Siales v. Hawaii Electric Company, Inc. et al

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS COMPLAINT, FILED FEBRUARY 26, 2013 IN THE CIRCUIT COURT OF THE FIRST CIRCUIT, OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT AND FOR ATTORNEYS FEES AND COSTS 8 . Signed by JUDGE LESLIE E. KOBAYASHI on 11/27/2013. The Motion is GRANTED to the extent that this Court GRANTS summary judgment in favor of Defendant as to Count I and Count II. The Motion is DENIED, however, with respect to Defendant's req uest to dismiss the Complaint and Defendant's request for attorneys' fees and costs. (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 HAWAII
CHARLES SIALES,

)
)
Plaintiff,
)
)
vs.
)
)
HAWAII ELECTRIC COMPANY, INC. )
dba HECO, a Hawaii
)
corporation,
)
)
Defendant.
_____________________________

CIVIL 13-00413 LEK-KSC

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS COMPLAINT, FILED FEBRUARY 26, 2013 IN THE
CIRCUIT COURT OF THE FIRST CIRCUIT, OR IN THE ALTERNATIVE
FOR SUMMARY JUDGMENT AND FOR ATTORNEYS’ FEES AND COSTS
On August 30, 2013, Defendant Hawaii Electric Company,
Inc., doing business as HECO, a Hawaii corporation (“Defendant”
or “HECO”), filed its Motion to Dismiss Complaint, Filed
February 26, 2013 in the Circuit Court of the First Circuit, or
in the Alternative for Summary Judgment and for Attorneys’ Fees
and Costs (“Motion”).

[Dkt. no. 8.]

Plaintiff Charles Siales

(“Plaintiff”) filed his memorandum in opposition on October 7,
2013, and Defendant filed its reply on October 11, 2013.1

[Dkt.

nos. 20, 22.]

1

Insofar as Defendant filed the instant Motion seeking
summary judgment, Defendant also filed its separate concise
statement in support of the Motion (“Defendant’s CSOF”) on
August 30, 2013. [Dkt. no. 9.] In response to Defendant’s CSOF,
Plaintiff filed a concise statement of facts on October 7, 2013
(“Plaintiff’s CSOF”). [Dkt. no. 21.]

This matter came on for hearing on October 28, 2013.
Appearing on behalf of Defendant was Mahilani Hiatt, Esq., and
appearing on behalf of Plaintiff was Michael Healy, Esq.

After

careful consideration of the Motion, supporting and opposing
memoranda, and the arguments of counsel, the Motion is HEREBY
GRANTED IN PART AND DENIED IN PART for the reasons set forth
below.
BACKGROUND
On February 26, 2013, Plaintiff filed his Complaint
against Defendant in state court.
1), Exh. 1 (“Complaint”).]

[Notice of Removal (dkt. no.

On August 23, 2013, Defendant removed

the instant action to this district court.

[Dkt. no. 1.]

The

Complaint alleges that Plaintiff was not offered a position at
HECO because of his race (Hawaiian/Pacific Islander) and national
origin (Micronesian).

[Complaint at ¶ 4.]

The Complaint alleges that, in May 2012, an agent of
Accountemps, a personnel placement agency, contacted Plaintiff
regarding a position at HECO.

[Id. at ¶ 8.A.]

Wilfred Lum, HECO

Supervisor, Field Services & Collections, asked the Accountemps
agent to have its applicants come in for testing no later than
May 7, 2012, as HECO needed applicants available to start as
early as the week of May 21, 2012, but would first need to
complete a background check.

[Def.’s CSOF, Decl. of Wilfred Lum

(“Lum Decl.”) at ¶ 12; id., Exh. 5.]

2

On May 7, 2012, Plaintiff

successfully passed the phase one tests for the part-time Data
Entry Assistant position at HECO.

[Lum Decl. at ¶ 13.]

Plaintiff also completed a “Non-Employee Application for HECO ID
and HECO Access” form, on which he reported that, within the past
ten years, he has lived in Hawai`I and Micronesia.

[Id. at ¶ 16;

id., Exh. 6.]
On May 9, 2012, an employee of General Information
Services, Inc. (“GIS”), LouAnn McKinney, contacted Plaintiff in
order to obtain information for a background check that
Accountemps had requested GIS to complete on its behalf (the “GIS
background check”).

[Pltf.’s CSOF, Decl. of Charles Siales

(“Siales Decl.”) at ¶ 2; id., Exh. A at 2-3;2 Supplemental Exh. A

2

Exhibit A is a copy of several emails, including one that
McKinney sent to Plaintiff with an attached document (the
“Micronesian Packet”) for him to complete and return to GIS for
purposes of the GIS background check. Exhibit A consists of
multiple email correspondences that are not consecutively
paginated. The page numbers in this Court’s citations to Exhibit
A refer to the pages as they appear in the cm/ecf system.
At the hearing on the Motion, Mr. Healy represented that
Exhibit A is an incomplete copy of the emails sent between
Plaintiff and McKinney. On October 30, 2013, Plaintiff filed a
document titled, “Supplemental Exhibits ‘B’ and ‘C’ to
Plaintiff’s Memorandum in Opposition to Defendant’s Motion”
(“Plaintiff’s Supplemental Exhibits”). [Dkt. no. 25.] The Court
notes that the exhibits attached to Plaintiff’s Supplemental
Exhibits are labeled “Exhibit A” and “Exhibit B,” which the Court
will refer to as “Supplemental Exhibit A” and “Supplemental
Exhibit B,” respectively, for clarity purposes. On November 8,
2013, Defendant filed its response to Plaintiff’s Supplemental
Exhibits. [Dkt. no. 26.]
The Court also notes that Plaintiff did not attach a
(continued...)
3

at 8.3]

On May 14, 2012, Lum sent an email to Accountemps

employee Bettea Eslava regarding the status of the drug tests and
background checks of several applicants, including Plaintiff.
[Lum Decl. at ¶ 15; id., Exh. 7 at 2.]

Eslava responded to Lum

that same day, stating, inter alia, that Plaintiff’s background
check was still in progress and that a specimen had been
collected from Plaintiff on May 12, 2012.
id., Exh. 7 at 1.]

[Lum Decl. at ¶ 15;

Eslava also told Lum that three other

applicants had cleared their drug tests, and that the background
check of one of the three was also still pending.
at 1.]

[Id., Exh. 7

On May 15, 2012, Lum emailed Eslava again, noting that

HECO had not yet received Accountemps’ results as to Plaintiff
and another applicant, and that applicants could not start work
unless their HECO background check came back negative.

[Id. at ¶

15; id., Exh. 7 at 1.]
According to Defendant, on May 15, 2013, HECO sent a
request to Background Information Services, Inc. (“BIS”) for an

2

(...continued)
declaration to authenticate Supplemental Exhibits A and B.
Supplemental Exhibit A appears to be another copy of the emails
sent between Plaintiff and McKinney. Where appropriate, the
Court will cite to both Exhibit A and Supplemental Exhibit A.
Supplemental Exhibit B appears to be a copy of the Micronesia
Packet.
3

Supplemental Exhibit A consists of multiple emails that
are not consecutively paginated. The page numbers in this
Court’s citations to Supplemental Exhibit A refer to the pages as
they appear in the cm/ecf system.
4

independent background check of Plaintiff (the “BIS background
check”).

[Lum Decl. ¶ 9.]

Plaintiff disputes this fact and

asserts that HECO actually contacted BIS on May 16, 2012.
[Pltf.’s CSOF at ¶ 10 (citing Lum Decl., Exh. 8); Def.’s CSOF at
¶ 10.]

In an email dated May 16, 2012, Lori Mac Arthur, a BIS

employee, provided Marlireen Aquino, HECO Staff Sergeant,
Security Division, the anticipated cost and duration of
conducting a background check of Plaintiff.

That same day,

Aquino emailed a response to Mac Arthur authorizing BIS to
proceed.

[Lum Decl. at ¶¶ 4, 16; id., Exh. 8.]

Plaintiff says

that GIS had completed and sent the results of the GIS background
check to Accountemps that same day.

[Siales Decl. at ¶¶ 2, 7;

id., Exh. A at 3; Supplemental Exh. A at 7-8.]

The parties do

not dispute that Plaintiff successfully passed the GIS background
check.

[Pltf.’s CSOF at ¶¶ 1-2; Reply, Decl. of Mahilani E.K.

Hiatt (“Hiatt Reply Decl.”), Exh. 17 at ¶ 1-2.4]

Plaintiff

states:
4.

I was informed that HECO was doing an
additional check because I was Mirconesian.
I was informed about this by Sarah Gaston.
. . . .

8.

I was told that despite the fact that I
passed [the GIS background check] on May 16,

4

Exhibit 17 is a chart comparing the material facts
asserted in Defendant’s CSOF with the asserted controverting
facts in Plaintiff’s CSOF. Exhibit 17 also contains Defendant’s
response to Plaintiff’s CSOF.
5

2012, HECO wanted to do its own background
check because I was from Mirconesia.
[Siales Decl. at ¶¶ 4, 8.]

According to Lum, the BIS background

check was meant to be in addition to the GIS background check
because “[i]t is extremely important and necessary for HECO to
perform its own due diligence.”

[Lum Decl. at ¶ 9.]

Plaintiff telephoned Lum on May 30, 2012, and Lum
informed Plaintiff that HECO “was still waiting on his background
check.”

[Id. at ¶ 19.]

Lum says that this was the only time

that he spoke to Plaintiff.

Lum notified Eslava and Elbe

Tsuchimoto, another Accountemps employee, that Plaintiff had
contacted him.

[Id.; id., Exh. 9 at 2.]

In his email to

Tsuchimoto, Lum stated that he hoped Plaintiff understood HECO’s
need to do a thorough background check.

Tsuchimoto confirmed

that Accountemps had explained to Plaintiff that the hold up was
due to the pending background check.

[Id. at ¶ 19; id., Exh. 9

at 1.]
On June 8, 2012, Lum wrote an email to Aquino asking
whether “there was any word on the background check” for
Plaintiff.

Aquino responded that the results were still pending.

[Id. at ¶ 20; id., Exh. 10.]

On June 13, 2012, Aquino contacted

Mac Arthur via email, inquiring about the status of Plaintiff’s
background check.

The next day, Mac Arthur informed Aquino that

she was checking on the results and would let Aquino know when

6

she heard back.

[Id. at ¶ 21; id., Exh. 11 at 1.5]

On June 15,

2012, Lum informed Eslava that HECO was still waiting on the
results of Plaintiff’s BIS background check.

Lum also informed

Eslava that the current temporary employees were able to keep up
HECO’s workload, and therefore HECO no longer needed to hire
Plaintiff.

[Id. at ¶ 22; id., Exh. 12.]
HECO did not receive notice that Plaintiff had

successfully passed the BIS background check until June 22, 2012.
[Id. at ¶ 23; id., Exh. 13.]

Although the results of the BIS

background check gave Plaintiff clearance to proceed, there were
no longer any vacant positions.

[Id. at ¶¶ 23-24.]

The Complaint alleges two causes of action:

violation

of Title VII of the Civil Rights Act of 1964 (“Title VII”)
(“Count I”); and intentional and/or negligent infliction of
emotional distress (“Count II”).
In addition to the instant action, Plaintiff also filed
a separate complaint against Accountemps (“Accountemps
Complaint”) in state court on November 15, 2012 (“Accountemps
Action”).6

Plaintiff asserts the same claims in both the instant

5

Exhibit 11 consists of multiple emails that are not
consecutively paginated. The page numbers in this Court’s
citations to Exhibit 11 are as they appear in the cm/ecf system.
6

Plaintiff filed the Accountemps Complaint against Robert
Half International, Inc., a Delaware corporation, doing business
as Accountemps. [Def.’s CSOF, Decl. of Mahilani E.K. Hiatt
(“Hiatt Decl.”), Exh. 14).] Accountemps removed the Accountemps
(continued...)
7

Complaint and the Accountemps Complaint.

[Hiatt Decl., Exh. 14.]

DISCUSSION
In the Motion, Defendant urges the Court to dismiss the
Complaint for failure to join a required party under Rule 19 of
the Federal Rules of Procedure, and for failure to state a claim
upon which relief can be granted.

[Mem. in Supp. of Motion at

10-17.]
Defendant asserts that Accountemps is a required party
under Rule 19(a) of the Federal Rules of Civil Procedure.
Defendant argues that Accountemps must be joined as a defendant
to the instant action, or the action must be dismissed.
11.]

[Id. at

The Court concludes that Accountemps is not a required

party under Rule 19(a).

See Fed. R. Civ. P. 19(a); Queen’s Med.

Ctr. v. Kaiser Found. Health Plan, Inc., Civ. No. 12-00565 ACKKSC, 2013 WL 2420907, at *27 (D. Hawai`I May 31, 2013) (quoting
E.E.O.C. v. Peabody Western Coal Co., 400 F.3d 774, 779-80 (9th
Cir. 2005) (discussing the Ninth Circuit’s three-step inquiry in
determining whether a case should be dismissed for failure to
join an indispensable party)).

The Court therefore DENIES the

Motion as to Defendant’s request for dismissal for failure to
join a required party.

6

(...continued)
Action to this district court on June 10, 2013. [Siales v.
Robert Half Int’l, Inc., et al., 13-CV-00290 DKW-KSC, Notice of
Removal, filed 6/10/13 (dkt. no. 1).]
8

Defendant also asserts that the Complaint fails to
state a claim upon which relief can be granted.

[Mem. in Supp.

of Motion at 14 (citing Fed. R. Civ. P. 12(b)(6)).]

In reviewing

the Complaint, the Court concludes that Plaintiff has pled
“sufficient factual matter ‘to state a claim to relief that is
plausible on its face.’”

See Billete v. Deutsche Bank Nat’l

Trust Co., Civil No. 13-00061 LEK-KSC, 2013 WL 2367834, at *5-6
(D. Hawai`I May 29, 2013 (quoting Bell Atl. Corp v. Twombly, 550
U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)).

The

Court therefore DENIES the Motion to the extent that it seeks
dismissal of the Complaint pursuant to Fed. R. Civ. P. 12(b)(6).
I.

Summary Judgment
Alternatively, Defendant argues that it is entitled to

summary judgment as to Count I and Count II.

The standard for

summary judgment is well-known to the parties and does not bear
repeating here.

See, e.g., Rodriguez v. Gen. Dynamics Armament &

Technical Prods., Inc., 696 F. Supp. 2d 1163, 1176 (D. Hawai`I
2010).
A.

Count I - Title VII
Plaintiff alleges that he was “wrongfully not hired,

and suffered discrimination in terms, conditions, and privileges
of his employment due to his race and national origin” in direct
violation of Title VII.

[Complaint at ¶¶ 10-11.]

9

Under Title VII, it is unlawful “to fail or refuse to
hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual’s race . . . or national origin[.]”

42 U.S.C.

§ 2000e-2(a)(1).
With respect to Title VII claims, the Court follows the
framework established in McDonnell Douglas Corp. v. Green, 411
U.S. 792 (1973).
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S. Ct. 1817, 36 L. Ed. 2d 668 (1973), provides a
“useful tool at the summary judgment stage” in
addressing Title VII claims. See McGinest v. GTE
Serv. Corp., 360 F.3d 1103, 1122 (9th Cir. 2004).
Under this framework, Plaintiff has the initial
burden to establish a prima facie case of
discrimination. E.E.O.C. v. Boeing Co., 577 F.3d
1044, 1049 (9th Cir. 2009) (citation and quotation
omitted). “The requisite degree of proof
necessary to establish a prima facie case for
Title VII . . . on summary judgment is minimal and
does not even need to rise to the level of a
preponderance of the evidence.” Cordova v. State
Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.
1997) (citation omitted).
After a plaintiff establishes a prima facie
showing of discrimination, the burden under the
McDonnell Douglas framework shifts to a defendant
to put forward a legitimate, non-discriminatory
reason for its actions. McDonnell Douglas Corp.,
411 U.S. at 802, 93 S. Ct. 1817. A defendant’s
burden to articulate some legitimate,
nondiscriminatory reason for the challenged action
is merely a burden of production, not persuasion.
Chuang v. Univ. of Cal. Davis Bd. of Trs., 225
F.3d 1115, 1123-24 (9th Cir. 2000). If a
defendant puts forth a legitimate,
nondiscriminatory reason, the burden shifts back
10

to the plaintiff to show that the given reason is
merely pretext for a discriminatory motive.
Boeing Co., 577 F.3d at 1049 (citation and
quotation omitted).
Hughes v. Mayoral, 721 F. Supp. 2d 947, 957 (D. Hawai`I 2010)
(alteration in Hughes).
“[A] plaintiff’s burden is much less at the prima facie
stage than at the pretext stage.”

Hawn v. Exec. Jet Mgmt., Inc.,

615 F.3d 1151, 1158 (9th Cir. 2010) (citations omitted).

That

is, “[c]ircumstantial evidence of pretext must be specific and
substantial[,]” see Becerril v. Pima Cnty. Assessor’s Office, 587
F.3d 1162, 1163 (9th Cir. 2009) (per curiam) (some alterations in
original) (citation and internal quotation marks omitted), and a
plaintiff must do more than merely deny the credibility of the
defendant’s proffered reason, see Schuler v. Chronicle Broad.
Co., 793 F.2d 1010, 1011 (9th Cir. 1986) (citation omitted).

“A

plaintiff can show pretext directly, by showing that
discrimination more likely motivated the employer, or indirectly,
by showing that the employer’s explanation is unworthy of
credence.”

Vasquez v. Cnty. of L.A., 349 F.3d 634, 641 (9th Cir.

2003) (footnote omitted); see also Coghlan v. Am. Seafoods Co.,
413 F.3d 1090, 1094–95 (9th Cir. 2005).

“Direct evidence

typically consists of clearly sexist, racist, or similarly
discriminatory statements or actions by the employer.”
413 F.3d at 1095 (citations omitted).

Coghlan,

“Circumstantial evidence,

in contrast, is evidence that requires an additional inferential
11

step to demonstrate discrimination.”

Id.

Despite this “useful tool” of the McDonnell
Douglas framework, there is nothing that “compels
the parties to invoke the McDonnell Douglas
presumption.” McGinest, 360 F.3d at 1122. “When
responding to a summary judgment motion . . . [the
plaintiff] may proceed by using the McDonnell
Douglas framework, or alternatively, may simply
produce direct or circumstantial evidence
demonstrating that a discriminatory reason more
likely than not motivated [the employer].”
Metoyer v. Chassman, 504 F.3d 919, 931 (9th Cir.
2007) (quoting McGinest, 360 F.3d at 1122). If
the plaintiff submits direct or circumstantial
evidence, “a triable issue as to the actual
motivation of the employer is created even if the
evidence is not substantial.” Id. (quoting Godwin
v. Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998)).
Hughes, 721 F. Supp. 2d at 957-58 (alterations in Hughes).
In the Motion, Defendant primarily relies on the
McDonnell Douglas burden-shifting framework, arguing that
Plaintiff is unable to establish a prima facie case of a Title
VII claim.

[Mem. in Supp. of Motion at 19-20 (citations

omitted).]

Plaintiff argues that the McDonnell Douglas framework

is inapplicable, and instead contends that he has produced direct
evidence of Defendant’s discriminatory motive.
13.]

[Mem. in Opp. at

Plaintiff, however, also goes on to argue that Defendant

must meet its burden of articulating a nondiscriminatory reason
for not hiring Plaintiff, and that he would be able to directly
show that Defendant’s given reason is pretextual.

[Id.]

as it is unclear whether or not Plaintiff is invoking the
McDonnell Douglas burden-shifting analysis, the Court will
12

Insofar

consider both approaches.
1.

Direct or Circumstantial Evidence
of a Discriminatory Motive

Plaintiff asserts that Gaston is an Accountemps
employee, and that she specifically told Plaintiff that HECO was
conducting the BIS background check because he is from
Mirconesia.

[Id. (citing Siales Decl. at ¶¶ 4, 8; id., Exh. A).]

Plaintiff argues that this information from Gaston is direct
evidence of Defendant’s discriminatory motive not to hire him.
[Id.]
The Court finds that Plaintiff has not provided
sufficient evidence to establish that a discriminatory reason
more likely than not motivated Defendant.

The only evidence that

Plaintiff cites for support are the emails written between
Plaintiff and McKinney, [Siales Decl., Exh. A; Supplemental Exh.
A,] regarding his GIS background check,7 and his own declaration.
The Court notes that Gaston does not appear to have been a
recipient of, or a participant in, these emails.

Furthermore,

Plaintiff has not proffered any evidence to support his
contention that Gaston is an employee of Accountemps.

Thus,

insofar as Plaintiff’s statements based on information received
from Gaston and an unnamed source are inadmissible hearsay, see

7

Exhibit A also contains an email that Plaintiff apparently
sent to the Equal Employment Opportunity Commission, to which
Plaintiff attached his email correspondence with McKinney.
[Siales Decl., Exh. A at 2.]
13

Fed. R. Evid. 802, Plaintiff has not offered any admissible
statements or actions to show that Defendant discriminated
against Plaintiff based on his race or national origin.
After careful review, the Court concludes that
Plaintiff has not offered any evidence that Defendant more than
likely had a discriminatory motive in not hiring him.

Plaintiff

has merely offered the uncorroborated allegations and selfserving statements in his own declaration.

The Court will now

consider the McDonnell Douglas analysis.
2.

McDonnell Douglas Burden-Shifting Analysis
a.

Prima Facie Case

Under the McDonnell Douglas framework, Plaintiff must
first establish a prima facie case of discrimination.

The

requisite elements of Plaintiff’s discrimination claim are: (1)
he belongs to a protected class; (2) he was qualified for his
position; (3) he was subject to an adverse employment action; and
(4) other similarly-situated individuals outside his protected
class were treated more favorably.

See Walker v. Potter, 629 F.

Supp. 2d 1148, 1164 (D. Hawai`I 2009) (citations omitted); see
also Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007)
(citation omitted); Cornwell v. Electra Cent. Credit Union, 439
F.3d 1018, 1028 (9th Cir. 2006) (citation and footnote omitted).
In his memorandum in opposition, Plaintiff neither
discusses the elements of a discrimination claim under Title VII,
14

nor points to any evidence in the record that would support his
claim.

Instead, Plaintiff argues that the “McDonnell Douglas

framework for establishing a prima facie claim of discrimination
is not applicable to this case[.]”

[Mem. in Opp. at 13.]

The

Court concludes that, even viewing the facts in the light most
favorable to Plaintiff, he is be unable to establish a prima
facie case for discrimination based on his race or national
origin.

The Court notes that, even if the Court were to find

that Plaintiff established a prima facie case, Plaintiff has not
offered evidence that creates a genuine issue of material fact as
to Defendant’s nondiscriminatory reason for not hiring Plaintiff.
b.

Legitimate, Nondiscriminatory Reason

Assuming, arguendo, that Plaintiff is able to establish
a prima facie claim of discrimination, the burden shifts to
Defendant to identify a legitimate, nondiscriminatory reason for
not hiring Plaintiff.

Defendant asserts that its reason for not

hiring Plaintiff is that he did not timely pass the BIS
background check.

According to Defendant, HECO was within its

rights under its contract with Accountemps (the “Agreement”) to
order an independent background check on Plaintiff through BIS.
[Mem. in Supp. of Motion at 21; Lum Decl., Exh. 2 at 1.]

The

Agreement expressly states, “HECO reserves the right to conduct
its own criminal conviction checks for any persons provided by
[Accountemps] as HECO may deem necessary and/or appropriate,

15

under the circumstances.”
BIS on June 22, 2013.

HECO received Plaintiff’s results from

Lum had even informed Eslava that none of

the Accountemps applicants could start “unless their HECO
background check [came] back negative.”
1.]

[Lum Decl., Exh. 7 at

Although Plaintiff successfully passed the BIS background

check, Defendant contends that there were no longer any vacant
positions by that date.

[Mem. in Supp. of Motion at 22; Lum

Decl. at ¶¶ 23-24.]
Furthermore, Defendant asserts that it conducts
independent background checks on applicants, in addition to those
done by temporary employment agencies affiliated with HECO, for
its own security purposes.

[Mem. in Supp. of Motion at 5-6

(citing Lum Decl. at ¶ 9).]

Lum states that, previously,

although a temporary employment agency had cleared an applicant,
HECO’s independent background check revealed that the applicant
had a criminal record, including a conviction for fraud and
forgery.

[Lum Decl. at ¶ 9.]

Considering that this applicant,

if hired, would have had access to HECO customers’ personal
information, Defendant contends that it is “important and
necessary for HECO to perform its own due diligence.”
Supp. of Motion at 5 (citing Lum Decl. at ¶ 9).]

[Mem. in

The Court finds

that Defendant has articulated a legitimate, nondiscriminatory
reason for not hiring Plaintiff.

16

c.

Pretext

The burden then shifts back to Plaintiff to establish
that Defendant’s nondiscriminatory reason for his non-selection
was pretextual.

According to Plaintiff, Defendant only initiated

the BIS background check after learning that Plaintiff is from
Mirconesia.

[Mem. in Opp. at 14 (citing Lum Decl., Exh. 8).]

Plaintiff contends that the BIS background check caused delays in
the hiring process which HECO used as a pretextual reason for not
hiring him.

[Id.]

Plaintiff contends that the following

evidence establishes pretext:

his email correspondence with

McKinney confirming that Accountemps informed HECO that Plaintiff
had successfully passed the GIS background check on May 16, 2012;
[Siales Decl. at ¶ 2; id., Exh. A; Supplemental Exh. A at 8;]
Gaston informed Plaintiff that HECO required an additional
background check because he is from Micronesia; [Siales Decl. at
¶¶ 4, 8;] and, on May 16, 2012, only after having learned that
Plaintiff is Micronesia, HECO initiated the BIS background check
on Plaintiff [Lum Decl., Exh. 8].

[Mem. in Opp. at 14-16.]

Defendant does not dispute that Plaintiff successfully
passed the GIS background check.
¶¶ 1-2.]

[Hiatt Reply Decl., Exh. 17 at

Thus, aside from his own statements, Plaintiff’s only

evidence in support of his argument is the exchange of emails in
which HECO authorized BIS to conduct a background check on
Plaintiff.

Mac Arthur’s email to Aquino notes that Plaintiff

17

listed an address for Micronesia on his application.

Mac Arthur

then provides the anticipated cost and duration of completing the
background check of Plaintiff, and asks whether HECO “would like
to add this search.”

[Lum Decl., Exh. 8.]

In her response,

Aquino authorizes BIS to “proceed with the Micronesia
International Criminal search for [Plaintiff].”

[Id.]

First, Plaintiff does not establish that discriminatory
purposes more than likely motivated HECO in not hiring him.

The

emails between Aquino and Mac Arthur do not contain clearly
racist or similarly discriminatory statements or actions by HECO.
Nor are the emails specific and substantial evidence that
Defendant had a discriminatory motive in ordering the BIS
background check.

The Court therefore finds that Plaintiff is

unable to directly show pretext on the part of Defendant.
Second, Plaintiff also fails to establish that
Defendant’s explanation is unworthy of credence.

According to

Plaintiff, as of May 16, 2012, the date on which GIS sent the
results of the GIS background check to Accountemps, the temporary
position at HECO had not yet been filled.

Plaintiff argues that

the position was still open when HECO received the GIS background
check results, and only requested the BIS background check as a
pretextual reason to delay hiring him.
(citing Lum Decl., Exh 8).]

18

[Mem. in Opp. at 15-16

Plaintiff attempts to controvert Defendant’s assertion
that HECO requested the BIS background check on May 15, 2012 by
pointing out that the emails between Aquino and Mac Arthur are
dated May 16, 2012.
Exh. 8).]

[Plft.’s CSOF at ¶ 10 (citing Lum Decl.,

Plaintiff asserts that HECO waited over a week to

request the BIS background check, and that Accountemps had
already received notice that Plaintiff passed the GIS background
check on May 16, 2012.

[Id.]

The Court acknowledges Plaintiff’s

point that the emails between Aquino and Mac Arthur are dated
May 16, 2012.

Nevertheless, insofar as the parties do not

dispute that Aquino, on behalf of HECO, gave the final
authorization to proceed with the background check on May 16,
2012, [Def.’s CSOF at ¶ 12,] whether Defendant made its initial
request for the BIS background check on May 15 or May 16 is not
an issue of material fact.

Furthermore, the Court notes that

Plaintiff cannot establish the date on which HECO received the
results of the GIS background check from Accountemps.
The Court notes that it is curious that Defendant would
incur additional expenses to have an independent background check
conducted on Plaintiff, especially when Defendant was already
incurring the expense for the initial GIS background check.

[Lum

Decl., Exh. 2 at 1 (“Costs incurred by [Accountemps] to conduct
background checks and drug testing will be added as pass through
costs to be assumed by HECO.”).]

19

Nevertheless, nothing in the

timing or information being sought suggests that HECO had an
illegitimate purpose for not hiring Plaintiff.
Accountemps first contacted Plaintiff regarding the
temporary position at HECO in May 2012, [Complaint at ¶ 8.A.,]
and he successfully completed the phase one tests on May 7, 2012
[Lum Decl. at ¶ 13].

HECO authorized the BIS background check

for Plaintiff on May 16, 2012.

[Id. at ¶ 16; id., Exh. 8.]

The

timing of events with respect to the BIS background check was
unfortunate for Plaintiff.

Nevertheless, the lapse of time

between Plaintiff’s first contact with Accountemps and HECO’s
authorization to BIS is insufficient to rebut Defendant’s
legitimate, nondiscriminatory reason for not hiring Plaintiff.
The Court therefore concludes that Plaintiff has failed to create
a genuine issue of material fact as to HECO’s actual motivation
for not hiring Plaintiff.

Thus, even if Plaintiff had been able

to establish a prima facie claim for discrimination under Title
VII, the Court would ultimately grant the Motion for summary
judgment as to Count I.

Accordingly, the Court GRANTS the Motion

for summary judgment as to Count I.
A.

Count II - Intentional and/or Negligent
Infliction of Emotional Distress
Count II of the Complaint asserts intentional

infliction of emotional distress (“IIED”) and/or negligent
infliction of emotional distress (“NIED”) against Defendant.
Complaint alleges that, as a direct and proximate result of
20

The

Defendant’s discriminatory actions, Plaintiff continues to suffer
emotional and/or mental distress.

[Complaint at ¶ 17.]

Plaintiff further alleges that Defendant’s actions “are
oppressive, outrageous, and otherwise characterized by
aggravating the circumstances sufficient to justify the
imposition of punitive damages.”
1.

[Id. at ¶ 18.]

IIED

“The elements of the tort of intentional infliction of
emotional distress 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 Haw., 102 Hawai`i 92, 106-07, 73 P.3d 46, 60-61
(2003) (adopting IIED standard from Restatement (Second) of
Torts).
In explaining the type of “outrageous” conduct
that makes a claim for intentional infliction of
emotional distress actionable, the Restatement
(Second) of Torts states:
It has not been enough that the defendant has
acted with an intent which is tortious or
even criminal, or that he has intended to
inflict emotional distress, or even that his
conduct has been characterized by “malice,”
or a degree of aggravation which would
entitle the plaintiff to punitive damages for
another tort. Liability has been found only
where the conduct has been so outrageous in
character, and so extreme in degree, as to go
beyond all bounds of decency, and to be
regarded as atrocious, and utterly
intolerable in a civilized community.
Generally, the case is one in which the
recitation of the facts to an average member
21

of the community would arouse his resentment
against the actor, and lead him to exclaim,
“Outrageous!”
Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., Inc., 76 Hawai`i 454,
465 n.12, 879 P.2d 1037, 1048 n.12 (1994) (quoting Restatement
(Second) of Torts § 46, cmt. d. (1965)).

“The question whether

the actions of the alleged tortfeasor are . . . outrageous is for
the court in the first instance, although where reasonable
persons may differ on that question it should be left to the
jury.”

Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121,

1127 (D. Hawai`I 2004) (citing Shoppe v. Gucci Am., Inc., 94
Hawai`I 368, 387, 14 P.3d 1049, 1068 (2000), cert. denied, 2010
WL 2625261 (Hawai`I June 29, 2010)).
Even when viewed in the light most favorable to
Plaintiff, the Court finds that the evidence does not demonstrate
that Defendant’s conduct that was outrageous, or beyond all
bounds of decency.

Nor has Plaintiff demonstrated a genuine

issue of material fact with respect to this claim.
2.

NIED

The elements of a claim for NIED are:

(1) that the

defendant engaged in negligent conduct; (2) that the plaintiff
suffered serious emotional distress; and (3) that such negligent
conduct of the defendant was a legal cause of the serious
emotional distress.

Tran v. State Farm Mut. Auto. Ins. Co, 999

F. Supp. 1369, 1375 (D. Hawai`I 1998).

22

A cognizable claim for

NIED under Hawai`I law also “requires physical injury to either a
person or property,” see Calleon v. Miyagi, 76 Hawai`I 310, 320,
876 P.2d 1278 (1994), or a mental illness, see Haw. Rev. Stat. §
663-8.9.

Dowkin v. Honolulu Police Dep’t, Civ. No. 10-00087 SOM-

LEK, 2010 WL 4961135, at *9 (D. Hawai`I Nov. 30, 2010).

Duty and

breach are essential elements of a negligence claim under Hawai`I
law.

See Cho v. Hawai`I, 115 Hawai`I 373, 379 n.11, 168 P.3d 17,

23, n.11 (2007) (“It is well-established that, in order for a
plaintiff to prevail on a negligence claim, the plaintiff is
required to prove all four of the necessary elements of
negligence:

(1) duty; (2) breach of duty; (3) causation; and (4)

damages.” (citation omitted)).
The Court finds that Plaintiff has failed to identify
any evidence of injury to his person or property or a diagnosed
mental illness.

The Court therefore GRANTS Defendant’s Motion

for summary judgment with respect to Count II.
C.

Attorneys’ Fees and Costs
Defendant argues that, pursuant to 42 U.S.C. § 2000e-

5(k)8 and Haw. Rev. Stat. § 604-14.5, the Court should award its

8

In its Motion, Defendant argues that it is entitled to
attorneys’ fees and costs under 42 U.S.C. § 1988. [Mem. in Supp.
of Motion at 24.] The Court notes that, insofar as Count I is a
claim under Title VII, and Count II is based on state law, § 1988
is inapplicable to the instant action. Where an action is
asserted under Title VII, a party may seek attorneys’ fees under
§ 2000e-5(k). Thus, the Court construes Defendant’s request as
one pursuant to § 2000e-5(k), as set forth infra in Discussion
(continued...)
23

attorneys’ fees and costs.

[Mem. in Supp. of Motion at 24.]

Defendant notes that Plaintiff “knew of two possible defendants
in this matter and nevertheless filed two separate complaints,
each with contradictory allegations.”

[Id. at 25.]

Defendant

also notes that it provided written notice to Plaintiff’s
counsel, dated August 29, 2013, of its intention to file a motion
to dismiss the Complaint, and that Defendant would seek its
attorneys’ fees if Plaintiff did not dismiss the instant action.
[Id. (citing Hiatt Decl., Exh. 15).]
1.

42 U.S.C. § 2000e-5(k)

42 U.S.C. § 2000e-5(k) states, in relevant part:

“In

any action or proceeding under this subchapter the court, in its
discretion, may allow the prevailing party, other than the
Commission or the United States, a reasonable attorney’s fee
(including expert fees) as part of the costs . . . .”

This

district court has stated:
The United States Supreme court had established
the following guidelines for the award of
attorneys’ fees to a prevailing defendant under
§ 2000e-5(k):
a district court may in its discretion award
attorney’s fees to a prevailing defendant in
a Title VII case upon a finding that the
plaintiff’s action was frivolous,
unreasonable, or without foundation, even
though not brought in subjective bad faith.

8

(...continued)

section III.A.
24

In applying these criteria, it is important
that a district court resist the
understandable temptation to engage in post
hoc reasoning by concluding that, because a
plaintiff did not ultimately prevail, his
action must have been unreasonable or without
foundation. This kind of hindsight logic
could discourage all but the most airtight
claims, for seldom can a prospective
plaintiff be sure of ultimate success.
Christiansburg Garment Co. v. E.E.O.C., 434 U.S.
412, 421-22 (1978). In light of the Congressional
intent to “promote the vigorous enforcement
provisions of Title VII, a district court must
exercise caution in awarding fees to a prevailing
defendant. . . .” Warren v. City of Carlsbad, 58
F.3d 439, 444 (9th Cir. 1995) (citations and
quotation marks omitted) (citation and quotation
marks omitted) [sic]. Courts therefore should
only award fees to a prevailing defendant in a
Title VII action under “exceptional
circumstances.” See Saman v. Robbins, 173 F.3d
1150, 1157 (9th Cir. 1999).
Henderson v. Alexander & Baldwin, Inc., Civil No. 07-00101 DAELEK, 2008 WL 2588712, at *4 (D. Hawai`I June 30, 2008).
Furthermore,
“[a]lthough a defendant has prevailed in a civil
rights case and a plaintiff has not met its prima
facie burden, it does not necessarily follow that
attorney’s fees should be awarded to the
defendant.[”] Berry v. E.I. Dupont de Nemours and
Co., 635 F. Supp. 262, 266 (D. Del. 1986).
Indeed, just “[b]ecause a plaintiff has not met a
prima facie burden and has not presented enough
evidence to show discriminatory treatment, such
failure does not lead to a finding of frivolity or
groundlessness.” Id. Whether or not a plaintiff
has established a prima facie case is but one fact
in determining frivolity or groundlessness. Id.
Other factors for the court’s consideration
include offers of settlement by a defendant and
whether the court dismissed the case prior to
trial. Id. (citing Sullivan v. School Bd. Of
25

Pinellas County, 773 F.2d 1182, 1189 (11th Cir.
1985)).
Kaalakea v. Hawaii Health Sys. Corp., Civil No. 07-00177DAE-KSC,
2008 WL 4809474, at *2 (D. Hawai`I Nov. 4, 2008) (some
alterations in original).
Although the Court herein concludes that Plaintiff did
not establish a prima facie case of discrimination under Title
VII, Defendant is not automatically entitled to its attorneys’
fees and costs.

See id. (citation omitted).

Defendant must

establish that Plaintiff’s Title VII claim was so frivolous or
groundless so that Defendant is entitled to an award of
attorneys’ fees under § 2000e-5(k).

First, the Court does not

agree with Defendant that the fact that Plaintiff filed a
separate complaint against Accountemps indicates that his claims
in the instant action are frivolous.

Second, Defendant’s letter

to Plaintiff’s counsel was not a settlement offer, and only
served as notice to Plaintiff that Defendant would seek its
attorneys’ fees if he did not dismiss the action.

Thus, the

Court does not conclude that Plaintiff’s Title VII claim was
frivolous or groundless, or that it was brought in bad faith.
Accordingly, the Motion is DENIED with respect to Defendant’s
request for an award of attorneys’ fees and costs under § 2000e5(k).

26

2.

Haw. Rev. Stat. § 607-14.5

Haw. Rev. Stat. § 607-14.5(a) and (b) provide, in
relevant part:
(a) In any civil action in this State where a
party seeks money damages or injunctive relief, or
both, against another party, and the case is
subsequently decided, the court may, as it deems
just, assess, against either party, whether or not
the party was a prevailing party, and enter as
part of its order, for which execution may issue,
a reasonable sum of attorneys’ fees and costs, in
an amount to be determined by the court upon a
specific finding that all or a portion of the
party’s claim or defense was frivolous as provided
in subsection (b).
(b)
In determining the award of attorneys’ fees
and costs and the amounts to be awarded, the court
must find in writing that all or a portion of the
claims or defenses made by the party are frivolous
and are not reasonably supported by the facts and
the law in the civil action. . . .
. . . .
A “frivolous” claim is one that is “‘so manifestly and
palpably without merit, so as to indicate bad faith on the
pleader’s part such that argument in court is not required.’”
Canalez v. Bob’s Appliance Serv. Ctr., Inc., 89 Hawai`I 292, 300,
972 P.2d 297, 303 (1999) (quoting Coll v. McCarthy, 72 Haw. 20,
29, 804 P.2d 881, 887 (1991)).
The Court also herein grants Defendant’s Motion with
respect to Count II.

Defendant, however, has failed to establish

that Plaintiff’s IIED and NIED claims are so manifestly and
palpably without merit so as to render them frivolous.

27

Thus, the

Court DENIES the Motion to the extent that it seeks an award of
attorneys’ fees and costs pursuant to Haw. Rev. Stat. § 604-14.5.
Finally, insofar as this Court GRANTS Defendant’s
Motion to the extent that it seeks summary judgment as to Count I
and Count II, and DENIES Defendant’s request for attorneys’ fees
and costs, the Court will not address the remaining issues in the
Motion.
CONCLUSION
On the basis of the foregoing, Defendant’s Motion to
Dismiss Complaint, Filed February 26, 2013 in the Circuit Court
of the First Circuit, or in the Alternative for Summary Judgment
and for Attorneys’ Fees and Costs, filed August 30, 2013, is
HEREBY GRANTED IN PART AND DENIED IN PART.
The Motion is GRANTED to the extent that this Court
GRANTS summary judgment in favor of Defendant as to Count I and
Count II.

The Motion is DENIED, however, with respect to

Defendant’s request to dismiss the Complaint and Defendant’s
request for attorneys’ fees and costs.

28

IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 27, 2013.

/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge

CHARLES SIALES VS. HAWAII ELECTRIC COMPANY, INC.; CIVIL 13-00413
LEK-KSC; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S
MOTION TO DISMISS COMPLAINT, FILED FEBRUARY 26, 2013 IN THE
CIRCUIT COURT OF THE FIRST CIRCUIT, OR IN THE ALTERNATIVE FOR
SUMMARY JUDGMENT AND FOR ATTORNEYS’ FEES AND COSTS

29