether he could return to work.
(Tejada Decl. at ¶¶ 22-24).
Plaintiff Souza indicated that he
made medical appointments for the first week of October and
promised to obtain the necessary information for Defendants.
(Id.)
Plaintiff Souza did not contact Battalion Chief Tejada
during the first two weeks of October.
(Id. at ¶ 25).
On October 12, 13, 14, 15, and 19 of 2010, Battalion
Chief Tejada called Plaintiff Souza again requesting updated
information about Plaintiff’s injury and information about
when he would be able to return to his position.
(Id. at ¶¶
26-28).
In response to Defendants’ efforts, on October 25, 2010,
Plaintiff Souza submitted another medical certificate from Dr.
28
Horn.
(Def.’s Ex. R, ECF No. 58-22).
The October 25, 2010
certificate did not provide updated information about
Plaintiff’s injury.
The October certificate was nearly
identical to the September 2010 certificate.
The certificate
failed to provide any date upon which Plaintiff Souza was
expected to be able to return to work.
Defendants continued to reach out to Plaintiff by sending
him written requests for information about the status of his
injury.
On November 16, 2010, Defendants sent Plaintiff Souza
a letter to inform him that he had failed to abide by his
supervisor’s instructions to provide current medical
certifications to validate his absence from work.
G, ECF No. 58-15).
(Def.’s Ex.
Defendants informed Plaintiff Souza that
he was being placed under investigation for insubordination.
(Id.)
Plaintiff Souza responded to the letter by providing
another medical certificate prepared by Dr. Horn dated
November 16, 2010.
(Def.’s Ex. S, ECF No. 58-23).
The
November 16, 2010 certificate contained the same language as
the previous certificates and added that Plaintiff Souza’s
“treatment is expected to continue indefinitely.”
(Id.)
On December 7, 2010, the State of Hawaii’s Disability
Compensation Division issued its decision on Plaintiff Souza’s
29
Worker’s Compensation Claim.
(Def.’s Ex. V, ECF No. 58-26).
The Disability Compensation Division found that Plaintiff
Souza was entitled to receive compensation for medical care
for his acute stress and adjustment disorder.
(Id.)
The
Disability Compensation Division found that the record was
undeveloped with respect to Plaintiff Souza’s eligibility to
receive benefits for either a temporary total disability, a
permanent disability, or disfigurement.
(Id.)
The Disability
Compensation Division explained that there was evidence in the
record that Plaintiff Souza had been working at a ukulele
factory since his injury in February 2010.
(Id.)
The facts
related to Plaintiff Souza’s ability to work based on his
employment at the ukulele factory were not sufficiently
developed before the Disability Compensation Division.
The
decision regarding Plaintiff’s eligibility for temporary total
disability, permanent disability, or disfigurement benefits
has been held in abeyance by the Disability Compensation
Division and remains undetermined.
(Id.; Exs. 11, 12 of
Pla.’s Opposition, ECF No. 74-14).
2.
Plaintiff Provided Defendants With
Only Two Medical Certificates to
Verify His Absence for the 10 Month
Period Between the Disability
Compensation Division Decision in
December 2010 and His Termination in
October 2011
30
Following the order issued by the Disability Compensation
Division in December 2010, Plaintiff Souza continued to
disobey his supervisors’ instructions with respect to their
requests for information about his injury status and the date
he could return to work at HFD.
Defendants continued to
request regular medical certificates to validate Plaintiff’s
continued absence from his position at HFD.
A month after the Disability Compensation Division order
was issued in December 2010, Defendants sent a letter to
Plaintiff, dated January 24, 2011, to inform him that he
continued to be deficient in communicating the status of his
injury to them.
(Silva Decl. at ¶ 25, ECF No. 25).
The
letter stated: “You are still required to regularly update
your supervisor of your leave status and provide medical
certifications to validate your continued absence from work.”
(Def.’s Ex. H, ECF No. 58-16).
Defendants also informed
Plaintiff that his failure to comply with the notification
requirements may result in disciplinary action or separation
from his position for job abandonment.
(Id.)
One month later, on February 11, 2011, Fire Captain Frank
Johnson called Plaintiff Souza.
(Def.’s Ex. B, Telephone
Conversation Recording, ECF No. 61; Johnson Decl. at ¶¶ 9-20,
31
ECF No. 58-5).
Fire Captain Johnson told Plaintiff Souza that
HFD would consider him to have abandoned his job if he did not
submit regular medical certificates from his doctor to justify
his absence.
(Id.)
Plaintiff Souza informed Fire Captain
Johnson that Dr. Horn told him he did not need to provide the
Fire Department with the status of his injury.
(Defendant’s
Ex. B, Telephone Conversation Recording, ECF No. 61; Johnson
Decl. at ¶ 16, ECF No. 58-5).
Plaintiff Souza’s claim of reliance on Dr. Horn’s
interpretation of his legal responsibility is refuted by Dr.
Horn’s own deposition.
58-29).
(Defendant’s Ex. CC at p. 49, ECF No.
Dr. Horn testified that she is not aware of the
requirements of each patient’s employer for communication so
leaves it up to her patients to let her know if they need a
doctor’s letter or note.
(Id.)
Following the conversation with Fire Captain Johnson,
Plaintiff Souza provided Defendants with a medical certificate
dated February 11, 2011.
(Def.’s Ex. T, ECF No. 58-23).
The
February 2011 certificate contained the same vague information
as the November 2011 certificate.
The certificate did not
provide any information about when Plaintiff Souza was
expected to recover or anticipated to return to work.
The
certificate stated that Plaintiff Souza’s treatment with Dr.
32
Horn was expected to continue indefinitely.
For the following five months between March 2011 and July
2011, Plaintiff Souza did not provide Defendants with any
medical certificates to validate his absence from work.
Plaintiff Souza claims that he provided Defendants with
another medical certificate in August 2011 when he filed a
motion with the Disability Compensation Division regarding his
Worker’s Compensation Claim.
Viewing the evidence in a light
most favorable to Plaintiff, Defendants had notice of the
August 2011 medical certificate from Dr. Horn.
The August
2011 certificate indicated that Plaintiff Souza continued to
be under Dr. Horn’s care.
74-19).
(Pla.’s Ex. 16 at p. 15, ECF No.
The certificate stated that Dr. Horn recommended that
Plaintiff Souza “carry out daily tasks” including work at his
ukulele shop as part of his treatment.
(Id.)
The August 2011
certificate did not state that Plaintiff Souza could perform
the essential functions of his position at the HFD.
Dr. Horn
also did not provide an expected date that Plaintiff Souza
could return to work for Defendants.
On September 1, 2011, Defendants wrote Plaintiff Souza to
inform him that he had not provided sufficient medical
certificates to verify his absence for the period between
February 2011 and September 2011.
33
(Def.’s Ex. I, ECF No. 58-
17).
Defendants also notified Plaintiff Souza that an
employee’s failure to return to work within 15 days of a
verified absence could be considered job abandonment pursuant
to the City and County’s Civil Service Rules.
(Id.).
On October 5, 2011, Defendants sent Plaintiff Souza
another letter.
(Def.’s Ex. J, ECF No. 58-18).
The letter
asserted that Plaintiff had continued to disregard their
requests for current medical certificates.
(Id.)
The October
5, 2011 letter informed Plaintiff Souza that he was required
to provide HFD with medical certificates regardless of his
Worker’s Compensation Claim.
(Id.)
The letter also stated:
“As a result of your failure to comply with our directive to
validate your prolonged absence from the HFD, we will proceed
with the necessary actions to process your resignation from
the HFD in accordance with Section 11-4 of the Civil Service
Rules.”
(Id.)
On October 15, 2011, Defendants terminated Plaintiff on
the basis that he had abandoned his position.
(Def.’s CSF at
¶ 30, ECF No. 58).
The evidence demonstrates that Plaintiff’s
communications about the parameters and nature of his injury
offered little information for Defendants to understand the
extent of his disability.
When an employee fails to provide
34
sufficient medical evidence, the employer has no further duty
to engage in the interactive process.
Allen v. Pacific Bell,
348 F.3d 1113, 1114-15 (9th Cir. 2003); Templeton v. Neodata
Services., Inc., 162 F.3d 617, 619 (10th Cir. 1998) (stating
that the employee’s failure to provide medical information
precluded her from claiming that the employer failure to
provide reasonable accommodations).
Plaintiff Souza’s contention that he provided medical
documentation when it was requested by his employer fails to
recognize the context and tone of Defendant HFD’s calls and
letters to him.
In each instance, the communication informed
Plaintiff Souza that he had not complied with the Defendants’
policies.
Plaintiff Souza’s responses to Defendants’ requests
were terse, infrequent, and lacked specificity as to his
medical condition.
Plaintiff Souza provided Defendants with only six, brief
medical certificates to verify his more than 18 month absence
from work.
Defendants repeatedly notified Plaintiff that he
had provided insufficient information to verify his absence
from work.
Defendants notified Plaintiff on multiple
occasions that he was in violation of the City and County’s
Civil Service Rules.
Plaintiff has not provided evidence that
he complied with Defendants’ leave policies.
35
Plaintiff Souza
has not shown that he provided details about the nature and
extent of his injury that would have allowed Defendants to
determine reasonable accommodations for him to perform the
essential functions of his position.
Zivkovic, 302 F.3d at
1089; see Steffes v. Stepan Co., 144 F.3d 1070, 1073 (7th Cir.
1998).
C.
Plaintiff Has Not Shown That He Requested
Any Reasonable Accommodation From
Defendants
The Ninth Circuit Court of Appeals has recognized that an
“[u]npaid medical leave may be a reasonable accommodation
under the ADA.”
Nunes, 164 F.3d at 1247.
A medical leave is
not a reasonable accommodation when it is indefinite.
Dark v.
Curry County, 451 F.3d 1078, 1090 (9th Cir. 2008) (citing
Taylor v. Pepsi-Cola Co., 196 F.3d 1106 (10th Cir. 1999)).
The Ninth Circuit Court of Appeals has found a medical leave
is not a reasonable accommodation when it is for injuries
requiring recovery time of unspecified duration where the
employee cannot state when and under what conditions he could
return to work at all.
Dark, 451 F.3d at 1088.
It is the
plaintiff’s burden to establish that a reasonable
accommodation is possible.
Id.
Plaintiff Souza has not put forth evidence that he
36
requested any reasonable accommodation that would have allowed
him to perform the essential functions of his job.
§ 12111(8).
42 U.S.C.
Defendants accommodated Plaintiff for more than
nineteen months following his injury.
12, 24-29, 37, 50, ECF No. 58-6).
(Matsukawa Decl. at ¶
Plaintiff has not
established that providing him with an indefinite leave of
absence would have been reasonable.
Plaintiff failed to
provide any information as to when he may be expected to
return to work, despite Defendants’ repeated requests for such
information.
Larson v. United Natural Foods W. Inc., 518 Fed.
App’x 589, 591 (9th Cir. 2013) (finding that the employee’s
requested “at least six month long” leave of absence so that
he “might eventually be” able to return to work is not a
reasonable accommodation); Wood v. Green, 323 F.3d 1309, 1314
(11th Cir. 2003) (holding that the employee’s request for an
indefinite leave of absence is unreasonable as a matter of
law).
Plaintiff Souza concedes that he never informed
Defendants of an anticipated date when he could return to
work.
(Def.’s CSF at ¶ 34, ECF No. 58).
Plaintiff Souza has failed to produce evidence that a
reasonable accommodation was even possible.
Zukle v. Regents
of Univ. Of Cal., 1966 F.3d 1041, 1047 (9th Cir. 1999).
Defendants were not provided with any timeline for Plaintiff’s
37
anticipated recovery that Defendants could attempt to
accommodate.
The information that Defendants received from
Dr. Horn indicated that Plaintiff would continue to be treated
for his mental injury indefinitely.
The record contains evidence that Plaintiff Souza never
intended to return to work for Defendants.
Plaintiff told the
EEOC investigator that “it was unlikely that [he] would be
able to return to work in a fire department environment.”
(Def.’s Exhibit Z, EEOC Letter dated April 3, 2012, ECF No.
58-27).
Plaintiff Souza also told the medical doctor who
examined him for his Worker’s Compensation Claim that he “did
not wish to pursue employment with HFD.”
(Pla.’s Ex. 8 at p.
11, ECF No. 74-11).
Plaintiff Souza has failed to put forth evidence of a
prima facie case that he was “a qualified individual with a
disability who, with or without reasonable accommodation, can
perform the essential functions” of his position.
12111(8).
42 U.S.C. §
Plaintiff Souza cannot establish the second prong
of the McDonnell Douglas framework for a disability
discrimination cause of action.
Defendants’ Amended Motion for Summary Judgment as to
Count I is GRANTED.
38
II.
Count Two - Retaliation For Filing a Worker’s
Compensation Claim
Plaintiff alleges that he was wrongfully terminated for
filing a worker’s compensation claim in violation of HRS §
378-32(a)(2).
HRS § 378-32(a)(2) prohibits terminating an
employee on account of a work injury.
The statute provides:
It shall be unlawful for any employer to suspend,
discharge, or discriminate against any of the
employer’s employees ... [s]olely because the
employee has suffered a work injury which arose out
of and in the course of the employee’s employment
with the employer and which is compensable under
chapter 386 unless the employee is no longer capable
of performing the employee’s work as a result of the
work injury and the employer has no other available
work which the employee is capable of performing.
HRS § 378-32(a)(2).
A remedy for wrongful discharge pursuant to HRS § 378-32
is found in HRS § 378-35.
The statute allows for an employee
to have a hearing before the Hawaii Department of Labor and
Industrial Relations to determine the appropriate remedy.
§ 378-35 provides:
If the department of labor and industrial relations
finds, after a hearing, that an employer has
unlawfully suspended, discharged or discriminated
against an employee in violation of section 378-32,
the department may order the reinstatement, or
reinstatement to the prior position, as the case may
be, of the employee with or without backpay and may
order the payment of backpay without any such
reinstatement.
39
HRS
The Hawaii Intermediate Court of Appeals held in Takaki
v. Allied Machinery Corp., 951 P.2d 507, 514 (Haw. App. 1998)
that a claim for wrongful discharge in violation of public
policy may not be based on work-injury related discharges,
citing Parnar v. Americana Hotels, Inc., 652 P.2d 625, 631
(Haw. 1982).
The appeals court held that the exclusive remedy
available for termination for a work-related injury is
provided in HRS § 378-35.
Takaki, 951 P.2d at 514.
The Hawaii Supreme Court has emphasized that “absent a
clear expression of legislative intent to the contrary, ... it
is both unnecessary and unwise to permit a judicially created
cause of action ... to be maintained where the policy sought
to be vindicated is already embodied in a statute providing
its own remedy for its violation.”
Ross v. Stouffer Hotel,
Co., 879 P.2d 1037, 1047 (Haw. 1994).
HRS § 378-35 provides for a hearing before the Hawaii
Department of Labor and Industrial Relations.
Plaintiff
Souza’s worker’s compensation case before the Hawaii
Department of Labor and Industrial Relations remains on appeal
and provides the exclusive remedy for a claim of work-injury
related discharge.
Defendants’ Amended Motion for Summary Judgment as to
40
Count II is GRANTED.
III.
Count Three - Intentional Infliction of Emotional
Distress
Pursuant to the Hawaii Workers’ Compensation Statute at
HRS § 386-5, the workers’ compensation benefits provided to an
employee on account of a work injury “shall exclude all other
liability of the employer to the employee” on account of that
injury.
Yang v. Abercrombie & Fitch Stores, 284 P.3d 946, 950
(Haw. App. 2012).
An exception applies for sexual harassment,
sexual assault, and infliction of emotional distress related
to a sexual assault or sexual harassment.
Id.
The Hawaii Intermediate Court of Appeals explained that
the exclusivity provision in HRS § 386-5 bars suit for all
intentional torts for a plaintiff’s injuries suffered because
of his employment.
Id. at 954.
An intentional tort committed
by a co-employee acting in the course and scope of his or her
employment may be considered an “accident” under Hawaii
Workers’ Compensation statutes if the intentional act was
directed against the employee because of the employee’s
employment.
Id.
Plaintiff claims his termination “constituted the
intentional infliction of emotional distress.”
41
(First Amended
Complaint at ¶ 29, ECF No. 18).
Just as the plaintiff in
Yang, Plaintiff Souza’s intentional tort claim is barred by
the exclusivity provision of HRS § 386-5.
Defendants’ Amended Motion for Summary Judgment as to
Count III is GRANTED.
IV.
Punitive Damages
Municipal defendants are generally immune from liability
for punitive damages.
City of Newport v. Fact Concerts, Inc.,
453 U.S. 247, 271 (1981) (finding a municipality defendant is
not liable for punitive damages for causes of action brought
pursuant to 42 U.S.C. § 1983).
The United States Supreme Court has held that punitive
damages may not be awarded in private suits brought pursuant
to the ADA or the Rehabilitation Act.
Barnes v. Gorman, 536
U.S. 181, 189 (2002); see also Alvarado v. Cajun Operating
Co., 588 F.3d 1261, 1268 (9th Cir. 2009) (finding that
punitive and compensatory damages are not available for ADA
retaliation claims).
In his Opposition, Plaintiff concedes that “42 U.S.C. §
1981a(b)(1) expressly does not provide for recovery of
punitive damages for violation of Title I of the ADA and the
Rehabilitation Act against a government, government agency or
42
political subdivision.”
(Plaintiff’s Opposition at p. 30, ECF
No. 73).
Plaintiff argues that he is entitled to punitive damages
pursuant to Hawaii state law.
(Id., citing HRS § 368-17(a)).
Contrary to Plaintiff’s position, the Hawaii Supreme Court has
found that punitive damages are not available against the City
and County of Honolulu pursuant to Hawaii state law.
Lauer v.
Y.M.C.A., 557 P.2d 1334, 1341-42 (Haw. 1976).
The Hawaii Supreme Court explained that “public policy
dictates the conclusion that the City, as a municipal
corporation, should not be held liable for punitive damages.
The innocent taxpayers, the intended beneficiary from the
public example which the punishment makes of the wrongdoer,
should not suffer.”
Id.; see Matubang v. City and County of
Honolulu, CV. Nos. 09-130ACK-KSC, 10-173ACK-KSC, 2010 WL
1850184, *9 (D. Haw. May 7, 2010) (finding the City and County
of Honolulu is not liable for punitive damages from claims
based in common law or state tort law).
Punitive damages are not available in this case.
Defendants’ Amended Motion for Summary Judgment as to
Plaintiff’s pleading for punitive damages is GRANTED.
CONCLUSION
43
Defendants’ Amended Motion for Summary Judgment (ECF No.
57) is GRANTED.
There are no remaining claims or parties herein.
The Clerk of Court is DIRECTED to enter judgment in favor
of Defendants and to close the case.
IT IS SO ORDERED.
DATED: May 29, 2014, Honolulu, Hawaii.
/s/ Helen Gillmor
Helen Gillmor
United States District Judge
Joseph N. Souza v. Kenneth Silva; City and County of Honolulu;
Honolulu Fire Department; John Does 1-10; Doe Partnerships 15; Doe Corporations 1-5; Doe Governmental Entities 1-5, Civ.
No. 12-00462 HG-BMK; ORDER GRANTING DEFENDANTS’ AMENDED MOTION
FOR SUMMARY JUDGMENT (ECF No. 57)
44
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