Onodera v. Kuhio Motors Inc. et al
Filing
54
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT 38 . Signed by JUDGE DERRICK K. WATSON on 3/13/14. ~ Defendants' Motion to Dismiss Plaintiff's First Ame nded Complaint is hereby DENIED IN PART and GRANTED IN PART. The Motion is DENIED as to Onodera's retaliation claims against Kuhio under Title VII and HRS § 378-2and Onodera's HWPA claims against Kuhio under HRS § 378-62. The Moti on is GRANTED in all other respects, and no claims remain against Defendants Mackeyor Rivera individually. (ecs, )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAI`I
DAVID ONODERA,
Plaintiff,
vs.
KUHIO MOTORS INC.; DAN
MACKEY; LIANE RIVERA; DOE
PARTNERSHIPS, CORPORATIONS,
GOVERNMENTAL UNITS OR
OTHER ENTITIES 1-10,
CIVIL NO. 13-00044 DKW- RLP
ORDER GRANTING IN PART AND
DENYING IN PART
DEFENDANTS’ MOTION TO
DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT
Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
On March 27, 2012, Kuhio Motors fired four-year parts department
manager, David Onodera, less than a month after he complained of being harassed
and discriminated against by Kuhio’s human resources manager, Liane Rivera. In
February 2012, Rivera had entered the men’s restroom to berate Onodera while he
urinated with genitals exposed. Because Onodera could have reasonably believed
that his complaints to Kuhio were “protected activity,” and because Kuhio
terminated him soon after making these complaints, Kuhio’s motion to dismiss
Onodera’s retaliation and whistleblower claims is denied. Defendants’ motion to
dismiss is granted in all other respects.
BACKGROUND
On August 23, 2013, this Court granted in part, denied in part, and
stayed in part Defendants’ motion for judgment on the pleadings with regard to
Onodera’s original January 28, 2013 complaint. Dkt. No. 32 (“August Order”). In
doing so, the Court stayed Onodera’s HRS 378-2 claims against Defendants
Mackey and Rivera individually, pending clarification from the Hawai‘i Supreme
Court, and dismissed each of Onodera’s remaining claims, with the exception of
his Title VII and HRS § 378-2 retaliation claims against Kuhio.
On September 24, 2013, having been given leave, Onodera filed a first
amended complaint (“FAC”). Like the original, the FAC again alleges that
Onodera was subject to “various incidents” of harassment because of his gender
while working at Kuhio. However, only one such incident, including the report
that followed (collectively, the “restroom incident”), is identified:
13.
On February 29, 2012, Plaintiff Onodera was subjected
to discrimination based on sex (male) when Defendant
Rivera (female) entered a men’s restroom while Plaintiff
Onodera and another male employee, Nicholas Pedro,
were relieving themselves at urinals within the restroom.
14.
In violation of a company policy related to sexual
harassment in the workplace, [Defendant Rivera]
abruptly entered the men’s restroom while Plaintiff
2
Onodera and Nicholas Pedro had unzipped their pants
and held their exposed genitalia while urinating.
15.
Subsequently, Defendant Rivera began yelling at Plaintiff
Onodera and additionally, inappropriately stared at
Plaintiff Onodera’s exposed genitalia as she violated
Plaintiff Onodera’s privacy. Defendant Rivera remained
in the men’s restroom for at least thirty seconds while
Plaintiff Onodera and Mr. Pedro were partially exposed.
16.
After Defendant Rivera exited the employee restroom,
Plaintiff Onodera was clearly and outrightly offended,
demeaned, and startled by Defendant Rivera’s actions.
In addition, Defendant Rivera’s conduct and behavior, as
explained above, was unwelcome to Plaintiff Onodera.
17.
On February 29, 201[2], after the restroom incident,
Defendant Rivera issued a false and inaccurate
counseling report . . ., purposefully omitting the location
of the incident. Defendant Rivera omitted the location of
the incident because she knew that she may have sexually
discriminated against Plaintiff Onodera. Defendant
Rivera’s omission was also in violation of company
policy related to sexual harassment.
FAC ¶¶ 13–17, 32–36; see EEOC Charge at 1 (“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, Rivera drafted and issued me a counseling report that
3
contained inaccurate information about the incident.”).1 Along with a hostile work
environment as a result of the restroom incident, Onodera also alleges, for the first
time, disparate treatment:
Other female employees similarly situated to Plaintiff Onodera
were not treated in the same ways he was treated in the
workplace with respect to the Defendants[’] failure to
appropriately process and investigate his complaint of sex
discrimination and his eventual termination on March 27, 2012.
FAC ¶ 43.
The FAC also describes Onodera’s retaliation claim in more detail
than the original complaint:
49.
On March 1, 2012, based on Defendant Rivera’s actions,
Plaintiff Onodera held a reasonable belief that he had
been discriminated based on sex and submitted a formal
complaint of sex discrimination. Plaintiff Onodera
further made this complaint because he believed
Defendant Rivera’s conduct to be in violation of the
relevant Federal and State laws and policies which
protected against discrimination in the workplace.
50.
When Plaintiff Onodera submitted his formal complaint
of sex discrimination to Defendant Mackey [(Kuhio’s
President/Owner)], Defendant Mackey threatened that
Plaintiff Onodera would be terminated.
51.
Subsequently, Plaintiff Onodera simply requested that
Defendant Mackey take proactive measures to rectify
Defendant Rivera’s false counseling report which
omitted the location of the February 29, 2012 restroom
1
As in the Motion for Judgment on the Pleadings, Defendants again request the Court to take
judicial notice of the EEOC Charge. The Court agrees to do so for the reasons described in the
Court’s August Order at 5–6.
4
incident, and further, properly investigate Plaintiff
Onodera’s sex discrimination complaint in compliance
with the company’s sexual harassment policy.
52.
On or about the first week in March 2012, Defendant
Mackey requested that Plaintiff Onodera prepare a
counseling report accurately explaining the Feb[ruary]
29, 2012 restroom incident, at which point he would sign
off on it. Defendant Mackey also represented to Plaintiff
Onodera that he would investigate his sex discrimination
complaint.
53.
From the first week in March 2012 up until Plaintiff
Onodera’s termination on March 27, 2012, no
disciplinary and/or remedial measures were taken against
Defendant Rivera by Defendant Kuhio Motors or
Defendant Mackey. Further, Defendants failed to
investigate Plaintiff[] Onodera’s sex discrimination
complaint in violation of the company’s policy
preventing sex discrimination in the workplace.
...
56.
On March 27, 2012, Plaintiff Onodera received written
notice from Defendant Mackey that he was being
terminated from his position with Defendant Kuhio
Motors.
FAC ¶¶ 49–53, 56; see EEOC Charge at 1.
The FAC also adds a new claim against all Defendants for violation of
the Hawai’i Whistleblower Protection Act (“HWPA”), HRS §378-62, alleging that:
As a result of Plaintiff Onodera[’s] complaint of [a] violation of
a law to his employer, Defendant Mackey, acting on behalf of
Defendant Kuhio Motors, threatened to terminate Plaintiff
Onodera on March 1, 2012 and subsequently terminated
Plaintiff Onodera on March 27, 2012, in direct retaliation for
Plaintiff Onodera’s previous complaints.
5
FAC ¶ 66.
In sum, the FAC asserts five claims:
Count I:
Title VII sex discrimination against Kuhio;
Count II:
Title VII retaliation against Kuhio;
Count III:
HRS §378-2 sex discrimination against all Defendants;
Count IV:
HRS §378-2 retaliation against all Defendants; and
Count V:
HRS §378-62 whistleblower protection violations against
all Defendants.
Defendants move to dismiss all claims pursuant to Fed. R. Civ. P. 12(b)(6).
STANDARD OF REVIEW
Rule 12(b)(6) permits a motion to dismiss for failure to state a claim
upon which relief can be granted. Pursuant to Ashcroft v. Iqbal, “[t]o survive a
motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” 555 U.S. 662, 678
(2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)).
“[T]he tenet that a court must accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.” Id. Accordingly, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). Rather, “[a]
claim has facial plausibility when the plaintiff pleads factual content that allows
6
the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). Factual allegations
that only permit the court to infer “the mere possibility of misconduct” do not
constitute a short and plain statement of the claim showing that the pleader is
entitled to relief as required by Rule 8(a)(2). Id. at 679.
DISCUSSION
Defendants move to dismiss all five counts of the FAC. The Motion
is DENIED as to Onodera’s retaliation and whistleblower claims against Kuhio
and GRANTED in all other respects. Each count of the FAC is addressed below.
I.
Counts I and III: Title VII and HRS § 378-2 Sex Discrimination
In the August Order, this Court concluded that even accepting all the
allegations of the restroom incident as true, Onodera failed to state a hostile work
environment claim because the allegations surrounding the restroom incident gave
no indication of any actions taken, or comments made, because of Onodera’s sex.
Despite Onodera’s amendments, the allegations in the FAC still do not state a
plausible claim, entitling Defendants to dismissal. The Court also dismisses the
disparate treatment allegations for failure to exhaust.
“To prevail on a hostile work environment sexual harassment claim,
the plaintiff must show that her work environment was both subjectively and
7
objectively hostile . . . . [and] that any harassment took place because of sex.”2
Dominguez-Curry v. Nevada Transp. Dep’t, 424 F.3d 1027, 1034 (9th Cir. 2005)
(internal citations and quotation marks omitted); HRS § 378-2 (forbidding
discriminatory practices taken by an employer “because of . . . sex”).
Despite Onodera’s efforts at amendment, his allegations still do not
support the notion that the restroom incident, and subsequent report, occurred
because Onodera is male. The only noteworthy additions to the facts in the FAC
are that: another male employee was also in the restroom at the time of the
incident; Rivera “inappropriately stared at Onodera’s exposed genitalia”; and
Rivera remained in the restroom for at least thirty seconds while Onodera and the
2
As the Court noted in the August Order, the specific elements of a Title VII hostile work
environment sexual harassment claim are that:
“(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
other male employee were “partially exposed.” FAC ¶¶ 33–34. These allegations
do not alter Onodera’s own explanation that the restroom incident was the product
of an argument between himself and Rivera that began outside of and continued
into the restroom and concerned “comments [Onodera] made about [another]
employee’s resignation.” EEOC Charge at 1.
Further, in describing Rivera’s report as an act of sex discrimination,
Onodera conclusorily states that, “Defendant Rivera omitted the location of the
incident because she knew that she may have sexually discriminated against
Plaintiff Onodera.” FAC ¶ 17, 36. This allegation is tantamount to a threadbare
recital of an element supported only by a conclusory statement, which is
insufficient to survive dismissal. Iqbal, 555 U.S. at 678.3
The FAC also briefly alludes to a claim of disparate treatment:
Other female employees similarly situated to Plaintiff Onodera
were not treated in the same ways [Onodera] was treated in the
workplace with respect to the Defendants[’] failure to
appropriately process and investigate his complaint of sex
discrimination and his eventual termination on March 27, 2012.
FAC ¶ 43. Defendants contend that Onodera failed to exhaust his administrative
remedies with regard to this allegation, and that even if he had exhausted his
remedies, the allegation is a bare legal conclusion, insufficient to state a claim.
3
Although the Court need not reach the question of whether the conduct alleged by Onodera was
sufficiently severe or pervasive to alter his working conditions, the Court is extremely skeptical
that the single incident cited by Onodera is enough to meet the Fuller or Nelson test. See August
Order at 9 n.3.
9
Onodera counters that the disparate treatment claim would be expected to grow out
of what he alleged in the EEOC Charge, and thus his disparate treatment claim was
exhausted. The Court agrees with Defendants.
“The district court has subject matter jurisdiction over allegations of
discrimination that either ‘[fall] within the scope of the EEOC’s actual
investigation or an EEOC investigation which can reasonably be expected to grow
out of the charge of discrimination.’” Yamaguchi v. U.S. Dep’t of the Air Force,
109 F.3d 1475, 1480 (9th Cir. 1997) (quoting EEOC v. Farmer Bros. Co., 31 F.3d
891, 899 (9th Cir. 1994)). There is no dispute that Onodera did not explicitly state
allegations related to disparate treatment in the EEOC Charge. Opp. at 11. Thus,
Onodera is not contending that the EEOC actually investigated disparate treatment,
but instead argues that in liberally construing his EEOC Charge, a disparate
treatment claim could have reasonably grown out of the allegations therein. The
Court disagrees.
There is nothing in the EEOC Charge that would point the EEOC to
the possibility of a disparate treatment claim. “[T]he inquiry into whether a claim
has been sufficiently exhausted must focus on the factual allegations made in the
charge itself, describing the discriminatory conduct about which a plaintiff is
grieving.” Freeman v. Oakland Unified Sch. Dist., 291 F.3d 632, 637 (9th Cir.
2002). Examining the EEOC Charge here, the factual allegations relate
10
exclusively to the restroom incident, the report of that incident by Rivera,
Onodera’s complaint to Mackey about the restroom incident, and Onodera’s
termination. Nothing in these allegations would have reasonably caused the EEOC
to investigate similarly situated female employees, and, indeed, no such
investigation occurred. Nor do these allegations suggest that the EEOC should
have looked into any differences in how Kuhio handled discrimination complaints
brought by its male and female employees. Moreover, allegations of disparate
treatment “clearly would not have been necessary to, or addressed in, the scope of
an investigation into the conduct of [Rivera and Mackey].” Id. In short, because
allegations of disparate treatment would not have been expected to grow out of the
investigation of Onodera’s EEOC Charge, and no such disparate treatment claim
was expressly alleged, Onodera has failed to exhaust administrative remedies with
regard to disparate treatment. Id. at 637–38.
Counts I and III are dismissed in their entirety.
II.
Count II and IV: Title VII and HRS § 378-2 Retaliation
Onodera asserts Title VII and HRS § 378-2 retaliation claims against
Kuhio (Counts II and IV).4 Defendants contend that the retaliation claims fail
4
While Onodera also asserts his state law-based retaliation claims (Count IV) against Defendants
Mackey and Rivera individually, those claims are expressly precluded by Hawai’i law. Lales v.
Wholesale Motors Co., 2014 WL 560829, at *10 (Haw. Feb. 13, 2014). Moreover, although the
Court dismisses Onodera’s state law-based sex discrimination claims (Count III) for the reasons
discussed infra, Lales also mandates dismissal of the portion of Count III asserted against
Defendants Mackey and Rivera individually.
11
because there was no actual discrimination by Kuhio in violation of Title VII or
HRS § 378-2 and Onodera could not have held a reasonable, good-faith belief that
the restroom incident (and the subsequent reporting of that incident) was an
unlawful employment practice. Defendants also argue that the retaliation claims
should be dismissed because Rivera’s conduct related to the restroom incident was
not an employment practice by Kuhio sufficient to trigger the protections of
Title VII or HRS § 378-2. Both arguments are unavailing.
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). The requirements for retaliation under HRS § 378-2 are
essentially the same. Schefke v. Reliable Collection Agency, Ltd., 96 Hawai‘i 408,
426, 32 P.3d 52, 70 (2001). Defendants only contest the first element.
An employee’s complaint regarding an allegedly unlawful
employment practice is a “protected activity” for purposes of retaliation—
regardless of whether the practice was actually unlawful—so long as the
employee’s belief that an unlawful practice occurred was reasonable. See Little v.
Windermere Relocation, Inc., 301 F.3d 958, 969 (9th Cir. 2001); Passantino v.
Johnson & Johnson Consumer Prods., Inc., 212 F.3d 493, 506 (9th Cir. 2000);
12
Moyo v. Gomez, 40 F.3d 982, 985 (9th Cir. 1994). Onodera alleges that he
complained of sex discrimination and harassment to Mackey immediately
following the restroom incident. FAC ¶¶ 37-38, 40, 49, 51, 55. This complaint
qualifies as protected activity so long as Onodera’s belief that he was harassed and
discriminated against was reasonable. The Court concludes that it was.
“If a person has been subjected to only an isolated incident, a
complaint about that incident does not constitute protected activity unless a
reasonable person would believe that the isolated incident violated Title VII [or
HRS § 378-2]. This reasonable person determination requires ‘[l]ooking at all the
circumstances, including the frequency of the discriminatory conduct[ ][and] its
severity.’” EEOC v. Go Daddy Software, Inc., 581 F.3d 951, 964 (9th Cir. 2009)
(quoting Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 270–71 (2001)) (first
alteration added).
At the motion to dismiss stage, taking all of Onodera’s allegations as
true and drawing all inferences in his favor, the Court concludes that Onodera held
a reasonable belief that he was harassed and discriminated against because of his
gender. Although the Court has determined above that Onodera failed to
sufficiently plead an actual claim of harassment or gender discrimination arising
out of the restroom incident, this does not preclude a retaliation claim based on a
mistaken belief that there was discrimination:
13
[A] complaint about treatment of someone not covered by
discrimination laws can nonetheless give rise to a retaliation
claim if the complaining party reasonably believed that that
person was covered. It follows that an individual who is
reasonably mistaken about her own coverage by employment
discrimination laws may assert a claim for retaliation.
Strother v. S. Cal. Permanente Medical Group, 79 F.3d 859, 869 (9th Cir. 1996);
see Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994) (“An erroneous belief that
an employer engaged in an unlawful employment practice is reasonable . . . if
premised on a mistake made in good faith. A good-faith mistake may be one of
fact or of law.”). “[E]ven in instances in which a claim is based on a single
incident of harassment, ‘the test in the Ninth Circuit is whether the complaining
party has an objectively reasonable belief, with due allowance given for lack of
legal knowledge . . . .’” Whitley v. City of Portland, 654 F. Supp. 2d 1194, 1215
(D. Or. 2009) (quoting Figueroa v. Paychex, Inc., 1999 WL 717349, at *11 (D. Or.
Sept. 7, 1999)) (some internal quotation marks omitted); see Moyo, 40 F.3d at 985
(“The reasonableness of [an employee’s] belief that an unlawful employment
practice occurred must be assessed according to an objective standard—one that
makes due allowance, moreover, for the limited knowledge possessed by most
Title VII plaintiffs about the factual and legal bases of their claims.”).
Accepting Onodera’s allegations as true, Rivera, a female, entered the
men’s restroom while Onodera and another male employee were relieving
themselves and were partially exposed. Rivera stared at the two partially exposed
14
male employees and yelled at Onodera for a comment he had made related to
another employee’s resignation. Although, as discussed above, these allegations
are ultimately insufficient to support direct claims of discrimination or harassment
going forward, it was objectively reasonable for Onodera, who presumably had
limited legal knowledge, to view the restroom incident as a possible act of sex
discrimination or harassment. It is obviously neither typical, nor generally
appropriate, for a person to enter the restroom of the opposite gender and see other
employees partially exposed, relieving themselves. A reasonable person in this
situation would likely feel uncomfortable and could, without understanding the
legal requirements of a successful discrimination claim, believe that they were
subject to sexual harassment and/or discrimination. See, e.g., Whitley,
654 F. Supp. 2d at 1215 (holding that a single conversation with a supervisor
related to the employee’s clothing was not Title VII sex discrimination, but
allowing the retaliation claim to go forward, even at summary judgment, because
“the imposition of a bright-line rule that employees must undergo either a
sufficiently serious single incident or possess legal certainty that conduct violates
Title VII before qualifying for protection from retaliation would run directly
contrary to the well-established rule that an employee who in good faith reports
discrimination or harassment is protected from retaliation even if a subsequent
investigation revealed no unlawful employment action had occurred.”).
15
Defendants also reassert the argument that Rivera’s acts do not
amount to an employment practice of Kuhio necessary to satisfy the first prima
facie element. Consistent with Ninth Circuit law, this Court previously held that a
human resources manager, like Rivera, can act on behalf of an employer for
purposes of retaliation. August Order at 13 (citing EEOC v. Crown Zellerbach
Corp., 720 F. 2d 1008, 1013–14 (9th Cir. 1983)).
Defendants now emphasize that Onodera only alleges a single
incident, not a continuing “practice,” and that Rivera was not responsible for hiring
or firing. These arguments are unpersuasive. Employees can be permitted to
proceed on retaliation claims based on a single incident. See, e.g., Lavarias v. Hui
O Ka Koa, LLC, 2007 WL 3331866, at *6–10 (D. Haw. Nov. 7, 2007). Further,
drawing all inferences in favor of Onodera, the FAC alleges that Rivera, as
Kuhio’s human resources manager, was responsible for employment matters,
which is sufficient to impute her conduct to Kuhio. Crown Zellerbach, 720 F. 2d
at 1013–14.
Accordingly, Onodera has stated a retaliation claim against Kuhio
under both Title VII and HRS § 378-2. See Lalau v. City and County of Honolulu,
938 F. Supp. 2d 1000, 1011 (D. Haw. 2013) (analysis is the same for claims under
both Title VII and HRS 378-2).
16
III.
Count V: HWPA Claim
Onodera alleges that the conduct supporting the retaliation claim also
gives rise to a violation of the HWPA and therefore asserts a claim under HRS
§ 378-62 against all Defendants.5 In seeking dismissal of the HWPA claim,
Defendants make the same arguments that they set forth to dismiss Onodera’s
retaliation claims: that is, that Onodera did not have an objectively reasonable
belief that Defendants’ conduct was in violation of the law. Because the Court
disagrees with Defendants, as discussed in the previous section, infra, Count V
likewise remains against Kuhio.
Count V, however, cannot stand as against Defendants Mackey and
Rivera individually. In Lales, the Hawai‘i Supreme Court held that, “[i]ndividual
employees are . . . not liable as ‘employers’ for harassment and retaliation claims
under HRS §§ 378-2(1)(A) and 378-2(2).” Lales v. Wholesale Motors Co., 2014
WL 560829, at *10 (Haw. Feb. 13, 2014). This decision was based on the Hawai‘i
Supreme Court’s interpretation of the definition of “employer” under HRS § 3781. Id. at *12–17. This Court previously analyzed the meaning of “employer”
5
The elements of an HWPA claim are similar to the prima facie elements for retaliation:
First, there must be a showing that the employee engaged in protected conduct as
it is defined by the HWPA. Second, the employer is required to take some
adverse action against the employee. Third, there must be a causal connection
between the alleged retaliation and the whistleblowing.
Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1131 (D. Haw. 2008) (internal quotation marks and
citation omitted).
17
under HRS 378-2 and under the HWPA, and concluded that the definition under
both statutes is the same:
Nothing in the legislative history of section 378–62 and of
section 378–61 evidences any intent that the definition of
“employer” in section 378–61 be read more broadly than the
definition in section 378–1. . . . It makes little sense to treat
claims under section 378–2(2) differently from identical claims
under section 378–62 . . . . Because the legislature did not
clearly indicate an intent to include individuals in the definition
of “employer” in section 378–61, this court does not stretch to
give that statute such a meaning.
Lum v. Kauai County Council, 2007 WL 3408003, at *20–21 (D. Haw. Nov. 9,
2007). Accordingly, in light of Lales, and the extension of its application to the
HWPA, the Court dismisses Count V as against Defendants Rivera and Mackey
individually. See Sparling v. Hoffman Constr. Co., 864 F.2d 635, 638 (9th Cir.
1988) (trial court may sua sponte dismiss for failure to state a claim without notice
or an opportunity to respond where “the plaintiffs cannot possibly win relief”
(alteration, citation and internal quotation marks omitted)).
IV.
Amendment
Onodera seeks leave to amend to cure any defects in the FAC
identified by this Court. However, such amendment would be futile. In the
August Order, and at oral argument, the Court noted the difficulty in relying solely
on the restroom incident to support Onodera’s harassment and sex discrimination
claims. The Court also cautioned Onodera to be mindful of exhaustion
18
requirements when considering the addition of any new claims. August Order at 7,
21. In response, the FAC provides no additional instances of harassment or
discrimination, and Onodera’s efforts to provide more detail as to the restroom
incident are still insufficient to support Counts I and III against Kuhio. Further,
amendment would not cure Onodera’s inability to bring individual claims against
Defendants Rivera or Mackey under Title VII, HRS 378-2 or the HWPA.
Accordingly, Onodera is denied leave to amend. See Salameh v. Tarsadia Hotel,
726 F.3d 1124, 1133 (9th Cir. 2013) (“Although a district court should grant the
plaintiff leave to amend if the complaint can possibly be cured by additional
factual allegations, dismissal without leave to amend is proper if it is clear that the
complaint could not be saved by amendment. A district court’s discretion to deny
leave to amend is particularly broad where the plaintiff has previously amended.”
(internal brackets, quotation marks, and citations omitted)).
CONCLUSION
Defendants’ Motion to Dismiss Plaintiff’s First Amended Complaint
is hereby DENIED IN PART and GRANTED IN PART. The Motion is DENIED
as to Onodera’s retaliation claims against Kuhio under Title VII and HRS § 378-2
and Onodera’s HWPA claims against Kuhio under HRS § 378-62. The Motion is
19
GRANTED in all other respects, and no claims remain against Defendants Mackey
or Rivera individually.
IT IS SO ORDERED.
DATED: HONOLULU, HAWAI‘I, March 13, 2014.
Onodera v. Kuhio Motors, et al.; CV 13-00044 DKW/RLP; ORDER GRANTING
IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS
PLAINTIFF ’S FIRST AMENDED COMPLAINT
20
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