Onodera v. Kuhio Motors Inc. et al

Filing 32

ORDER GRANTING IN PART, DENYING IN PART, AND STAYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING DEFENDANTS' REQUEST FOR ATTORNEYS' FEES 14 . Signed by JUDGE DERRICK K. WATSON on 08/23/2013. (eps )-- Plaintiff is granted leave to amend the Complaint by September 24, 2013. If the Plaintiff chooses to amend, the Court admonishes Plaintiff to be cognizant of any exhaustion requirements for claims and allegations not part of the EEOC Char ge. 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 HAWAI`I

CIVIL NO. 13-00044 DKW- RLP

DAVID ONODERA,
Plaintiff,
vs.
KUHIO MOTORS INC.; DAN
MACKEY; LIANE RIVERA; DOE
PARTNERSHIPS, CORPORATIONS,
GOVERNMENTAL UNITS OR
OTHER ENTITIES 1-10,

ORDER GRANTING IN PART,
DENYING IN PART, AND
STAYING IN PART DEFENDANTS’
MOTION FOR JUDGMENT ON
THE PLEADINGS AND DENYING
DEFENDANTS’ REQUEST FOR
ATTORNEYS’ FEES

Defendants.

ORDER GRANTING IN PART, DENYING IN PART, AND STAYING IN
PART DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
AND DENYING DEFENDANTS’ REQUEST FOR ATTORNEYS’ FEES

INTRODUCTION
Before the Court is Defendants Kuhio Motors, Inc. (“Kuhio Motors”),
Dan Mackey (“Defendant Mackey” or “Mackey”), and Liane Rivera’s (“Defendant
Rivera” or “Rivera”) (collectively, “Defendants”) Motion for Judgment on the
Pleadings (the “Motion”), filed on May 3, 2013. Plaintiff David Onodera
(“Plaintiff”) opposed the Motion and a hearing was held on August 9, 2013. After

careful consideration of the supporting and opposing memoranda, the
accompanying documentation, and the relevant legal authority, the Motion is
hereby DENIED IN PART as to Plaintiff’s retaliation claims under Title VII and
Hawaii Revised Statutes (“HRS”) Ch. 378 against Kuhio Motors; STAYED IN
PART as to the HRS Ch. 378 retaliation claims against Defendant Mackey and
Defendant Rivera in their individual capacities; and GRANTED IN PART on all
other claims. Defendants request for attorneys’ fees is also DENIED. Plaintiff is
granted leave to amend the Complaint by September 24, 2013.
BACKGROUND
Plaintiff was employed at Kuhio Motors beginning in August of 2006
as a parts manager. He asserts that he was recognized for his performance as a
parts manager and that he performed his job duties in a satisfactory manner.
Complaint ¶ 11; Cataldo Decl., Ex. A (“EEOC Charge”) at 1.
Plaintiff alleges that he was subject to “various incidents” of
harassment because of his gender (male) while working at Kuhio Motors.
However, Plaintiff describes only one specific instance of harassment or
discrimination (the “restroom incident”):
On February 29, 2012, Human Resources Manager Liane
Rivera (female) entered the men’s workplace restroom and
began yelling at me about a comment I made about an
employee’s resignation. At the time, I was at a urinal relieving
myself. I was offended by Rivera’s behavior. Later that day,
2

Rivera drafted and issued me a counseling report that contained
inaccurate information about the incident.
EEOC Charge at 1; see Complaint ¶¶ 13–15. At the hearing, Plaintiff’s counsel
represented that the restroom incident was the most “glaring” of the “various
incidents” of harassment and discrimination that occurred while Plaintiff was
employed at Kuhio Motors but did not identify or describe any others.
Because he was offended by the restroom incident, Plaintiff submitted
a complaint of sexual harassment on March 1, 2012 to Defendant Mackey, the
president and owner of Kuhio Motors. Although unspecific, Plaintiff alleges
generally that Defendant Mackey did not address the complaint in an “appropriate”
manner and that Defendant Rivera was not disciplined as a result of the restroom
incident. A few weeks later, on March 27, 2012, Plaintiff received written notice
from Defendant Mackey terminating Plaintiff’s employment with Kuhio Motors.
Plaintiff contends that this termination was in retaliation for his filing of the sexual
harassment complaint. EEOC Charge at 1; Complaint ¶¶ 17–18, 23.
Plaintiff filed a Charge of Discrimination with both the EEOC and the
Hawaii Civil Rights Commission on May 3, 2012. He received right to sue letters
from both agencies on October 31, 2012, and December 7, 2012, respectively, and
initiated this action on January 28, 2013, within the appropriate 90-day period.
The Complaint asserts the following claims: violations of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e et seq.; violations of HRS
3

Ch. 368; violations of HRS Ch. 378; wrongful termination; intentional infliction of
emotional distress; negligent infliction of emotional distress; violation of the public
policy exception to “at-will” employment; and punitive damages. Defendants
move for judgment on the pleadings for all claims.
STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(c) permits parties to move for
judgment on the pleadings after the pleadings are closed. Fed. R. Civ. P. 12(c).
“Analysis under Rule 12(c) is ‘substantially identical’ to analysis under Rule
12(b)(6) because, under both rules, ‘a court must determine whether the facts
alleged in the complaint, taken as true, entitle the plaintiff to a legal remedy.’”
Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012) (quoting Brooks v.
Dunlop Mfg. Inc., No. 10-04341 CRB, 2011 WL 6140912, at *3 (N.D. Cal. Dec. 9,
2011)).
For a Rule 12(c) motion, the allegations of the nonmoving party are
accepted as true, while the contradicting allegations of the moving party are
assumed to be false. See MacDonald v. Grace Church Seattle, 457 F.3d 1079,
1081 (9th Cir. 2006). “The Court inquires whether the complaint at issue contains
‘sufficient factual matter, accepted as true, to state a claim of relief that is plausible
on its face.’” Harris v. Cnty. of Orange, 682 F.3d 1126, 1131 (9th Cir. 2012)
(quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). Therefore, “‘[a] judgment
4

on the pleadings is properly granted when, taking all the allegations in the nonmoving party’s pleadings as true, the moving party is entitled to judgment as a
matter of law.’” Marshall Naify Revocable Trust v. United States, 672 F.3d 620,
623 (9th Cir. 2012) (quoting Fajardo v. Cnty. of L.A., 179 F.3d 698, 699 (9th Cir.
1999)).
DISCUSSION
Defendants move for judgment on the pleadings on all eight counts1
of Plaintiff’s First Amended Complaint. Defendants also request attorneys’ fees.
The Court DENIES the Motion as to Plaintiff’s retaliation claim against Kuhio
Motors under Title VII and HRS Ch. 378 and DENIES Defendants’ request for
attorneys’ fees. The Motion is STAYED as to the HRS Ch. 378 retaliation claims
against Defendant Mackey and Defendant Rivera in their individual capacities.
The Court GRANTS the Motion in all other respects.
I.

Judicial Notice of the EEOC Charge
As a preliminary matter, Defendants request that the Court take

judicial notice of the Plaintiff’s EEOC Charge. Plaintiff took no position on the
request, but noted that Ninth Circuit precedent appears to permit the Court to take

1

The First Amended Complaint contains typographical errors in the sequence of roman numerals
for the eight claims asserted therein—e.g., skipping from Count IV to Count X in numbering.
Accordingly, the Court will refer to the claims by the substantive law raised, as opposed to using
the Complaint’s roman numerals. For clarity, the conclusion of this order does provide
parenthetical references to the Complaint’s roman numerals for the claims that are not granted
judgment on the pleadings at this time.

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judicial notice of an EEOC Charge as part of a motion for judgment on the
pleadings. “Although, as a general rule, a district court may not consider materials
not originally included in the pleadings in deciding a Rule 12 motion, Fed. R. Civ.
P. 12(d), it ‘may take judicial notice of matters of public record’ and consider them
without converting a Rule 12 motion into one for summary judgment.” United
States v. 14.02 Acres of Land, 547 F.3d 943, 955 (9th Cir. 2008) (quoting Lee v.
City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001)). Because an EEOC
Charge is a matter of public record, the Court grants Defendants’ request to take
judicial notice of that document. U.S. EEOC v. Global Horizons, Inc., 860 F.
Supp. 2d 1172, 1193 n.5 (D. Haw. 2012); Gallo v. Bd. of Regents of Univ. of Cal.,
916 F. Supp. 1005, 1007 (S.D. Cal. 1995).
II.

Title VII and HRS Ch. 378 Claims
Defendants move for judgment on the pleadings on Plaintiff’s Title

VII and HRS § 378-2 claims, arguing first that Plaintiff has failed to plead facts
that would make these claims plausible. Under these two statutory provisions, the
Complaint asserts (1) a hostile work environment claim (alleging sexual
harassment from the restroom incident) and (2) a retaliation claim for being
terminated as a result of complaining of the sexual harassment. Complaint
¶¶ 23, 27. The Court holds that the Complaint and EEOC Charge fail to state a
plausible hostile work environment claim. However, the retaliation claim against
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Kuhio Motors is plausible and thus survives the Motion. Further, the state law
retaliation claims against Defendant Mackey and Defendant Rivera individually
are stayed pending a decision by the Hawai‘i Supreme Court on individual liability
under HRS § 378-2. The Court otherwise grants judgment on the pleadings for the
retaliation claims.
A.

Hostile Work Environment Claims
Regarding the hostile work environment claim due to sexual

harassment, Plaintiff generally asserts that “Defendants[’] actions and decision
related to Plaintiff Onodera’s employment with Defendant Kuhio Motors
constituted discrimination based on sex . . . .” Complaint ¶ 23; see id. ¶ 27. The
only specific factual support that Plaintiff discusses in the Complaint for his hostile
work environment claim (and for any claim) is the bathroom incident. However,
even accepting all of the allegations of the bathroom incident as true, the Court
concludes that there is no plausible Title VII or HRS § 378-2 claim arising out of
that incident.
“To prevail on a hostile work environment sexual harassment claim,
the plaintiff must show that her work environment was both subjectively and
objectively hostile . . . . The plaintiff also must prove that any harassment took
place because of sex.”2 Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d

2

The specific elements of a Title VII hostile work environment sexual harassment claim are that:

7

1027, 1034 (9th Cir. 2005) (internal citations and quotation marks omitted); HRS
§ 378-2 (forbidding discriminatory practices taken by an employer “because of . . .
sex”). The Complaint and EEOC Charge give no indication that the bathroom
incident involved any actions taken, or comments made, because of Plaintiff’s sex.
Further, there is no factual allegation to plausibly support that Defendant Rivera
made any comments of a sexual nature as part of the bathroom incident. To the
contrary, Plaintiff’s own account indicates that Defendant Rivera “yelled at
[Plaintiff] about a comment [he] made about an employee’s resignation.” EEOC
Charge at 1. The fact that this occurred while Plaintiff “was at a urinal relieving
[him]self,” EEOC Charge at 1, does not transform, without something more, the
bathroom incident into one of a sexual nature. See Oncale v. Sundowner Offshore

“(1) [plaintiff] was subjected to verbal or physical conduct of a sexual
nature, (2) this conduct was unwelcome, and (3) the conduct was
sufficiently severe or pervasive to alter the conditions of the victim’s
employment and create an abusive working environment.”
Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1055 (9th Cir. 2007) (quoting Fuller v. City of
Oakland, 47 F.3d 1522, 1527 (9th Cir. 1995)). Under HRS § 378-2, the elements of a hostile
work environment sexual harassment claim are that:
(1) [the employee] was subjected to sexual advances, requests for sexual
favors, or other verbal or physical conduct or visual forms of harassment
of a sexual nature; (2) the conduct was unwelcome; (3) the conduct was
severe or pervasive; (4) the conduct had the purpose or effect of either:
(a) unreasonably interfering with the claimant’s work performance, or
(b) creating an intimidating, hostile, or offensive work environment;
(5) the claimant actually perceived the conduct as having such purpose or
effect; and (6) the claimant’s perception was objectively reasonable to a
person of the claimant’s gender in the same position as the claimant.”
Nelson v. Univ. of Hawaii, 97 Hawai‘i 376, 390, 38 P.3d 95, 109 (2001) (emphasis omitted).

8

Servs., Inc., 523 U.S. 75, 80 (1998) (“We have never held that workplace
harassment, even harassment between men and women, is automatically
discrimination because of sex merely because the words used have sexual content
or connotations. ‘The critical issue, Title VII’s text indicates, is whether members
of one sex are exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed.’” (quoting Harris v. Forklift
Systems, Inc., 510 U.S. 17, 25 (1993) (Ginsburg, J., concurring))). Accordingly,
Plaintiff has not stated a plausible claim for Title VII or HRS § 378-2 hostile work
environment because there is nothing specifically pled that would indicate any
harassment because of Plaintiff’s sex.3
Therefore, the Court grants the Motion as to the hostile work
environment sexual harassment claims under both Title VII and HRS § 378-2
against all Defendants.
B.

Retaliation Claims
Plaintiff also alleges retaliation claims against all the Defendants

under Title VII and HRS § 378-2. EEOC Charge at 1 (“Respondent retaliated

3

Additionally, both Title VII and HRS § 378-2 require that any harassment must be severe or
pervasive. The Complaint and EEOC Charge specify only one incident—the bathroom incident.
Even accepting all of the allegations as true, the description of the bathroom incident cannot
plausibly support an argument that Defendants’ harassment of Plaintiff was severe or pervasive.
The Court notes that the Complaint generally refers to other “various incidents of harassment and
an all[-]encompassing hostile work environment.” Complaint ¶ 12. This is a vague statement
with no specific factual allegations to support it. Consequently, this bare assertion of additional
instances of harassment cannot preclude judgment on the pleadings in favor of Defendants for
the hostile work environment claims.

9

against me for complaining about discrimination.”). The Court concludes that
judgment on the pleadings is proper for the Title VII claims against Defendant
Mackey and Defendant Rivera in their individual capacities. However, the Court
stays the HRS § 378-2 claims against Defendant Mackey and Defendant Rivera in
their individual capacities pending a decision by the Hawai‘i Supreme Court on the
issue of individual liability under HRS § 378-2. Finally, the Court determines that
Plaintiff’s retaliation claims against Kuhio Motors are plausibly pled under both
Title VII and HRS § 378-2 and thus survive the Motion.

1.

Retaliation Claims against Defendant Mackey and
Defendant Rivera in Their Individual Capacities

“[I]ndividual defendants are not liable under Title VII.” Kang v. U.
Lim America, Inc., 296 F.3d 810, 822 n.4 (9th Cir. 2002); accord Hills v. Serv.
Employees Int’l Union, No. 11-56611, 2013 WL 2242987, at *1 (9th Cir. May 22,
2013) (“[T]here is no individual liability under Title VII.” (citing Miller v.
Maxwell’s Int’l Inc., 991 F.2d 583, 587 (9th Cir. 1993))); Sherez v. State of Hawaii
Dep’t of Educ., 396 F. Supp. 2d 1138, 1145 (D. Haw. 2005) (“Individual
employees, including supervisors, are not liable as employers under Title VII”). In
his briefing, Plaintiff conceded that Defendant Mackey and Defendant Rivera are
not individually liable under Title VII. Consequently, judgment on the pleadings is

10

proper for Plaintiff’s Title VII claims against Defendant Rivera and Defendant
Mackey in their individual capacities.
Turning to the state law retaliation claims against Mackey and Rivera
individually, the Hawai‘i Supreme Court has not yet spoken definitively in terms
of individual liability under HRS § 378-2. The federal courts presented with the
question of individual liability under § 378-2 have relied on analogies to Title VII
and held that “there is no individual liability under Hawaii Revised Statutes § 3782(1)(A) and (2).” Lum v. Kauai County Council, 358 Fed. Appx. 860, 862 (9th
Cir. 2009); see Miller, 991 F.2d at 587–88. However, in a recent ruling by the
Hawai‘i Intermediate Court of Appeals (“ICA”) in Lales v. Wholesale Motors Co.,
No. 28516, 2012 WL 1624013 (Haw. App. May 9, 2012) (unpublished), cert.
granted, 2012 WL 4801373 (Haw. Oct. 9, 2012), the ICA held that “[a] plain
reading of the statutory provisions supports the conclusion that an individual
employee, who is an agent of an employer, can be held individually liable as an
‘employer.’ Moreover, HRS § 378–2(3) clearly provides that ‘any person[,]
whether an employee, employer, or not[,]’ is subject to individual liability for
aiding and abetting the prohibited discriminatory practices.” Id. at *10.
If the Hawai‘i Supreme Court affirms the ICA’s ruling in Lales, this
Court will apply that decision in deciding the applicability of § 378-2 to individual
employees. Until the Hawaii Supreme Court’s rules, however, the Court stays the
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portions of the Motion relating to the HRS § 378-2 retaliation claims against
Defendant Mackey and Defendant Rivera in their individual capacities. This stay
relates to the Motion but does not apply to discovery.
2.

Retaliation Claims Against Kuhio Motors

Defendants contend that the retaliation claims against Kuhio Motors
under both Title VII and HRS § 378-2 fail because the claims cannot meet the
requisite elements, discussed below. In particular, Defendants argue that the first
and third elements cannot be established by the pleadings.4 The Court disagrees
and denies the Motion as to the retaliation claims against Kuhio Motors both under
Title VII and HRS § 378-2.
Under Title VII, “[t]o make out a prima facie retaliation case, [an
employee] ha[s] to show [(1)] that she engaged in protected activity, [(2)] that she
suffered a materially adverse action, and [(3)] that there was a causal relationship
between the two. Westendorf v. W. Coast Contractors of Nev., Inc., 712 F.3d 417,
423 (9th Cir. 2013). Similarly, under HRS § 378-2, “the plaintiff must first
establish a prima facie case of . . . retaliation by demonstrating that (a) the plaintiff
(i) has opposed any practice forbidden by [HRS chapter 378, Employment
Practices, Part I, Discriminatory Practices] or (ii) has filed a complaint, testified, or
assisted in any proceeding respecting the discriminatory practices prohibited under

4

Defendants do not challenge the second element and the Court agrees that the termination of
Plaintiff on March 27, 2012 was a materially adverse employment action.

12

this part, (b) his or her employer, labor organization, or employment agency
[has] . . . discharge [d], expel[led], or otherwise discriminate[d] against the
plaintiff, and (c) a causal link [has] exist[ed] between the protected activity and the
adverse action.” Schefke v. Reliable Collection Agency, Ltd., 96 Hawai‘i 408, 426,
32 P.3d 52, 70 (2001) (quotation marks and internal citations omitted) (brackets in
original).
Defendants contend that Plaintiff’s retaliation claims against Kuhio
Motors fail the first prima facie element of retaliation because the acts of Rivera
cannot be imputed to Kuhio Motors as the employer. However, the cases cited by
Defendants plainly support the notion that a human resources manager (i.e.,
Defendant Rivera’s position at Kuhio Motors) can act on behalf of an employer for
purposes of retaliation claims. See EEOC v. Crown Zellerbach Corp., 720 F.2d
1008, 1014 (9th Cir. 1983) (holding that a personnel manager “was an agent
appointed by [the employer] for purposes of employment matters” and thus, any
opposition to the personnel manager’s conduct “[was] effectively objections to
‘unlawful employment practices’ by [the employer]”). Consequently, there is no
basis for Defendants’ argument that Defendant Rivera’s conduct during the
restroom incident could not be imputed to Kuhio Motors.5

5

The Court notes that the Complaint does not state that Defendant Rivera is being sued in her
official capacity. However, this would not preclude the Court from considering Rivera’s actions
as the conduct of Kuhio Motors for the retaliation claims against Kuhio Motors.

13

For the third retaliation element, Defendants posit that causation is not
established by the Complaint’s recitation of the date that Plaintiff submitted the
sexual harassment complaint, and the date of his termination less than four weeks
later. However, “in some cases, causation can be inferred from timing alone where
an adverse employment action follows on the heels of protected activity.”
Villiarimo v. Aloha Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002); see Yartzoff v.
Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987) (“Causation sufficient to establish
the third element of the prima facie case may be inferred from circumstantial
evidence, such as the employer’s knowledge that the plaintiff engaged in protected
activities and the proximity in time between the protected action and the allegedly
retaliatory employment decision.”). Accordingly, it is plausible that this element
could be established from the facts pled.
Because the Complaint and EEOC Charge provide sufficient facts to
support a plausible retaliation claim against Kuhio Motors, the Court denies the
Motion as to the retaliation claims against Kuhio Motors that are raised both under
Title VII and HRS § 328-2.
III.

HRS Ch. 368
Defendants argue that HRS Ch. 368 is an administrative chapter to

establish the procedures of the Hawai‘i Civil Rights Commission and thus does not
create any private right of action in that chapter itself. Plaintiff conceded in his
14

briefing that his claim under HRS Ch. 368 should be dismissed. Therefore, the
Court grants the Motion as to this claim.
IV.

Wrongful Termination and the Public Policy Exception to At-Will
Employment
Plaintiff vaguely asserts claims of “wrongful termination” and a

“violation of [the] public policy exception to [the] employment ‘at will’ rule
regarding wrongful discharge.” Complaint ¶¶ 28–29, 36–38. In his briefing,
Plaintiff clarifies that these are claims arising under Parnar v. Americana Hotels,
Inc., 65 Haw. 370, 380, 652 P.2d 625, 631 (1982) for wrongful discharge in
violation of public policy. Putting aside the fact that the Complaint itself does not
enumerate Parnar as the basis for the claims, such a claim is improper where,
accepting all allegations as true, the same conduct would be a violation of Title VII
and HRS § 378-2.
Parnar claims “cannot stand where a statute provides a sufficient
remedy for the violation . . . . Title VII and HRS § 378 expressly prohibit
workplace discrimination because of race and/or sex, and courts have found that as
a result, a plaintiff cannot state a Parnar claim based on the same conduct.”
Hughes v. Mayoral, 721 F. Supp. 2d 947, 962 (D. Haw. 2010) (listing cases).
Plaintiff makes no arguments to counter this point and the Court concludes that the
claims for wrongful discharge and violations of public policy are improper because
they are based on allegations that would violate Title VII and HRS § 378-2.
15

See, e.g., Ross v. Stouffer Hotel Co., 76 Hawai‘i 454, 464, 879 P.2d 1037, 1047
(1994) (affirming the circuit court decision “that an independent Parnar claim
could not be maintained where the public policy upon which the claim is based is
embodied in a statute, i.e., Part I of HRS Chapter 378, that itself provides a
sufficient remedy for its violation”).
The Motion is therefore granted as to Plaintiff’s claims of wrongful
discharge and a violation of the public policy exception to at-will employment.
V.

Intentional Infliction of Emotional Distress (“IIED”)
Plaintiff’s factual allegation supporting his IIED claim is limited to

one sentence which asserts that “Defendants actions and decisions related to
Plaintiff Onodera’s employment with Defendant Kuhio Motors caused him to
suffer severe emotional and psychological stress.” Complaint ¶ 31. However, the
only “actions and decision” that could be referred to is the same restroom incident
and the decision by Defendant Mackey to terminate Plaintiff as a result of
complaining of sexual harassment. The Court concludes that neither of these
events are the type of outrageous conduct that could support an IIED claim.
As pled in the Complaint, Plaintiff’s termination could not be an act to
support a claim of IIED. “‘Under Hawai‘i law, termination alone is not sufficient
to support an IIED claim; rather, what is necessary is a showing of something
outrageous about the manner or process by which the termination was
16

accomplished.’” Hollister v. Mrs. Gooch’s Natural Food Markets, Inc., 919 F.
Supp. 2d 1101, 1111 (D. Haw. 2013) (quoting Ho-Ching v. City & Cnty. of
Honolulu, CV No. 07–00237 DAE-KSC, 2009 WL 1227871, at *12 (D. Haw. Apr.
29, 2009); see Nelson v. Nat’l Car Rental Sys., Inc., CV No. 05-00374 JMS-LEK,
2006 WL 1814341, at *5 (D. Haw. June 30, 2006) (“A decision to terminate an
employee, even an unlawful one, generally does not by itself constitute outrageous
or extreme conduct sufficient to sustain a claim for IIED.”). Plaintiff proffers
nothing in the pleadings or the EEOC Charge to indicate that his termination was
outrageous in a way that would approach the level of conduct necessary to sustain
an IIED claim. See Ross, 76 at 465, 879 P.2d at 1048 (“Because [employee] has
failed to adduce any evidence that [employer] acted unreasonably in the course of
discharging him, we hold, on the record before us, that his claim for intentional
infliction of emotional distress was properly dismissed on summary judgment.”).
Further, as it is described in the Complaint and EEOC Charge, the
restroom incident involving Defendant Rivera does not approach outrageous
conduct that would cause extreme emotional distress. See Young v. Allstate Ins.
Co., 119 Hawai‘i 403, 429, 198 P.3d 666, 692 (2008) (“[T]he tort of IIED consists
of four elements: ‘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.’” (quoting Hac v. Univ. of Hawaii, 102 Hawai‘i 92,
17

106–07, 73 P.3d 46, 60–61 (2003))). Yelling at an employee while they are in the
restroom may be impolite, socially inappropriate, and lack tact, but under no
reading of the alleged facts could the Court conclude that Defendants’ conduct was
outrageous or extreme. See Shoppe v. Gucci America, Inc., 94 Hawai‘i 368, 387,
14 P.3d 1049, 1068 (2000) (holding, as a matter of law, that abusive verbal attacks
by an employer directed at an employee did not amount to outrageous conduct to
support an IIED claim).
Consequently, the Motion is granted as to the IIED claim.
VI.

Negligent Infliction of Emotional Distress (“NIED”)
Plaintiff’s NIED claim asserts only that “Defendants actions and

decision related to Plaintiff Onodera’s employment caused him to suffer severe
emotional and psychological stress.” Complaint ¶ 34. The Court concludes that
this claim fails because it pleads no actual injury to Plaintiff (or anyone else) that
would have caused Plaintiff to suffer emotional distress to support an NIED claim.
“‘[A]s a general matter, . . . the plaintiff must establish some predicate
injury either to property or to another person in order [for] himself or herself to
recover for [NIED].’” Kaho‘ohanohano v. Dep’t of Human Servs., 117 Hawai‘i
262, 306–07, 178 P.3d 538, 582–83 (2008) (quoting Doe Parents No. 1 v. State of
Hawaii, Dep’t of Educ., 100 Hawai‘i 34, 69, 58 P.3d 545, 580 (2002)) (last
brackets in original). “As such, the law as it currently stands in Hawai‘i is that an
18

NIED claimant must establish, incident to his or her burden of proving actual
injury (i.e., the fourth element of a generic negligence claim), that someone was
physically injured by the defendant’s conduct, be it the plaintiff himself or herself
or someone else.” Doe Parents No. 1, 100 Hawai‘i at 69–70, 58 P.3d at 580–81
(internal citation and emphasis omitted). Plaintiff has not pled any injury to
support his NIED claim other than a general reference to “emotional and
psychological stress.” This is insufficient for this claim to survive the Motion.
See Fawkner v. Atlantis Submarines, Inc., 135 F. Supp. 2d 1127, 1133 (D. Haw.
2001) (granting summary judgment on an NIED claim based on termination from
employment because, among other things, “[employee] has presented no evidence
of any physical injury to himself or anyone else as the result of the termination of
his Employment Agreement”).
Consequently, the Motion is granted as to the NIED claim.
VII. Punitive Damages
Plaintiff asserts a separate claim within the Complaint for punitive
damages and also seeks punitive damages in his prayer for relief. Complaint
¶¶ 39–40, prayer for relief ¶ E. The Court grants the Motion as to the separate
claim for punitive damages because “a claim for punitive damages is not an
independent tort, but is purely incidental to a separate cause of action.” Ross, 76
Hawai‘i at 466, 879 P.2d at 1049. However, “[p]unitive damages are available for
19

retaliation claims in the employment context.” Hale v. Hawaii Publications, Inc.,
468 F. Supp. 2d 1210, 1233 (D. Haw. 2006). Because the Court holds that some of
Plaintiff’s retaliation claims survive this Motion, punitive damages are an available
form of damages should Plaintiff prevail on those claims.
VIII. Request for Attorneys’ Fees
Within the Motion, Defendants requested attorneys’ fees should the
Court grant the Motion. Because the Court denies the Motion as to the retaliation
claims against Kuhio Motors, Defendants’ request for fees is premature and is thus
denied. Additionally, even if Defendants ultimately prevail on the retaliation
claims (as well as the stayed state retaliation claims against Mackey and Rivera
individually), the Complaint here is not “frivolous, unreasonable, or without
foundation,” such that Defendants would be entitled to attorneys’ fees.
Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978).
CONCLUSION
Defendants’ Motion for Judgment on the Pleadings is hereby
GRANTED IN PART, DENIED IN PART, and STAYED IN PART. The Motion
is DENIED as to Plaintiff’s retaliation claims against Kuhio Motors under Title
VII and HRS Ch. 378 (i.e., a part of Counts I and III). Defendants’ request for
attorneys’ fees is DENIED. The Motion is stayed as to the HRS Ch. 378
retaliation claims against Defendant Mackey and Defendant Rivera in their
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individual capacities (i.e., a part of Count III). The Motion is GRANTED in all
other respects. Plaintiff is granted leave to amend the Complaint by September 24,
2013. If the Plaintiff chooses to amend, the Court admonishes Plaintiff to be
cognizant of any exhaustion requirements for claims and allegations not part of the
EEOC Charge.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAI‘I, August 23, 2013.

Derrick K. Watson
United States District Judge

Onodera v. Kuhio Motors, et al.; CV 13-00044 DKW/RLP; ORDER GRANTING
IN PART, DENYING IN PART, AND STAYING IN PART DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS AND DENYING
DEFENDANTS’ REQUEST FOR ATTORNEYS’ FEES

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