Decampo v. OS Restaurant Services, LLC et al
Filing
23
ORDER GRANTING DEFENDANTS' MOTION TO DISMISS re 6 , 22 - Signed by JUDGE ALAN C KAY on 4/29/2014. "Count I of the Complaint is DISMISSED WITHOUT PREJUDICE to the extent Plaintiff bases the claim on allegations of a hostile work environment or constructive discharge, or on events that occurred prior to March 3, 2012. Count II of the Complaint is DISMISSED WITHOUT PREJUDICE in its entirety. Count III of the Complaint is DISMISSED WITHOUT PREJUDICE to the exten t it is premised upon events that occurred prior to July 1, 2012, and to the extent Plaintiff seeks to bring a claim based on religious, disability, or national origin discrimination. Plaintiff must file any amended complaint within thirty days of the entry of this Order. Any amended complaint must correct all the deficiencies noted in this Order or Plaintiff's claims will be dismissed with prejudice. " (emt, )CERTIFICATE OF SERVICEP articipants 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
WILMA JEANNA DECAMPO,
Plaintiff,
v.
OS RESTAURANT SERVICES, LLC, a
Florida Limited Liability
Company; OUTBACK STEAKHOUSE OF
FLORIDA, LLC, a Florida Limited
Liability Company,
Defendants.
) Civ. No. 14-00092 ACK-BMK
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ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS
For the following reasons, the Court hereby GRANTS
Defendants’ Motion to Dismiss for Failure to State a Claim. Count
I of the Complaint is DISMISSED WITHOUT PREJUDICE to the extent
Plaintiff bases the claim on allegations of a hostile work
environment, retaliation under the ADEA, or constructive
discharge, or on events that occurred prior to March 3, 2012.
Count II of the Complaint is DISMISSED WITHOUT PREJUDICE in its
entirety. Count III of the Complaint is DISMISSED WITHOUT
PREJUDICE to the extent it is premised upon events that occurred
prior to July 1, 2012, and to the extent Plaintiff seeks to bring
a claim based on religious, disability, or national origin
discrimination.
PROCEDURAL BACKGROUND
On January 15, 2014, Plaintiff Wilma J. Decampo
(“Plaintiff”) filed her Complaint against Defendants OS
Restaurant Services, LLC (“OS”) and Outback Steakhouse of
Florida, LLC (“Outback”; together, “Defendants”) in the Circuit
Court of the First Circuit, State of Hawaii. (Doc. No. 1, Ex. A.)
Defendants filed a notice of removal on February 26, 2014, citing
federal question jurisdiction and diversity of the parties. (Doc.
No. 1.)
On March 5, 2014, Defendants filed the instant Motion
to Dismiss for Failure to State a Claim. (Doc. No. 6.) Plaintiff
filed her opposition to the motion on April 15, 2014.1/ (Doc. No.
16.) Defendants filed a reply on April 17, 2014. (Doc. No. 18.) A
hearing on the motion was held on April 28, 2014.
FACTUAL BACKGROUND2/
Plaintiff is a 78 year old woman, originally born in
Australia, who resides in Hawaii. (Compl. ¶ 2.) Plaintiff was
employed as a hostess at an Outback Steakhouse restaurant owned
by Outback and managed by OS in Kailua-Kona, Hawaii, from
1/
The Court will consider Plaintiff’s opposition,
notwithstanding the fact that it was untimely filed.
2/
The facts as recited in this order are for the purpose of
disposing of the current [motion(s)/appeal(s)/issue(s)] and are
not to be construed as findings of fact that the parties may rely
on in future proceedings.
2
November 2006 to January 2011.3/ (Id. ¶¶ 2, 4, 8, 19-20.)
Plaintiff primarily worked at the front of the restaurant,
greeting customers, planning seating at tables, and showing
customers to their tables; she also occasionally performed duties
related to clean up and re-stocking of server areas. (Id. ¶ 21.)
Plaintiff alleges that she was singled out by other
Kona Outback employees and managers who subjected her to unlawful
discriminatory and harassing conduct and intimidation because of
her age. (Id. ¶ 22.) Specifically, Plaintiff alleges that, on May
6, 2009, Plaintiff wrote a letter to Matthew Brown, “Managing
Partner” for the Kona Outback, documenting an incident of agerelated harassment during which Plaintiff’s “managers” told her
not to speak with customers at tables because they “did not want
to see the likes of her when on vacation.” (Id. ¶ 23.) Plaintiff
states that Defendants failed to investigate her complaint, and
that other employees subsequently subjected her to similar verbal
harassment, in addition to complaining about having to share tips
with Plaintiff. (Id. ¶¶ 24, 27.) Plaintiff alleges that her
fellow employees did not similarly complain about having to share
3/
Plaintiff’s Complaint is somewhat inconsistent regarding
the relevant dates: Plaintiff states at one point that she was
employed until February 2011, (id. ¶ 2), at another that she was
employed until January 2010, (id. ¶ 20), and in a third place
that she resigned in January 2011, (id. ¶ 32.) Based on the
Complaint as a whole, as well as the parties’ filings, the Court
believes that the correct date of her resignation is January
2011.
3
tips with younger employees. (Id. ¶ 27.) Plaintiff alleges that
Jaqui Grow (apparently either a fellow employee or a manager)
told Plaintiff to “just quit” on several occasions when Plaintiff
complained of this harassment. (Id. ¶¶ 25-26, 28.)
In December 2010, Plaintiff wrote to Tim Madonna
(described by Plaintiff as “Joint Venture Partner for Hawaii
operations”) to ask for assistance regarding the harassment she
was experiencing at work; Plaintiff alleges that Madonna took no
action to address her repeated complaints and no employees ever
faced disciplinary measures as a result of the incidents of
harassment. (Id. ¶¶ 29-31.) Plaintiff states that, as a result of
Defendants’ failure to address her repeated complaints, she was
forced to resign from her job in January of 2011. (Id. ¶ 32.)
Plaintiff further alleges that, after she left her job,
Defendants hired several new hostesses, all of whom were “much
younger” than Plaintiff. (Id. ¶ 33.)
In June of 2012, Plaintiff contacted Brown and asked
for her job back. (Id. ¶ 35.) Plaintiff states that Brown told
her that he would be willing to re-hire her; she therefore
applied for a position of hostess on June 20, 2012. (Id. ¶¶ 3536.) Plaintiff alleges that she and Brown had a phone
conversation in mid-July of 2012 during which Plaintiff told
Brown that she “had passed the test for the hostess/customer
service job position and they discussed the required uniform and
4
other details”; Brown gave no indication that Plaintiff would not
be hired. (Id. ¶ 37.) On July 27, 2012, however, Brown called
Plaintiff and informed her that, during a staff meeting, the
staff had told Brown that they did not want Plaintiff to be rehired. (Id. ¶ 38.) Plaintiff alleges that Brown hired new
hostesses in February and November of 2012, but did not hire
Plaintiff in July of 2012. (Id. ¶ 39.)
On December 28, 2012, Plaintiff filed administrative
charges of discrimination on the basis of age against Defendants
with the United States Equal Employment Opportunity Commission
(“EEOC”) and the Hawaii Civil Rights Commission (“HCRC”). (Id.
¶ 14.) On October 17, 2013, the HCRC issued a Notice of Dismissal
and Right to Sue letter. (Id. ¶ 16.)
Plaintiff brings the following claims in her Complaint:
(1) age discrimination, hostile work environment, and
constructive discharge in violation of unspecified provisions in
the Age Discrimination in Employment Act (“ADEA”) (Count I); (2)
retaliation “in violation of the ADEA Section 1981” (Count II);
and (3) age discrimination and possibly religious and national
origin discrimination in violation of Hawaii Revised Statutes
Chapter 378 (Count III). (Id. ¶¶ 45-63.) Plaintiff seeks
declaratory and monetary relief. (Id. ¶¶ A-F.)
STANDARD
Rule 12(b)(6) authorizes the Court to dismiss a
5
complaint that fails “to state a claim upon which relief can be
granted.” The Court may dismiss a complaint either because it
lacks a cognizable legal theory or because it lacks sufficient
factual allegations to support a cognizable legal theory.
Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir.
2011).
On a Rule 12(b)(6) motion to dismiss, the Court accepts
all well-pleaded factual allegations as true and construes them
in the light most favorable to the nonmoving party. Sateriale v.
R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012)
(citation omitted). The Court may not dismiss a “complaint
containing allegations that, if proven, present a winning
case . . . no matter how unlikely such winning outcome may appear
to the district court.” Balderas v. Countrywide Bank, N.A., 664
F.3d 787, 791 (9th Cir. 2011).
Nonetheless, “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.” Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011)
(citations omitted). “[O]nly pleaded facts, as opposed to legal
conclusions, are entitled to assumption of the truth.” United
States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011)
(citation omitted). A “formulaic recitation of the elements of a
cause of action” will not defeat a motion to dismiss. Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal citations
6
and quotations omitted). The complaint must contain sufficient
factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Twombly, 550 U.S. at 570). “The plausibility
standard . . . asks for more than a sheer possibility that a
defendant has acted unlawfully. Where a complaint pleads facts
that are ‘merely consistent with’ a defendant’s liability, it
‘stops short of the line between possibility and plausibility of
entitlement to relief.’” Iqbal, 556 U.S. at 678 (quoting Twombly,
550 U.S. at 556-57). Moreover, the Court need not accept as true
allegations that contradict the complaint’s exhibits, documents
incorporated by reference, or matters properly subject to
judicial notice. Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 550, 588
(9th Cir. 2008); Sprewell v. Golden State Warriors, 255 F.3d 979,
988 (9th Cir. 2001).
The Court should grant leave to amend “even if no
request to amend the pleading was made, unless it determines that
the pleading could not be cured by the allegation of other
facts.” OSU Student Alliance v. Ray, 699 F.3d 1053, 1079 (9th
Cir. 2012). Leave to amend “is properly denied, however, if
amendment would be futile.” Carrico v. City & County of S.F., 656
F.3d 1002, 1008 (9th Cir. 2011).
DISCUSSION
In the instant motion, Defendants seek dismissal of the
7
following claims in Plaintiff’s Complaint: (1) any federal claims
based on conduct that occurred prior to March 3, 2012 (300 days
prior to the filing of her EEOC charge), and any state claims
based on conduct that occurred prior to July 1, 2012 (180 days
prior the filing of her HCRC charge); (2) Count II of the
Complaint, Plaintiff’s retaliation claim; and (3) any claims
Plaintiff may be making based on national origin or religious
discrimination. (Mot. at 1-2.)
I.
Judicial Notice of Plaintiff’s HCRC Charge of Discrimination
As an initial matter, Defendants ask the Court to take
judicial notice of the December 28, 2012 Charge of Discrimination
filed by Plaintiff with the HCRC. (See Mot. Ex. A (HCRC Charge).)
Plaintiff does not appear to oppose this request. (See generally
Opp’n.)
“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)). Judicial notice is generally
appropriate for the records of administrative bodies. Id. Because
the HCRC charge is a matter of public record, the Court grants
8
Defendants’ request to take judicial notice of that document. See
Onodera v. Kuhio Motors Inc., Civ. No. 13-00044 DKW-RLP, 2013 WL
4511273, at *2 (D. Haw. Aug. 23, 2013).
II. Exhaustion
Plaintiff brings two federal claims under the ADEA, and
one state law claim pursuant to Hawaii Revised Statutes Chapter
378. Both the ADEA and section 378-2 of the Hawaii Revised
Statutes require a plaintiff to exhaust her administrative
remedies before filing a civil action against an employer for
alleged discrimination.
A.
Plaintiff’s ADEA Claims
For the Court to have federal subject matter
jurisdiction over Plaintiff’s ADEA claims, Plaintiff must have
first exhausted her EEOC administrative remedies with respect to
those claims. See EEOC v. Farmer Bros. Co., 31 F.3d 891, 899 (9th
Cir. 1994).4/ Plaintiff brings two claims under the ADEA: (1) age
discrimination premised upon claims of constructive discharge,
hostile work environment, and failure to hire, and (2)
retaliation.5/ (Compl. ¶¶ 45-55.) The ADEA requires exhaustion of
4/
This case, as well as a number of other cases cited in
this order, is a Title VII rather than ADEA case; however, courts
generally apply the same basic standards to both ADEA and Title
VII cases. See Albano v. Schering-Plough Corp., 912 F.2d 384, 386
n.1 (9th Cir. 1990).
5/
As discussed more fully below, it is somewhat unclear
whether Plaintiff is bringing her retaliation claim pursuant to
(continued...)
9
all claims by nonfederal employees. See 29 U.S.C. § 626(d)(1);
Limongelli v. Postmaster General of United States, 707 F.2d 368,
372 (9th Cir. 1983)(per curiam) (“This incident was not
encompassed in his earlier EEOC charge. He did not exhaust his
administrative remedies under ADEA and therefore cannot look to
the courts for relief.”)
Plaintiff filed her administrative charge with the EEOC
on December 28, 2012.6/ In the EEOC charge Plaintiff states that
she was denied the hostess position at the Kona Outback on July
27, 2012 because of her age (77 years at the time) and
“ancestry/national origin” (Australian). (Mot., Ex. A.) It
therefore appears that, on its face, the administrative charge
only encompasses Plaintiff’s claim for failure to hire, and does
not address Plaintiff’s other claims for constructive discharge,
hostile work environment, or retaliation.
Nevertheless, Plaintiff argues that her claims based
upon the alleged harassment and retaliation7/ that occurred
5/
(...continued)
the ADEA or some other law. In Count II of the Complaint,
Plaintiff states that Defendants retaliated against her “in
violation of the ADEA Section 1981.” (Compl. ¶ 53.) There is,
however, no section 1981 in the ADEA.
6/
Under the dual filing system used by Hawaii, Plaintiff
was deemed to have filed identical charges with the EEOC and the
HCRC on the same date. (See Opp’n at 8; Mot., Ex. A at 1.)
7/
As discussed more fully below, it is unclear from the
face of the Complaint whether Plaintiff is bringing her
(continued...)
10
during her prior employment with Outback, as well as the alleged
constructive discharge in 2011, should be deemed to fall within
the scope of her December 28, 2012 charge. (Opp’n at 4-5.)
“Allegations of discrimination not included in the plaintiff’s
administrative charge may not be considered by a federal court
unless the new claims are like or reasonably related to the
allegations contained in the EEOC charge.” B.K.B. v. Maui Police
Dep’t, 276 F.3d 1091, 1100 (9th Cir. 2002) (internal quotations
omitted). In determining whether Plaintiff has exhausted
allegations that she did not specify in her administrative
charge,
it is appropriate to consider such factors as the
alleged basis of the discrimination, dates of
discriminatory acts specified within the charge,
perpetrators of discrimination named in the
charge, and any locations at which discrimination
is alleged to have occurred. In addition, the
court should consider plaintiff’s civil claims to
be reasonably related to allegations in the charge
to the extent that those claims are consistent
with the plaintiff’s original theory of the case.
Id. Here, the alleged basis of the discrimination (Plaintiff’s
age), as well as the location (the Kona Outback) and the
perpetrators (Matt Brown and Plaintiffs’ former co-workers)
appear to be the same. As to the theory of the case, however,
Plaintiff’s allegations in the EEOC charge cannot reasonably be
7/
(...continued)
retaliation claim pursuant to the ADEA or some other federal law.
To the extent it is brought under the ADEA, it is subject to
federal exhaustion rules.
11
read to encompass her claims for constructive discharge,
retaliation, and hostile work environment.
With respect to Plaintiff’s claim for constructive
discharge, the Ninth Circuit has stated that an administrative
claim for failure to promote does not encompass a claim for
constructive discharge. See Albano, 912 F.2d at 386 (“We have
previously held that a constructive discharge claim is not like
or reasonably related to a charge of discrimination in
promotion.”). Similarly, Plaintiff’s constructive discharge claim
could not reasonably be expected to grow from the allegation of
failure to hire in her administrative charge. While the December
28, 2012 charge states that Plaintiff was employed at the Kona
Outback “during November 2006 through January 20108/ as a
Hostess/Customer Service [sic.],” it does not make any mention of
Plaintiff’s alleged constructive discharge or the circumstances
surrounding her departure from the job other than stating that
after she “left” she stayed in touch with Matt Brown, her former
manager. (Mot., Ex. A.) The charge expressly mentions her
departure from the Outback and yet fails to even hint at any
discriminatory circumstances surrounding that departure. The
Court therefore concludes that charge does not encompass
Plaintiff’s claim of constructive discharge.
8/
It appears that the January 2010 date is a typographical
error, and Plaintiff meant to indicate that she worked at the
Outback until January 2011. (See Opp’n at 6 n.1.)
12
Similarly, as to Plaintiff’s claims for retaliation and
hostile work environment, “the crucial element of a charge of
discrimination is the factual statement contained therein.”
B.K.B., 276 F.3d at 1100 (quotations and citations omitted).
Construing the allegations in the charge with the utmost
liberality, they still fail to suggest that Plaintiff was subject
to a hostile work environment during her initial period of
employment at the Outback, or that she was retaliated against for
complaining about the discriminatory conduct. Nowhere in the
charge does Plaintiff indicate that Defendants’ determination not
to re-hire her was retaliatory in nature, or that she had
previously complained of or experienced harassing behavior.
Indeed, Plaintiff specifically states in the charge “I believe
but for my age and ancestry/national origin, I would not have
been denied the position.” (Id.) This statement is inconsistent
with a claim that Defendants’ failure to re-hire Plaintiff was
retaliatory (as opposed to simply discriminatory) in nature.
Moreover, there is no indication on the charge at all that any
discriminatory conduct took place at any time other than on July
27, 2012: the factual allegations in Plaintiff’s EEOC charge
relate exclusively to Matt Brown’s failure to re-hire Plaintiff
on that date, and on the charge form the “date(s) discrimination
took place” is listed as July 27, 2012 under the “latest” column,
with no date listed under the “earliest” column, and the
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“continuing violation” box thereunder not checked. (Id.) In sum,
it appears the charge is based entirely and solely upon the July
27, 2012 incident wherein, notwithstanding the fact that
Plaintiff passed “the test for my job,” and was under the
impression she would be re-hired, Matt Brown told Plaintiff he
was not going to re-hire her, and that the other employees “just
don’t want you here.” (Id.)
While the Court acknowledges that EEOC charges should
be construed “with the utmost liberality since they are made by
those unschooled in the technicalities of formal pleading,” the
Court cannot conclude that Plaintiff’s very specific allegations
in the charge should be read to encompass more than what they
say: that Matt Brown refused to re-hire Plaintiff because of her
age and national origin. See B.K.B., 276 F.3d at 1100 (internal
quotation marks omitted); see also Farmer Bros., 31 F.3d at 899
(“The district court had subject matter jurisdiction over
[plaintiff’s] allegations of discriminatory layoff if that claim
fell 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.”); Turner v. Dep’t of Educ.
Hawaii, 855 F. Supp. 2d 1155, 1170-71 (noting that the
“administrative charge requirement serves the purposes of ‘giving
the charged party notice of the claim and narrowing the issues
for prompt adjudication and decision’” and concluding that the
14
plaintiff’s allegations based on discrete acts on a single day
“do not suggest a claim for any actions involving Plaintiff prior
to [that date] or that he was subject to a hostile work
environment.”). In short, the charge does not provide any facts
that remotely suggest claims of hostile work environment,
retaliation, or constructive discharge. As such, to the extent
Plaintiff brings any ADEA claims other than refusal to hire,
Plaintiff has failed to exhaust those claims. Specifically, the
portion of Count I premised upon Plaintiff’s claims of
constructive discharge and hostile work environment, as well as
Count II, Plaintiff’s claim of retaliation (to the extent it is
brought under the ADEA), are DISMISSED for failure to exhaust.
B.
Plaintiff’s State Law Claims
Plaintiff also brings a state law claim in Count III of
her Complaint, which (while quite confusingly drafted) appears to
be an attempt to bring an age discrimination claim based upon the
same factual allegations supporting Plaintiff’s ADEA claim.
(Compl. ¶¶ 56-62.) Hawaii law similarly requires a plaintiff to
exhaust her administrative remedies before bringing a claim for
discrimination pursuant to Hawaii Revised Statutes Chapter 378.
See Haw. Rev. Stat. §§ 378-4, 368-11; see also You v. Longs Drugs
Stores California, LLC, 937 F. Supp. 2d 1237, 1248 (D. Haw.
2013).
As discussed above, Plaintiff’s December 28, 2012
15
charge only encompasses her claim for failure to hire.
Nevertheless, Plaintiff alleges in her Complaint that Defendants
discriminated against Plaintiff when they “suspended and
subsequently fired Plaintiff because she wears a hijab and would
not remove her hijab.” (Compl. ¶ 61.) Based upon the remainder of
the Complaint, the Court suspects this paragraph is a
typographical error, as nowhere else in her Complaint or charge
does Plaintiff mention her religion, that she wears a hijab, or
that she was suspended and fired (indeed, Plaintiff states
elsewhere in her Complaint that she left her position because of
the harassing behavior). Nevertheless, to the extent Plaintiff is
attempting to bring a claim of religious discrimination based
upon these factual allegations, she has failed to exhaust that
claim, as it is clearly not contemplated by the HCRC charge. See
French v. Hawaii Pizza Hut, Inc., 99 P.3d 1046, 1060-61 (Haw.
2004) (upholding lower court’s ruling that the plaintiff had
failed to exhaust her gender discrimination claim where the HCRC
charge contained no facts to support such a claim). Thus, to the
extent Plaintiff is attempting to make any state law claims other
than failure to hire in Count III of her Complaint, they are
DISMISSED for failure to exhaust.
III. Timeliness
Defendants also argue that certain of Plaintiff’s
claims are barred as untimely. With respect to Plaintiff’s
16
federal claims, in order to bring a claim of discrimination under
the ADEA where, as here, state law also bars discrimination on
the basis of age, a plaintiff must first file an administrative
charge within 300 days of the allegedly discriminatory act. 29
U.S.C. § 626(d)(1); see also You, 937 F. Supp. 2d at 1248. As to
her state law claims, section 368–119/ of Hawaii Revised Statutes
requires complaints alleging unlawful discrimination in violation
of sections 378–1 to 378–10 of Hawaii Revised Statutes to be
filed with the HCRC within 180 days of either the occurrence of
the alleged discrimination or the last occurrence in a pattern of
ongoing discriminatory practice. See Sam Teague, Ltd. v. Hawaii
Civil Rights Comm’n, 971 P.2d 1104, 1111 (1999).
As discussed above, Plaintiff’s claim in the
administrative charge is based upon Defendants’ refusal to hire
her, a claim that constitutes a discrete (rather than continuing)
act of discrimination. See National R.S. Passenger Corp. v.
Morgan, 536 U.S. 101, 114 (2002) (stating that “discrete
discriminatory acts are not actionable if time barred, even when
they are related to acts alleged in timely filed charges,” and
including “refusal to hire” in a list of “discrete acts”).
Plaintiff filed her administrative charge on December 28, 2012
9/
Chapter 368 of Hawaii Revised Statutes governs the
procedure by which administrative complaints of discrimination
under Part I of chapter 378 are filed. See Haw. Rev. Stat. §§
378–4; 368–11.
17
and stated on the charge that the latest date on which the
discrimination took place was July 27, 2012. Plaintiff’s federal
and state law claims based upon the failure to hire that took
place on July 27, 2012 are thus clearly timely under both state
and federal law, as the charge was filed within 300 (for federal
claims) and 180 (for state claims) days of the date on which the
discriminatory act allegedly took place.
To the extent Plaintiff attempts to base her federal
claims on any other discriminatory conduct, however, her ADEA
claims are timely only for any discriminatory acts that took
place after March 3, 2012 (300 days prior to the filing of her
December 28, 2012 EEOC Charge). Similarly, to the extent
Plaintiff seeks to base her state law claim on any other
discriminatory conduct, her state law claim is timely only for
any discriminatory acts that took place after July 1, 2012 (180
days prior to the filing of her December 28, 2012 HCRC Charge).
Thus, to the extent Plaintiff seeks to base any federal or state
law claims on the alleged workplace harassment that took place
from 2009 to 2011, (see Compl. ¶¶ 22-32,) such claims are
untimely and therefore barred. While Plaintiff may be able to use
the alleged prior acts that took place from 2009 to 2011 as
background evidence in support of her timely claims, she may not
bring any independent claims based upon conduct that occurred
outside the time periods for filing administrative charges. See
18
Morgan, 536 U.S. at 113.
IV. Plaintiff’s Retaliation Claim (Count II)
As discussed above, to the extent Plaintiff’s
retaliation claim is brought under the ADEA, Plaintiff has failed
to exhaust her administrative remedies and the claim is therefore
barred. The drafting of Plaintiff’s Complaint is, however, a bit
unclear as to which law Plaintiff is bringing her retaliation
claim under. Specifically, Plaintiff states that Defendants
retaliated against her “in violation of the ADEA Section 1981” by
“subjecting Plaintiff to acts of discrimination, harassment and
humiliation, withdrawing an agreed upon accommodation for
Plaintiff’s disabilities, transferring Plaintiff to an overnight
shift, and encouraging and/or coercing Plaintiff’s co-workers to
falsely contradict Plaintiff’s truthful allegations of
discrimination, harassment and/or retaliation.” (Compl. ¶ 53.)
The Court notes that the ADEA does not have a “Section
1981.” It is therefore possible that Plaintiff is attempting to
bring a retaliation claim either pursuant to 42 U.S.C. § 1981, or
pursuant to a different section of the ADEA. As discussed above,
to the extent Plaintiff is attempting to bring her retaliation
claim pursuant to the ADEA, she has failed to exhaust her
administrative remedies and the claim is therefore dismissed. To
the extent she is attempting to bring a claim under 42 U.S.C.
§ 1981, however, she was not required to exhaust. See Metoyer v.
19
Chassman, 504 F.3d 919, 947 n.11 (Bea, J., dissenting) (9th Cir.
2007). The Court therefore examines that claim here.
42 U.S.C. § 1981 prohibits discrimination in the
“benefits, privileges, terms and conditions” of employment. 42
U.S.C. § 1981(b); Metoyer, 504 F.3d at 935. The Supreme Court has
held that claims for retaliation are cognizable under section
1981. CBOCS West, Inc. v. Humphries, 553 U.S. 442, 457 (2008).
When analyzing § 1981 claims, courts apply “the same legal
principles as those applicable in a Title VII disparate treatment
case.” Metoyer, 504 F.3d at 930 (quoting Fonseca v. Sysco Food
Servs. of Ariz. Inc., 374 F.3d 840, 850 (9th Cir. 2004)).
Here, however, Plaintiff fails to state a claim under
section 1981. While the allegations in the Complaint appear to
base this claim upon Plaintiff’s “disabilities,” nowhere else in
the Complaint does Plaintiff mention having a disability or make
any other factual allegations to support a claim for disability
discrimination.10/ Further, even if the Complaint contained such
allegations, to the extent Plaintiff is attempting to bring a
§ 1981 claim based upon a disability, her age, or her Australian
national origin, such claims are not cognizable. See, e.g., Evans
v. City of Houston, 246 F.3d 344, 356 (5th Cir. 2001) (noting
that “§ 1981 prohibits only racial discrimination”); Saint
10/
Indeed, the Court again suspects that this paragraph, or
possibly the entirety of Count II of the Complaint, is a
typographical error.
20
Francis College v. Al-Khazraji, 481 U.S. 604, 613 (1987)
(acknowledging that § 1981 does not provide a remedy for
discrimination based solely on national origin); DuBerry v.
District of Columbia, 582 F. Supp. 2d 27, 40 (D.D.C. 2008)
(“Section 1981 does not prohibit discrimination on the basis of
disability.”). Further, to the extent Plaintiff is attempting to
bring a § 1981 claim based upon her race or ethnicity, the
Complaint contains no factual allegations that might support such
a claim. The Complaint makes no allegations that Defendants
discriminated against Plaintiff based upon her race and, indeed,
does not even identify what Plaintiff’s race is. As such, to the
extent Plaintiff’s retaliation claim in Count II is not barred
for failure to exhaust, it nevertheless fails. Count II of the
Complaint is therefore DISMISSED.
V. Plaintiff’s National Origin Discrimination Claim
In the “Nature of Action” section of Plaintiff’s
Complaint, she states that she seeks relief for, inter alia,
“Defendants’ unlawful discrimination, harassment and retaliation
against Plaintiff because of her . . . national origin . . . .”
(Compl. at 1-2.) Further, on Plaintiffs’ administrative charge
form she checked the boxes for both “age” and “national
origin/ancestry” when identifying the cause of discrimination.
(See Mot., Ex. A.) Nevertheless, the rest of Plaintiff’s
Complaint is entirely devoid of factual allegations supporting a
21
claim of discrimination based upon Plaintiff’s national origin,
and none of the three causes of action in the Complaint mention
such a claim. The Court suspects that Plaintiff’s fleeting
reference to a national origin claim may be a typographical
error. Nevertheless, in an abundance of caution, the Court will
address the claim briefly here.
Plaintiff’s federal claims are both brought pursuant to
the ADEA, which does not provide a cause of action based upon
national origin discrimination. Thus, to the extent Plaintiff is
bringing a national origin claim at all, the Court will treat it
as a claim brought in Count III of the Complaint pursuant to
Hawaii Revised Statutes § 378-2.
Under Hawaii Revised Statutes § 378–2, it is an
unlawful discriminatory practice “[f]or any employer to refuse to
hire or employ or to bar or discharge from employment, or
otherwise discriminate against any individual in compensation or
in the terms, conditions, or privileges of employment” because of
ancestry.11/ Haw. Rev. Stat. § 378–2(a)(1)(A). Such a claim of
discrimination is governed by the same test used by the federal
11/
The Hawaii Administrative Code defines “ancestry” broadly
in this context as follows: “‘Ancestry’ means national origin; an
individual’s or ancestor’s place of origin; or the physical,
cultural, or linguistic characteristics of an ethnic group.” Haw.
Admin. R. § 12-46-1. The Hawaii law thus appears to use the terms
“ancestry” and “national origin” interchangeably in this context.
For purposes of the instant motion, the Court will refer to
Plaintiff’s claim as one for “national origin” discrimination.
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courts in Title VII cases. Schefke v. Reliable Collection Agency,
Ltd., 32 P.3d 52, 69–70 (2001). The burden of proof in
discrimination cases has been described as follows by the Ninth
Circuit:
[A] plaintiff must first establish a prima facie
case of discrimination. If the plaintiff
establishes a prima facie case, the burden then
shifts to the defendant to articulate a legitimate
nondiscriminatory reason for its employment
decision. Then, in order to prevail, the plaintiff
must demonstrate that the employer’s alleged
reason for the adverse employment decision is a
pretext for another motive which is
discriminatory.
Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994).
A plaintiff may establish a prima facie case of
discrimination by producing direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than not
motivated the defendant. McGinest v. GTE Serv. Corp., 360 F.3d
1103, 1122 (9th Cir. 2004). Alternatively, a Plaintiff may
proceed under the McDonnell Douglas burden-shifting framework to
establish a prima facie case. Id. Under McDonnell Douglas, a
plaintiff must prove: (1) she belongs to a protected class; (2)
she was performing her job satisfactorily; (3) she suffered an
adverse employment action; and (4) similarly situated employees
outside her protected class were treated more favorably. Cornwell
v. Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir.
2006); see also McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802 (1973).
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Here, Plaintiff’s Complaint contains no allegations of
direct evidence of national origin discrimination. As such,
Plaintiff must proceed under the McDonnell Douglas burdenshifting framework. Even assuming that Plaintiff’s allegations of
conduct that occurred prior to July 1, 2012 were timely (as
discussed above), Plaintiff still utterly fails to allege a
single fact to support a national origin discrimination claim.
Plaintiff states that she is Australian; however, she makes no
allegation that similarly situated non-Australian employees were
treated more favorably. In her Complaint Plaintiff states
explicitly that she told Matthew Brown that the harassment she
was experiencing was “all age-related.” (Compl. ¶ 23.) Indeed,
leaving aside what appear to be typographical errors involving
claims of religious and disability discrimination, all of
Plaintiffs’ allegations of discrimination - even including those
that are clearly untimely - are allegations of discrimination
based upon Plaintiff’s age, not her Australian national origin.
As such, to the extent Plaintiff is bringing a national origin
discrimination claim, it is DISMISSED.
VI.
Plaintiff’s Religious Discrimination Claim
As noted above, Count III of the Complaint also
includes a somewhat confusing reference to religious
discrimination under the California Fair Employment and Housing
Act (“FEHA”), even though that count is labeled “Age
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Discrimination in Violation of Hawaii Revised Statutes Chapter
378.” (See Compl. ¶ 61.) Specifically, Plaintiff alleges that
“Defendants discriminated against Plaintiff in violation of FEHA
when Defendants suspended and subsequently fired Plaintiff
because she wears a hijab and would not remove her hijab.” (Id.)
As was the case with Plaintiff’s national origin claim, however,
aside from this single mention of a hijab, the Complaint is
entirely devoid of factual allegations to support a religious
discrimination claim. Indeed, other than this seemingly misplaced
sentence, Plaintiff makes no mention of her religion at all.
Further, this sentence appears to contradict Plaintiff’s claims
elsewhere in the Complaint that she was constructively
discharged, rather than fired. (See Compl. ¶ 32.) In sum, it is
not at all clear to the Court that this allegation is not simply
a typographical error. Because the Complaint contains no
allegations to support such a claim, to the extent Plaintiff is
attempting to bring a claim based upon religious discrimination,
it is DISMISSED.
CONCLUSION
For the foregoing reasons, the Court GRANTS Defendants’
Motion to Dismiss. Count I of the Complaint is DISMISSED WITHOUT
PREJUDICE to the extent Plaintiff bases the claim on allegations
of a hostile work environment or constructive discharge, or on
events that occurred prior to March 3, 2012. Count II of the
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Complaint is DISMISSED WITHOUT PREJUDICE in its entirety. Count
III of the Complaint is DISMISSED WITHOUT PREJUDICE to the extent
it is premised upon events that occurred prior to July 1, 2012,
and to the extent Plaintiff seeks to bring a claim based on
religious, disability, or national origin discrimination.
Plaintiff must file any amended complaint within thirty
days of the entry of this Order. Any amended complaint must
correct all the deficiencies noted in this Order or Plaintiff’s
claims will be dismissed with prejudice.
IT IS SO ORDERED.
DATED:
Honolulu, Hawaii, April 29, 2014
________________________________
Alan C. Kay
Senior United States District Judge
Decampo v. OS Restaurant Services LLC, et al., Civ. No. 14-00092 ACK BMK,
Order Granting Defendants’ Motion to Dismiss.
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