Lee v. Hawaii Pacific University et al
Filing
84
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT re 68 ; 71 - Signed by Judge BARRY M. KURREN on 2/26/2014. "For the foregoing reasons, the Court GRANTS De fendants' Motion for Summary Judgement and DENIES Plaintiff's Motion for Summary Judgment. The Clerk of Court is DIRECTED to enter Judgment in favor of Defendants and to close this case." (emt, )CERTI FICATE 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
MAROL K. LEE aka MAROL K.
LOFTIS,
)
)
)
Plaintiff,
)
)
vs.
)
)
HAWAII PACIFIC UNIVERSITY, )
ET AL.,
)
)
Defendants.
)
______________________________ )
Civ. No. 12-00604 BMK
ORDER GRANTING
DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION
FOR SUMMARY JUDGMENT
ORDER GRANTING DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT AND DENYING PLAINTIFF’S
MOTION FOR SUMMARY JUDGMENT
Before the Court are Defendants Hawaii Pacific University (“HPU”),
Deborah Nakashima, and John Kearns’ (“Defendants”), and Plaintiff Marol K.
Lee’s (“Lee”) cross Motions for Summary Judgment. (Docs. 68, 71.) The Court
heard these Motions on February 11, 2014. After careful consideration of the
Motions and the supporting memoranda, Defendants’ Motion for Summary
Judgment is GRANTED, and Plaintiff’s Motion for Summary Judgment is
DENIED.
FACTUAL BACKGROUND
At the time of the events leading to this lawsuit, Lee was employed as
the Director of HPU’s Navy College Program Distance Learning Partnership and
Off-Island Advising (“NCPDLP/OIA”). (Gallogly Decl ¶ 7.)1 In this capacity, Lee
was responsible for all Navy Distance Learning students participating in the
program online and away from campus. (Id.)
In addition to her role as Director of NCPDLP/OIA, Lee also served
as an on-call adjunct professor teaching on-base courses for the Military Campus
Program (“MCP”). (Lee 10/17/13 Depo pp. 70-73.) As an adjunct professor, Lee
worked under short-term contracts that continued for the duration of the particular
course being taught. (Id. pp. 83-86.)
While employed by HPU, Lee was also enrolled as a graduate student
in the MCP. (Lee 10/24/13 Depo p. 208.) As a student, Lee applied for and
received federal loans for graduate students. (Id. at 215-16.) Lee used at least
some of these loan funds to pay for enrollment in undergraduate courses. (Id. at
216.)
1
Ralph Gallogly served as Lee’s immediate supervisor while she was Director of
NCPDLP/OIA. (Gallogly Decl ¶ 8.)
2
During Lee’s tenure at HPU, Stacie Espina (“Espina”) worked as
HPU’s Senior Financial Aid Advisor. (Id. at 155.) In this capacity, Espina assisted
NCPDLP/OIA and MCP students with financial aid and regularly coordinated with
Lee. (Id. at 156, 158) Espina also assisted Lee in completing her own student
financial aid forms. (Id. at 214.) Espina, like Lee, was also enrolled as a student at
HPU. (Gallogly Decl ¶ 10.) As a student, Espina took several classes taught by
Lee, including, on two occasions, taking the same class multiple times while
receiving an “A” grade in the class each time. (Id.)
On January 13, 2012, Lee appeared before an HPU investigatory
panel convened to inquire into the possibility that Espina was guilty of
“overawarding” her own financial aid. (Nakashima Depo at 55:12-13, ex. F.) This
panel was composed of Assistant Vice President of Human Resources Dailyn
Yanagida-Ishii (“Ishii”), Director of Internal Audit Kelli Green (“Green”), and
Executive Director of Student Academic Services Deborah Nakashima
(“Nakashima”). (Nakashima Depo, ex. F.) HPU’s Motion for Summary
Judgment asserts that during the Espina investigation, suspicion arose that Lee had
also engaged in misconduct as both an employee and student. (HPU MSJ at 9.)
Accordingly, HPU initiated internal investigations of Lee in her capacity as both an
employee and as a student.
3
On January 19, 2012, Ishii delivered a letter to Lee informing her that,
“[e]vidence from an independent investigation suggests that you engaged in
conduct violating University policies when you inappropriately used your position
as Director of NCPDLP and Off Island Advising to obtain benefits for which you
may not have been eligible.” (Nakashima Depo, ex. A.) Specifically, the letter
stated that Lee was suspected of violating HPU’s Employee Handbook by
falsifying records and abuse of position. (Id.) The letter informed Lee that an
“objective and impartial investigation will be conducted” by Ishii and Green into
possible employment misconduct, and that Nakashima would also be present in
connection with an investigation into possible student misconduct. (Id.) Finally,
the letter instructed Lee that, effective immediately, she was being placed on
unpaid administrative leave from her position as Director. (Id.)
On January 27, 2012, Nakashima sent Lee a letter informing her that
she was suspected of violating HPU’s Code of Student Conduct. (Nakashima
Depo, ex. B.) Specifically, Lee was suspected of providing false information on
her financial aid forms, unauthorized alteration or use of class registration forms,
and theft of financial aid. (Nakashima Depo at 23-24, 27.) The letter stated the
matter would be adjudicated in accordance with the policies and procedures set out
in the Code of Student Conduct and that until a final investigation and proceedings
4
are complete, Lee was being placed on “interim suspension” as a student.
(Nakashima Depo, ex. B)
On January 30, 2012, Lee appeared before the same investigatory
panel that had previously interviewed her about Espina. (Nakashima Depo, ex. G.)
In her signed statement from this January 30 interview, Lee acknowledged that she
was enrolled in a master’s degree program, had received Graduate Plus loans, but
had taken primarily undergraduate courses that may not count toward a graduate
degree. (Nakashima Depo, ex. G at 2.) Lee stated she was unaware that Graduate
Plus loans were only for students taking courses toward a graduate degree. (Id.)
In regard to her financial aid, Lee stated that she had stopped asking
for staff tuition waivers “because I felt financial aid was a better option.” (Id.) Lee
stated further that she did not ask questions when she received a financial aid
refund in Term 1 of 2011 of $14,000, double what she had received for the same
term the previous year. (Id.)
In regard to her position as an adjunct professor and employee, Lee
admitted that she had enrolled Espina in her class even though she had already
taken it, because without a threshold of 7-8 students the class would be canceled.
(Nakashima Depo, ex. G at 3.) “My course enrollment was low and I wanted it to
‘go.’” (Id.) Lee stated that it had been her intention to drop Espina from the class
5
after it began, but she forgot. (Id.) According to Lee, Espina had also been
enrolled multiple times for the same online courses taught by Lee, but there was no
record of her ever logging in to participate. (Id.) Lee said that she had also
enrolled herself in courses for the purpose of helping other instructors meet
enrollment thresholds. (Id.)
The day after Lee’s investigatory interview, Lee contacted Nakashima
via email concerned that because she was on administrative leave, her children’s
health benefits were being terminated. (Nakashima Depo, ex. C.) Lee’s email
continued, “I haven’t been afforded an opportunity to address my concerns HPU
may have prior to theses events. I feel that I should have an attorney present with
me so I can understand what is going on.” (Id.) Nakashima responded that she
adjudicates student issues “which has nothing to do with your position as a staff
member.” (Id.) Nakashima advised Lee that attorneys were not permitted in
Student Conduct hearings, but that she could have an adviser attend, who could be
a fellow student, staff member, of member of the faculty. (Id.) Nakashima
informed Lee she would be contacted by her assistant to schedule her student
hearing. (Id.) In regard to her employment, Nakashima told Lee, “those concerns
should be addressed with your supervisor” or Ishii, the Assistant Vice President of
Human Resources. (Id.)
6
According to email exchanges between Lee and Nakashima, Lee was
apparently unable to schedule a time for Lee’s Student Conduct hearing in a timely
fashion. (Nakashima Depo, ex. H.) Unable to schedule an additional Student
Conduct Hearing, Lee elected to use the statement she had provided at the January
30 investigatory hearing in lieu of a second interview. (Nakashima Depo at 6061.)
On March 5, 2012, Nakashima sent Lee a letter “as a final resolution”
of the allegations of non-academic student misconduct that had been made against
her. (Lee MSJ, ex. 5.) This letter stated that Lee had been found “responsible” for:
1) intentionally furnishing false information to the university; 2) forgery,
unauthorized alteration, or unauthorized use of university documents; 3) attempted
or actual theft of property or services; and 4) unstated violations of federal, state,
or local law. (Id.) As a result, Lee was placed on “University Probation” until
completion of her second master’s degree, and required to meet with a graduate
advisor in her current program in order to register for further courses. (Id.)
On April 18, 2012, John Kearns, then Vice President of Academic
Affairs, wrote to Lee regarding her employment at HPU. (Lee MSJ, ex. 6.) The
letter informed Lee that she was being terminated from her position as Director of
NCPDLP and OIA. The letter continued,
7
investigators found it more likely than not that you
engaged in the following misconduct: Improper student
registration and grade inflation for a co-worker (“CoWorker Y”). The investigators found that you permitted
Co-worker Y to register for MGMT 2500 a second time,
despite Co-worker Y having received an “A” the first
time she took the course. The investigators also found
that you permitted Co-worker Y to register for MGMT
3000 a second time, despite Co-worker Y having
received an “A” the first time she took the course. The
investogators further found that not only did you register
Co-worker Y for the second round of MGMT 2500 and
3000 courses; you were the instructor for all fours
courses . . . . Finally, the investigators found, based in
part on your admissions, that as Co-worker Y’s instructor
for 3 online courses, you awarded her “A” grades without
requiring her to complete course requirements, or in all
instances, ever log into the course.
(Id.) This conduct was found to violate HPU’s prohibition against “falsification:
falsifying, altering or misstating facts of employment applications, University
records, customer records, and reports such as leave requests, attendance records
and work records. Committing a fraudulent act.” (Id.) Kearns’s letter noted,
however, that termination from her Directors position “does not apply to your
future course assignments as an adjunct professor.” (Id.)
Days after termination from her Directors position, Lee filed a claim
for Unemployment Benefits with the State of Hawaii. (Lee MSJ, ex. 8) In
connection with Lee’s application, HPU’s Department of Human Resources
(“HR”) was asked to provide information to the State regarding the “claimant’s
8
eligibility for benefits.” (Id.) On the information request form, HR indicated that
Lee was still on payroll as a part-time adjunct professor. (Id.) Lee asserts that this
statement regarding continuing employment resulted in the denial of her
application for unemployment benefits. (Complaint at 4.)
In regard to actually continuing to work as an adjunct professor, Lee
stated that she contacted her supervisor Ralph Gallogly to ask if she would still be
able to teach. (Lee 10/24/13 Depo at 224.) Gallogly responded, after checking
with other members of HPU’s administration, that Lee would be unable to teach
due to her termination. (Id.) Lee states that, despite being told she would be
unable to teach, she continued to be listed on HPU’s website as an adjunct
professor, and received no response when she emailed for further clarification as to
whether she would be able to teach. (Id.)
Six months after her termination as Director of NCPDLP/OIA Lee
filed a two count Complaint against Defendants in state court asserting: Count I,
violation of state laws; and Count II, violation federal laws. (Complaint at 4-5.)
As a matter of Hawaii law, Lee asserted: 1) violations of her state constitutional
right to due process and equal protection; 2) intentional interference with her
prospective economic advantage; and 3) intentional and negligent infliction of
severe emotional distress. (Id.) As a matter of federal law, Lee alleged violation
9
of her constitutional rights to equal protection and due process “in that [Lee] was
terminated and suffered discrimination in terms, conditions, and privileges or her
employment.” (Id.) Shortly after the filing of Lee’s Complaint, Defendants
removed this case to federal court pursuant to 28 U.S.C. § 1331 and 28 U.S.C. §
1367(a). (Doc. 1.) Now before the Court are cross Motions for Summary
Judgment.
STANDARD OF REVIEW
A motion for summary judgment may not be granted unless the court
determines that there is no genuine issue of material fact, and that the undisputed
facts warrant judgment for the moving party as a matter of law. See Fed. R. Civ. P.
56(c). In assessing whether a genuine issue of material fact exists, courts must
resolve all ambiguities and draw all factual inferences in favor of the non-moving
party. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986); see also
Cline v. Indus. Maint. Eng’g & Contracting Co., 200 F.3d 1223, 1228 (9th Cir.
2000). However, the non-moving party cannot rely upon conclusory allegations
unsupported by factual data to create an issue of material fact. Hansen v. U.S., 7
F.3d 137, 138 (9th Cir. 1993).
In deciding a motion for summary judgment, the court’s function is
not to try issues of fact, but rather, it is only to determine whether there are issues
10
to be tried. Anderson, 477 U.S. at 249. If there is any evidence in the record from
which a reasonable inference could be drawn in favor of the non-moving party on a
material issue of fact, summary judgment is improper. See T.W. Elec. Serv., Inc.
v. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 631 (9th Cir. 1987).
DISCUSSION
I.
Violation of Due Process and Equal Protection
Lee asserts she “had a constitutionally protected property interest in
continued employment and she may not be deprived of that employment without
due process of law.” (Lee MSJ at 9.) According to Lee, her rights to due process
were violated when she was terminated as Director of NCPDLP/OIA and not
afforded an opportunity to review documents constituting her alleged falsification,
not allowed to confront her accusers, and not afforded the right to legal
representation.2 (Lee Opp. at 8.)
Defendants counter that a civil action based on the deprivation of due
process rights requires a showing that the deprivation was committed by a person
2
In her deposition, Lee also asserts violations of her due process rights in connection
with her student probation and in not being contacted for continued work as an adjunct professor.
(Lee 10/24/13 Depo at 226-227.) However, it appears that the only due process claims
addressed in either Lee’s Motion for Summary Judgment or Lee’s Opposition to Defendants’
Motion for Summary Judgment relate to her employment. (See Lee MSJ at 6, Lee Opp. at 8.)
Accordingly, the Court limits its analysis to Lee’s assertion that she was denied employment
without due process.
11
acting under color of state law. (Def.’s Motion at 17.) Because HPU is a private
institution, Defendants assert there is no such showing, and Lee has failed to state a
cognizable claim. (Id. at 20.) Lee argues that HPU’s involvement with veteran’s
programs and extensive government funding create a sufficient nexus between
HPU and state and federal government to make HPU a “government actor” for
purposes of due process protection. (Lee Reply at 4-10.) As discussed below, the
Court finds that Lee has failed to show that she has a protected property interest in
continued employment at HPU sufficient to trigger the requirements of
constitutional due process. Accordingly the Court need not address whether HPU
is (or is not) a government actor.
The right to procedural due process under the Fourteenth Amendment
protects individuals from being deprived of either liberty or property without
adequate notice and hearing. Board of Regents of State Colleges v. Roth, 408 U.S.
564, 571-72 (1972). To have a constitutionally protected property interest in a
benefit such as employment, “a person clearly must have more than an abstract
need or desire for it. He must have more than a unilateral expectation of it. He
must, instead, have a legitimate claim of entitlement to it.” Roth, 408 U.S. at 577.
A claim of entitlement, in turn, is not created by the Constitution, but rather is
created and defined by an independent source such as state law. Id. at 577; see also
12
Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 538 (1985) (holding that
Ohio civil service statute stating that employees would not be dismissed except for
misfeasance, malfeasance, or nonfeasance established property right in continued
employment requiring due process before termination).
In the case of government employed university or college instructors,
absent a statute speaking to employment, as in Loudermiller, a protected property
interest in continued employment may be created if the instructor has a legitimate
claim to tenure or if the terms of employment make clear that the employee can
only be fired for cause. See Roth, 480 U.S. at 576-78 (holding that due process
protections were not required where professor had no legitimate claim to tenure);
Perry v. Sindermann, 408 U.S. 593, 599-603 (1972) (holding that internal faculty
guide suggesting dismissal would only be for cause created a triable issue of fact as
to whether a property interest in employment had been created); see also Blantz v.
California Dept. of Corrections, 727 F.3d 917, 922 (9th Cir. 2013) (applying the
Roth - Sindermann framework to government contractor and finding no legitimate
property interest in continued employment).3
3
For purposes of state constitutional protections, Hawaii has adopted the same
framework set out in Roth and Sindermann. See Abramson v. Board of Regents, Univ. of
Hawaii, 548 P.2d 253, 262 (Haw. 1976) (holding that in the absence of any university rule or
policy an instructor had no legitimate claim to continued employment in a tenured position after
concluding a probationary period).
13
Lee has failed to demonstrate that her position of employment as
Director of NCPDLP/OIA was a position to which she had a legitimate claim of
entitlement. Lee does not assert that she held a tenured position at HPU and has
not presented evidence of internal HPU policies that make clear employees can be
fired only for cause. Indeed, citing HPU’s Employee Handbook, Lee admits “there
is no doubt that Ms. Lee’s employment can be characterized as ‘at will’” (Lee
MSJ at 11), and recognizes that the Handbook states “any employee can be
terminated at any time for any reason.” (Lee Reply at 14.)
Lee nonetheless argues, pursuant to Kinoshita v. Canadian Pacific
Airlines, Ltd., 724 P.2d 110 (Haw. 1986), that HPU effectively issued a policy
constraining its authority to terminate employees at-will. (Lee Motion at 11.)
Kinoshita, like Sindermann, held that where an employer issues policies or
procedures creating an atmosphere of job security and fair treatment, the employer
could not then disregard those rules and treat employees as terminable at will.
Kinoshita, 724 P.2d at 117. Lee, however, cites no policy statement “in a manual
or otherwise,” id., to support the contention that HPU had adopted policies
qualifying employees’ at will status. Rather, Lee points to the deposition of a
fellow professor for the proposition that it was a common practice to allow
students to enroll in the same classes multiple times. (Lee Motion at 12.)
14
That another teacher asserted it was common practice to enroll
students in classes multiple times, to effectively pad the class and ensure sufficient
enrollment, is insufficient to demonstrate that HPU adopted, endorsed, or was even
aware of the practice. Moreover, the student enrollment practices of
teacher/employees does not represent an HPU policy affecting job security
sufficient to alter HPU’s express at will employment policy.
Aside from this unavailing argument based on Kinoshita, Lee’s
Motion for Summary Judgment simply asserts that she has a protected property
interest in continued employment. Lee offers a citation to Kekai v. Hargrave, 649
F.2d 748 (9th Cir. 1981), with no analysis or discussion whatsoever, and follows
with the conclusory statement that “Ms. Lee demonstrated she has a legitimate
claim of entitlement to her employment.”4 (Lee MSJ at 6.) The court finds that
Lee has not demonstrated any such claim of entitlement to continued employment.
Absent any showing that Lee had a legitimate claim to continued employment, the
Court holds that Lee was terminable at will, and that HPU was not required to
provide notice of hearing prior to terminating Lee. Lacking a property interest in
her continued employment, Lee has no grounds to assert a due process violation.
4
Notably Kekai involved an employee who was held to have no legitimate property
interest in continued employment.
15
Having already acknowledged her at will status, Lee, however,
attempts to revive her due process claim, arguing that she falls into an exception to
the terminable at will doctrine. She asserts that even though employed at will, her
termination was an unlawful violation of public policy. (Lee Motion at 11.) The
Court disagrees.
The Hawaii Supreme Court has held that where an employer’s
discharge of an employee “violates a clear mandate of public policy,” the employer
may be tortiously liable. Parnar v. Americana Hotel, Inc., 652 P.2d 625, 631
(Haw. 1982). To determine whether a “clear mandate of public policy” has been
violated, Hawaii courts inquire whether the employer’s conduct “contravenes the
letter or purpose of a constitutional, statutory, or regulatory provision or scheme.”
Id. In Parnar, for example, the termination of an at will employee was held to be a
possible retaliatory discharge in furtherance of a statutory antitrust violation. Id.
Accordingly, the statutory violation created an exception to the employer’s right to
terminate an employer at will, and gave rise to a possible tort claim for retaliation.
Lee’s only claim of constitutional, statutory, or regulatory violation is
her due process claim. As discussed above, the Court finds that Lee has no
cognizable due process claim because she was terminable at will and had no claim
of entitlement to continued employment. Lee cannot argue that she falls into a
16
public policy exception to the terminable at will doctrine based on a non-existent
constitutional due process right. This is an untenable circular argument. Lee had
no right to due process because she was terminable at will. She cannot assert that
she was not terminable at will because of her due process rights.
Lee does not allege any other specific constitutional, statutory, or
regulatory violations in connection with her termination. Other than due process,
Lee presents no specific public policy violation, but rather simply asserts that such
an exception to at will employment generally exists. The Court finds that in the
context of her due process claim, Lee’s vague assertion of a tortious public policy
violation is a red herring without foundation.
The Court holds that Lee has failed to provide evidence of a due
process claim because she has not shown a sufficient property interest in her
continued employment with HPU. Moreover, even if there was some basis in law
for requiring that Lee receive due process - notice and a hearing prior to her
termination - the Court notes that Lee received both. Lee received a letter
informing her that she was under investigation for possible employee misconduct,
which spelled out the general charge against her. After receiving notice, Lee
appeared before an investigatory panel and made a statement that she was
permitted to review and approve. Lee provides no authority for her assertion that
17
she had a right to confront her accusers and consult with counsel in connection
with this investigatory hearing.
II.
Intentional Interference With Prospective Business Advantage
Lee asserts that HPU committed the tort of Intentional Interference
with Prospective Business Advantage when HPU led her to believe that she could
continue working as an adjunct professor, but never called back to schedule her for
any classes. Lee asserts that as an adjunct she could have taught up to seven
classes a year earning $2,350 per class for a total of $16,450 per year. Lee states
that “because no one called her to work” she took a part-time job earning only
$8,650 for the year. Therefore Lee claims HPU’s actions resulted in damages
equal to the difference between what she could have earned teaching seven classes
and what she actually earned at her part-time job. (Lee Opp. at 9.) Additionally,
Lee asserts that but for HPU listing her as on payroll as an adjunct professor, she
could have received $560 per week in unemployment benefits. Accordingly Lee
asserts HPU intentionally caused her to loose a year of unemployment benefits, or
an additional $29,120.
Intentional or tortious interference with prospective business
advantage (“IPBA”) requires:
(1) the existence of a valid business relationship or a
prospective advantage or expectancy sufficiently definite,
18
specific, and capable of acceptance in the sense that there
is a reasonable probability of it maturing into a future
economic benefit to the plaintiff;
(2) knowledge of the relationship, advantage, or
expectancy by the defendant;
(3) a purposeful intent to interfere with the relationship,
advantage, or expectancy;
(4) legal causation between the act of interference and
the impairment of the relationship, advantage, or
expectancy; and
(5) actual damages.
Robert’s Hawaii Sch. Bus, Inc. v. Laupahoehoe Transp. Co., Inc., 982 P.2d 853,
887 (Haw. 1999) (citing Locricchio v. Legal Services Corp., 833 F.2d 1352, 1357
(9th Cir. 1987)). As explained in Locricchio, the “valid business relationship” or
“prospective advantage or expectancy” protected by the tort IPBA is between the
plaintiff and a third-party. Locricchio 833 F.2d at 1357 (“there must be a
‘colorable economic relationship’ between the plaintiff and a third party with ‘the
potential to develop into a full contractual relationship.”); see also Hawaii Medical
Ass’n v. Hawaii Medical Service Ass’n, 148 P.3d 1179, 1217 (Haw. 2006).
(quoting Locricchio, 833 F.2d at 1357).
Accordingly, a claim of IPBA may be made against a defendant that is
accused of interfering with the relationship between the plaintiff and a third-party.
19
This is in keeping with the primary object of the tort of IPBA, to ensure free
competition among business competitors, but to limit competitors from unduly
interfering with each other once contractual or firm business relationships have
materialized with third parties. See Robert’s, 982 P.2d at 887.
To the extent that Lee’s IPBA claim against HPU is premised on HPU
not offering Lee continuing work as an adjunct professor, there is no third-party to
be interfered with. The only relationship at play is between employer and
employee. Lee cites no authority for permitting IPBA claims against one’s
employer. Accordingly, as matter of law, Lee has failed to state a valid claim for
IPBA with respect to her work as an adjunct professor
To the extent that Lee’s IPBA claim is based on the denial of her
unemployment benefits, Lee contends that her relationship with the Department of
Labor and Industrial Relations (“DLIR”), from which she sought unemployment
benefits, constitutes a “valid business relationship.” (Lee Reply at 16.) Lee,
however, presents no case precedent or cognizable argument to support her
contention that the relationship between an applicant and a government agency
from which the applicant seeks benefits can be characterized as a “business
relationship” for purposes of IPBA. Certainly Lee has no contractual relationship
with DLIR. Neither does she have a “prospective advantage or expectancy” that is
20
reasonably probable to mature into “future economic benefit” given that Hawaii
Revised Statutes (“HRS”) § 383-30(2) expressly disqualifies employees discharged
for misconduct from receiving unemployment benefits. See also Medeiros v.
Hawaii Department of Labor and Industrial Relations, 118 P.3d 1201, 1213 (Haw.
2005) (“where a claimant . . . is found to have been discharged for misconduct . . .
neither the beneficent intent of the unemployment benefits statute nor the rule of
liberal construction, trumps the clear and unambiguous language of HRS 383-30(2)
that the individual is disqualified from receiving unemployment benefits.”).
Accordingly, the Court finds that, as a matter of law, Lee cannot satisfy the first
element required to prove IPBA in regard to either her continued employment as a
adjunct professor or the receipt of unemployment benefits.
III.
Intentional Infliction of Emotional Distress
Lee asserts that employees of HPU committed the tort of Intentional
Infliction of Emotional Distress (“IIED”) when they led her to believe she would
still be employed as an adjunct professor but never actually provided her with
additional work. (Lee Opp. at 10.) Lee claims she was led on by the combination
of Kearns’s termination letter, noting that her position as an adjunct professor was
not affected, and the HR Department’s submission to DLIR that she was still
employed by HPU as an adjunct. (Lee Opp. at 10.) Lee asserts that this conduct
21
caused her severe emotional distress because she was unable to continue earning a
living teaching and was unable to collect unemployment benefits. (Id. at 11)
The elements of IIED are: “1) that the act allegedly causing the harm
was intentional or reckless, 2) that the act was outrageous, and 3) that the act
caused 4) extreme emotional distress to another.” Hac v. Univ. of Hawaii, 73 P.3d
46, 60-61 (Haw. 2003).
To demonstrate the first element, a plaintiff must show
that the defendant acted either with a ‘desire to inflict
severe emotional distress, ... where he knows that such
distress is certain, or substantially certain, to result from
his conduct or recklessly ... in deliberate disregard of a
high degree of probability that the emotional distress will
follow.
Ritchie v. Wahiawa Gen. Hosp., 597 F. Supp. 2d 1100, 1110 (D. Haw. 2009)
(internal quotes omitted). Recklessness, in turn, “involves more than
‘inadvertence, incompetence, unskillfulness, or a failure to take precautions’ but
instead rises to the level of a conscious choice of a course of action . . . with
knowledge of the serious dangers to other involved in it.’” Id. To satisfy the
second element, the act in question must have been “so outrageous in character,
and so extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious, and utterly intolerable in a civilized community.” Id.; see
also Ross v. Stouffer Hotel Co., 879 P.2d 1037, 1048 (Haw. 1994) (holding that
22
the discharge of an employee for a violation of company policy did not constitute
behavior “beyond all bounds of decency”).
Lee has failed to satisfy either of these elements. Lee has presented
no evidence that either Kearns or the HR Department acted with either conscious
desire to inflict harm or acted with deliberate disregard of probable severe
emotional harm to Lee. Neither has Lee presented any evidence or substantial
argument that Kearns’s letter or the HR Department’s response to DLIR constitutes
outrageous conduct “beyond all bounds of decency.”
In his deposition, Kearns stated that he reviewed and approved the
letter terminating Lee from her Directors position and indicated that her position as
an adjunct would be addressed separately. (Kearns 4/3/13 Depo at 15-16.)
Although the timing is unclear from the record, Lee’s supervisor Gallogly later
informed her that due to her termination as Director she would not be offered
further work as an adjunct professor.
Even if the HR Department was incorrect in reporting to DLIR that
Lee was still employed as an adjunct professor, this error falls short of constituting
an intentional or reckless “conscious choice” with knowledge of its consequences
for injury. Moreover, it is certainly not “outrageous in character, and so extreme in
degree, as to go beyond all possible bounds of decency, and to be regarded as
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atrocious, and utterly intolerable in a civilized community.” Accordingly, the
Court holds that the undisputed facts of the case warrant summary judgment for the
Defendants on the issue of IIED.
IV.
Negligent Infliction of Emotional Distress
“Recovery for negligent infliction of emotional distress by one not
physically injured is generally permitted only when there is some physical injury to
property or [another] person resulting from the defendant’s conduct.” Soone v.
Kyo-Ya Co., Ltd., 353 F. Supp. 2d 1107, 1118 (D. Haw. 2005). Lee does not
allege a physical injury to herself, her property, or another person.
The Hawaii Supreme Court has, however, carved out some exceptions
to this rule, such as where emotional distress was “particularly foreseeable.” See
e.g., John & Jane Roes v. FHP, Inc., 985 P.2d 661, 665 (Haw. 1999) (holding that
exposure to HIV blood and the associated fear of physical harm could support an
NEID claim without an actual showing of injury). Id. Generally, exceptions to the
physical harm requirement arise from the application of the “reasonable man”
standard; situations “where a reasonable man, normally constituted, would be
unable to adequately cope with the mental stress engendered by the circumstances
of the case.” Id. (citing Rodrigues v. State, 472 P.2d 509, 520 (Haw. 1970).
Soone, held, however, that the loss of employment, though no doubt stressful,
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would not fall into this exception. Soone 353 F. Supp. 2d at 1118. The Court
reaches a similar conclusion here, and holds that Lee’s loss of employment without
more, is insufficient to satisfy the “reasonable man” standard.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’ Motion
for Summary Judgement and DENIES Plaintiff’s Motion for Summary Judgment.
The Clerk of Court is DIRECTED to enter Judgment in favor of Defendants and to
close this case.
DATED: Honolulu, Hawaii, February 26, 2014.
IT IS SO ORDERED.
/S/ Barry M. Kurren
Barry M. Kurren
United States Magistrate Judge
Marol K. Lee aka Marol K. Loftis v. Hawaii Pacific University, et al,, Civ. No. 12-00604 BMK;
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND
DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT.
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