McCarthy v. Hawaiian Parasail, Inc.
Filing
36
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT re 12 Motion for Summary Judgment. Signed by JUDGE LESLIE E. KOBAYASHI on 11/30/2014. Defendants' Motion for Summary Judgment, filed July 30, 2014, is HEREBY GRANTED in its entirety. There being no remaining claims in this case, the Court DIRECTS the Clerk's Office to enter judgment and close the case on December 20, 2014, unless Plaintiff files a timely motion for econsideration of the in stant Order (eps)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
FILED IN THE
UNITED STATES DISTRICT COURT
DISTRICT OF HAWAII
Nov 30, 2014
SUE BEITIA, CLERK
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
TUCKER McCARTHY,
Plaintiff,
vs.
HAWAIIAN PARASAIL, INC., ET
AL.,
Defendants.
_____________________________
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CIVIL 14-00310 LEK-RLP
ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
Before the Court is Defendants Hawaiian Parasail, Inc.
(“Hawaiian Parasail”) and Mark Neumann’s (“Neumann,” collectively
“Defendants”) Motion for Summary Judgment (“Motion”), filed on
July 30, 2014.
[Dkt. no. 12.]
Plaintiff Tucker McCarthy
(“Plaintiff”) filed his memorandum in opposition on September 29,
2014, and Defendants filed their reply on October 6, 2014.
nos. 29, 30.]
2014.
[Dkt.
This matter came on for hearing on October 29,
After careful consideration of the Motion, supporting and
opposing memoranda, and the arguments of counsel, Defendants’
Motion is HEREBY GRANTED for the reasons set forth below.
BACKGROUND
On February 14, 2014 Plaintiff first filed this lawsuit
in the Circuit Court of the First Circuit for the State of
Hawai`i.
[Dkt. no. 1 (notice of removal), Exh. A.]
On July 7,
2014, Defendants filed their Notice of Removal of State Court
Action to Federal Court and, on July 10, 2014, Plaintiff filed
his First Amended Complaint (“the Complaint”), alleging that he
was wrongfully retaliated against and terminated in violation of
federal and state law.
[Dkt. nos. 1, 8.]
Plaintiff alleges that
he was a seaman and deckhand employed by Hawaiian Parasail, a
recreation tour business, and its owner and president, Neumann,
from approximately 2008 until August 2013.
7, 10-11.]
[Complaint at ¶¶ 4-5,
He also alleges that: he worked over twenty hours per
week, sometimes well over forty; he was paid in cash; and
Defendants did not keep written records of hours worked or
employee pay.
[Id. at ¶¶ 16, 17.]
Plaintiff further alleges
that Defendants terminated him shortly after he complained about
a lack of medical insurance and proper compensation, and that
Neumman made misrepresentations to the State of Hawai`i
Unemployment Insurance Division (“State UI Division”) that
Plaintiff had only been employed with him for a few months, which
resulted in Plaintiff not receiving unemployment benefits.
[Id.
at ¶¶ 11, 18, 39.]
The Complaint alleges the following claims: violation
of the Employment Retirement Income Security Act (“ERISA”), 29
U.S.C. § 1140, et seq. (“Count I”); retaliation against a
whistleblower in violation of the Hawai`i Whistleblower
Protection Act (“HWPA”), Haw. Rev. Stat. § 378-1, et seq.
(“Count II”); wrongful discharge in violation of public policy,
pursuant to Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652
2
P.2d 625 (1982) (“Count III”); breach of the implied covenant of
good faith and fair dealing (“Count IV”); unjust enrichment
(“Count V”); and intentional interference with prospective
economic advantage (“Count VI”).
Plaintiff seeks the following
relief: general and special damages; punitive damages; a
declaratory judgment requiring reinstatement and back pay,
including “fringe benefits and seniority rights[;]” a declaratory
judgment prohibiting Defendants from further violating Hawai`i
law “with respect to providing medical insurance[;]” civil
penalties and all other remedies available under ERISA;
reasonable attorneys’ fees and costs; pre- and post-judgment
interest; and all other appropriate relief.
[Complaint at pgs.
11-12.]
DISCUSSION
I.
Count I
Plaintiff alleges that Defendants violated ERISA by
terminating him in retaliation for his complaints about not
receiving medical insurance.
29 U.S.C. § 1140 provides, in
pertinent part:
It shall be unlawful for any person to discharge,
fine, suspend, expel, discipline, or discriminate
against a participant or beneficiary for
exercising any right to which he is entitled under
the provisions of an employee benefit plan, this
subchapter, section 1201 of this title, or the
Welfare and Pension Plans Disclosure Act, or for
the purpose of interfering with the attainment of
any right to which such participant may become
entitled under the plan, this subchapter, or the
3
Welfare and Pension Plans Disclosure Act.[1]
One district court within the Ninth Circuit recently summarized
the burden-shifting standard for ERISA claims:
A retaliation claim under § 1140 is assessed under
the “McDonnell Douglas burden-shifting framework.”
See Lessard v. Applied Risk Mgmt., 307 F.3d 1020,
1025 and n.3 (9th Cir. 2002) (citing McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)).
Under said framework, the “plaintiff must first
establish a prima facie case of retaliation by
showing that [he] engaged in a protected activity,
that [he] was thereafter subjected by [his]
employer to [an] adverse employment action, and
that a causal link exists between the two.” See
Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th
Cir. 1982). “Once the plaintiff has established a
prima facie case, the burden of production
devolves upon the defendant to articulate some
legitimate, non-retaliatory reason for the adverse
action.” Id. “If the defendant meets this burden,
the plaintiff must then show that the asserted
reason was a pretext for retaliation.” Id.
Pizza v. Fin. Indus. Regulatory Auth., Inc., No.C-13-0688 MMC,
2014 WL 2450863, at *5 (N.D. Cal. May 30, 2014) (some alterations
in Pizza).
For the purposes of the Motion, Defendants do not
contest that Plaintiff can make a prima facie case, and instead
argue that they had legitimate, non-retaliatory reasons for
terminating Plaintiff.
[Mem. in Supp. of Motion at 3-4.2]
They
1
Defendants do not contest in their memoranda that
Plaintiff was exercising a right covered by ERISA.
2
Defendants filed an amended memorandum in support of the
Motion on July 31, 2014. [Dkt. no. 17.] All references to the
memorandum in support of the Motion are to that version of the
(continued...)
4
provide the following rationale:
- Neumann received complaints that Plaintiff used foul language
when he got a small tip from customers, as documented in a
June 16, 2012 memorandum from Neumann to Plaintiff; [Defs.’
Concise Statement of Facts in Support of Motion for Summary
Judgment (“Defs.’ CSOF”), filed 7/30/14 (dkt. no. 13), Decl.
of Mark Neumann (“Neumann Decl.”) at ¶ 7, Exh. C (6/16/2012
Mem. from Management to Tucker McCarthy re Verbal Abuse to
Customers (“6/16/12 Mem.”));]
- Neumann received complaints that Plaintiff passed gas loudly in
the presence of co-workers and customers and laughed about
it; [Neumann Decl. at ¶ 9;]
- Plaintiff showed up for work in a stained and wrinkled uniform
on several occasions, refused to work with certain captains,
and changed the days he said he was available to work, which
placed significant strain on Hawaiian Parasail; [id. at
¶¶ 10-11;]
- Plaintiff took excessive days off in 2013, including during the
busiest times of year (July, September, Thanksgiving, and
Christmas), which was prohibited; [id. at ¶¶ 5, 12, 14, Exh.
D (note requesting September 5-9, November 25-December 2,
and December 20-31 off);] and
- Neumann terminated Plaintiff for these reasons, because he
places significant emphasis on professionalism and customer
service [Neumann Decl. at ¶ 18, Exh. F (9/1/13 letter from
Neumann to Plaintiff (“Termination Letter”))].
Defendants argue that this misconduct violated Hawaiian
Parasail’s Company Policy (“Company Policy”), [Neumann Decl. at
¶ 4, Exh. B (Company Policy),] and that Neumann documented these
reasons in the Termination Letter.
In response, Plaintiff argues that Defendants’ reasons
are pretextual.
Specifically, he argues that: he did not commit
2
(...continued)
memorandum.
5
the acts of misconduct and there is no evidence, other than
Neumann’s conclusory statements, that he did; he was never
advised that he had purportedly violated company policy; other
employees who engaged in the same conduct, including requesting
time off in the same manner as Plaintiff did, were not
terminated; and the purported reasons were not the true reasons,
and the timing of his termination provides circumstantial
evidence that the real reason was his complaints regarding
medical insurance.
[Mem. in Opp. at 11-17.]
The Ninth Circuit has described the burden regarding
pretext at summary judgment:
To survive summary judgment at the pretext stage,
a plaintiff “must produce sufficient evidence to
raise a genuine issue of material fact as to
whether the employer’s proffered nondiscriminatory
reason is merely a pretext for discrimination.”
Dominguez–Curry v. Nev. Transp. Dep’t, 424 F.3d
1027, 1037 (9th Cir. 2005). “The plaintiff can
prove pretext (1) indirectly, by showing that the
employer’s proffered explanation is unworthy of
credence because it is internally inconsistent or
otherwise not believable, or (2) directly, by
showing that unlawful discrimination more likely
motivated the employer.” Raad v. Fairbanks N.
Star Borough Sch. Dist., 323 F.3d 1185, 1194 (9th
Cir. 2003) (internal quotation marks and citation
omitted). “All of the evidence — whether direct
or indirect — is to be considered cumulatively.”
Id. The amount of evidence required to avoid
summary judgment is “minimal.” Nicholson v.
Hyannis Air Serv., Inc., 580 F.3d 1116, 1127 (9th
Cir. 2009). “We have held that very little
evidence is necessary to raise a genuine issue of
fact regarding an employer’s motive; any
indication of discriminatory motive may suffice to
raise a question that can only be resolved by a
fact-finder.” Id. (citation omitted).
6
Teutscher v. Riverside Sheriffs Ass’n, 492 F. App’x 719, 720 (9th
Cir. 2012).
On the other hand, the Ninth Circuit has also held
that, “[c]ircumstantial evidence of pretext must be specific and
substantial in order to survive summary judgment.”
Bergene v.
Salt River Project Agric. Improvement & Power Dist., 272 F.3d
1136, 1142 (9th Cir. 2001) (citation omitted).
To support his
pretext argument, Plaintiff offers the following indirect
evidence, based on his declaration and the declaration of former
Hawaiian Parasail General Manager, Wade Vicilius:
- Plaintiff did not receive the Company Policy until after he
filed the present lawsuit; [Pltf.’s Concise Statement in
Opposition to Defs.’ Motion for Summary Judgment (“Pltf.’s
CSOF”), filed 9/29/14 (dkt. no. 29-1), Decl. of Tucker
McCarthy (“McCarthy Decl.”) at ¶ 9;]
- Plaintiff never received the 6/16/12 Memorandum, and neither
Neumann nor any other Hawaiian Parasail employee ever
accused Plaintiff of misconduct or improper use of leave
prior to the Termination Letter; [id. at ¶¶ 10, 19; Pltf.’s
CSOF, Decl. of Wade Vacilius (“Vacilius Decl.”) at ¶ 4
(stating that he was not aware of any disciplinary action
taken against Plaintiff);]
- Plaintiff never used foul language or passed gas in front of
customers or employees, his work shirts were “always clean
as they could be,” he never refused to work with any
coworkers, and he did not dictate his schedule, but rather
made requests for time off or to make schedule changes;
[McCarthy Decl. at ¶¶ 11, 15-16; Vacilius Decl. at ¶ 4
(attesting that he never observed any misconduct by
Plaintiff);]
- Hawaiian Parasail did not post the policy or tell Plaintiff or
other employees that taking time off in June through
September was prohibited, and, in any event, Plaintiff
received authorization from Hawaiian Parasail’s manager for
all time off (including the September days) more than a
month before, left a note with his dates in the office, and
arranged coverage for his shift, as was standard policy;
7
[McCarthy Decl. at ¶¶ 12-14, 16; Vacilius Decl. at ¶ 8
(attesting that this was the usual practice for time off);]
- no other employee was ever disciplined for following the same
protocol as Plaintiff for time off (even when that time was
during the busy season), or wearing wrinkled or dirty
clothes; [McCarthy Decl. at ¶¶ 17-18;]
- in May 2013, Neumann placed Plaintiff on payroll as a “new”
employee, ineligible for health insurance for ninety days,
and terminated him before he received those benefits; [id.
at ¶¶ 4, 7;]
- in late August 2014, Plaintiff had an argument with Neumann
over medical benefits, in which he questioned whether Hawaii
Parasail was required to provide health coverage for all
employees who worked over twenty hours per week and
requested wage documentation from 2008-2013 so he could
complete his taxes; Neumann responded that, if he did not
like the policy, Plaintiff should “work somewhere else,” and
two weeks later Neumann terminated him [id. at ¶¶ 5-6].
In reply, Defendants argue that: Plaintiff has not
shown that Neumann did not honestly believe the non-retaliatory
reasons he gave for terminating Plaintiff; Plaintiff does not
deny that he planned to take more than twenty-five days off in
the second half of 2013, and that most of those days were during
the busiest times of year; and there is evidence that Neumann
terminated other employees who did not engage in protected
activity for lesser and similar offenses.
[Reply at 6-9.]
Regarding his honest belief concerning the
justification, Defendants offer the Termination Letter, which
gives multiple reasons for Neumann’s decision to terminate
Plaintiff, including the required changes to Plaintiff’s
schedule, his wrinkled and dirty uniforms, and Plaintiff’s
8
resistence to working with colleagues.
While Plaintiff denies
that he engaged in these behaviors, [McCarthy Decl. at ¶¶ 11, 15,
16,] the majority of the letter discusses Plaintiff’s
absenteeism, which Plaintiff does not deny.3
While there is some
discussion of the protocol for requesting leave and the purported
prohibition on leave during the busy times of year, the thrust of
the letter is that Neumann believed that Plaintiff was requesting
too much time off at times inconvenient for his company, and this
showed a lack of respect and commitment to Neumann and Hawaiian
Parasail.
The letter states:
Prior to summer, I posted a sign in the
ticket booth next to your work schedule notifying
all employees they must not take time off during
the summer months.[4] This summer was thought to
be the busiest ever and just before this summer I
lost a full time captain and full time
captain/crew. While I quickly hired a new crew
and captain it still left me short on captains and
left me with the bare minimum on crew. You took
3
The Court questions whether Plaintiff’s denials of the
other acts of misconduct alone are sufficient to create a genuine
issue of material fact. See Nilsson v. City of Mesa, 503 F.3d
947, 952 (9th Cir. 2007) (“[A] conclusory, self-serving
affidavit, lacking detailed facts and any supporting evidence, is
insufficient to create a genuine issue of material fact.”
(citation and internal quotation marks omitted)). However, even
crediting those denials, Plaintiff still does not create a
genuine dispute as to pretext, as discussed more fully infra.
4
Both Plaintiff and Vacilius deny that there was ever a
sign posted. [McCarthy Decl. at ¶ 12; Vacilius Decl. at ¶ 9.]
The Court notes that Vacilius attests that he worked for Hawaiian
Parasail until approximately June 2013, and therefore he may have
left the company before Neumann posted the sign. Again, even
assuming there is a genuine issue as to the sign, Plaintiff does
not satisfy his burden on pretext.
9
time off from work during the busiest time of the
summer, in July, while I was short handed causing
much stress and having the van driver work crew in
your replacement.
Now you are about to do the same unacceptable
and irresponsible act as you have done before,
that of thinking you are covering your absence
from your scheduled work days by notifying me that
another employee will work those days you are
intending to be absent from, while that employee
is already scheduled to work on the other boat for
those days.
Then again you have served notice that you
intend to be absent from work for a week from
November 25th - December 2nd. Then again your
notice states that you intend to be absent from
December 20th - 31st, the busiest time of the off
season. You seem to think that your job is
something that waits around for you and that you
can take off from work as many times a year and at
any time you wish. This is totally unacceptable
and disrespectful to the needs of the company that
depends on you.
[Termination Letter at 11013300021-22.]
Plaintiff does not deny
that he: requested time off during the summer, in September, over
Thanksgiving, and Christmas – all in the same year; knew these
times were the busiest times of year; and knew that this might
put stress on Hawaiian Parasail.
Nor does he provide any
evidence, other than the timing between the purported argument
over benefits and pay statements and his termination, [McCarthy
Decl. at ¶¶ 4-5,] and statements that Neumann is a liar, [id. at
¶ 22; Vacilius Decl. at ¶ 11,] to show that Neumann did not
honestly believe that Plaintiff’s absenteeism was a problem for
Neumann and he did not terminate Plaintiff because of it.
10
First, as Plaintiff concedes, and this Court agrees,
“proximity [in time] alone is not enough to establish pretext[.]”
Mem. in Opp. at 16; see also, e.g., Hooker v. Parker Hannifin
Corp., 548 F. App’x 368, 370-71 (9th Cir. 2013) (“While evidence
of temporal proximity is sufficient to demonstrate a prima facie
case of retaliation, the first step in the McDonnell Douglas
burden-shifting test, it is ordinarily insufficient to satisfy
the secondary burden to provide evidence of pretext.” (citation
omitted)).
Second, a self-serving declaration that the employer is
not telling the truth or is a liar does not create a genuine
issue of material fact as to whether the employer’s justification
is pretextual.
See Nilsson, 503 F.3d at 952; Hernandez v.
Spacelabs Med. Inc., 343 F.3d 1107, 1116 (9th Cir. 2003)
(“conclusory allegations, unsupported by facts, are insufficient
to survive a motion for summary judgment” (citation omitted)).
Third, and related, Plaintiff has not put forth any
evidence that Neumann did not subjectively believe his purported
explanation that he was terminating Plaintiff because of
excessive and poorly timed absences.
This Court has explained
that, “‘it is not important whether [the proffered reasons] were
objectively false. . . .
Rather, courts only require that an
employer honestly believed its reason for its actions, even if
its reason is foolish or trivial or even baseless.’”
11
Marugame v.
Napolitano, Civil No. 11-00710 LEK-BMK, 2013 WL 4608079, at *22
(D. Hawai`i Aug. 28, 2013) (alteration in Marugame) (quoting
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1063 (9th
Cir. 2002)).
Plaintiff here has not “identif[ied] sufficient
evidence to create a genuine issue of material fact as to whether
[Neumann] honestly believed the stated reasons for the
[termination].”
See id.
In sum, as to pretext, Plaintiff has offered no
evidence to demonstrate that “(1) [Defendants’] proffered reason
is unworthy of credence; or (2) retaliation was the more likely
motivation.”
Brooks v. Capistrano Unified Sch. Dist., 1 F. Supp.
3d 1029, 1038 (C.D. Cal. 2014) (citing Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1062–63 (9th Cir. 2002)).
Thus, under
either standard, compare Teutscher, 492 F. App’x at 720 (“any
indication of discriminatory motive may suffice”); with Bergene,
272 F.3d at 1142 (evidence must be “specific and substantial”),
Plaintiff has failed to provide sufficient evidence of pretext.
Further, Defendants have offered evidence that
similarly situated individuals were treated the same as
Plaintiff.
Neumann attests that he terminated two employees for,
in essence, bad attitudes, and neither had engaged in purportedly
protected activity.5
[Neumann Decl. at ¶¶ 22-24.]
5
Plaintiff
Neumann states that he terminated an employee because he
“received complaints that [the employee] was mean and grouchy to
(continued...)
12
does not dispute that these employees were similarly situated to
him.6
This Court has found a lack of pretext at summary judgment
on precisely this basis.
See Marugame, 2013 WL 4608079, at *23
(“Perhaps the most telling evidence which prevents Plaintiff from
showing a genuine issue of fact as to pretext is the fact that
[coworker] Cox, who did not engage in a protected activity,
received the same discipline for the same reasons as
Plaintiff[.]”).
As the Ninth Circuit has explained, such a
showing “negates” any claim by Plaintiff of pretext.
DiDiana v.
Parball Corp., 472 F. App’x 680, 681 (9th Cir. 2012) (“Because
‘at least one other similarly situated employee . . . was treated
in a similar manner as [DiDiana],’ that evidence negates ‘any
showing of pretext’ and therefore defeats DiDiana’s claim.”
(alterations in Didiana) (quoting Snead v. Metro. Prop. & Cas.
Ins. Co., 237 F.3d 1080, 1094 (9th Cir. 2001)).
5
(...continued)
customers,” and he terminated another one because the employee
“refused to accept a disciplinary memorandum that [Neumann’s]
staff attempted to give [the employee], told the office manager
that [Neumann] was a coward for not personally handing [the
employee] the memorandum, and refused to accept revised Safety
Instructions for boat captains that [Neumann] attempted to give
to him weeks later.” [Neumann Decl. at ¶¶ 22-23.]
6
Instead Plaintiff focuses his argument on his claims that
no other employee was terminated for following the leave request
policy he followed or disciplined for wearing wrinkled and dirty
clothing. [Mem. in Opp. at 15-16.] However, as discussed above,
those are only two of the reasons given by Neumann. Thus,
disputing those elements does not create a genuine issue as to
the employees terminated for bad attitudes.
13
Since Plaintiff has neither provided any evidence,
other than timing, of pretext, nor rebutted Neumann’s stated
reason of terminating Plaintiff for, inter alia, excessive
absenteeism, and Defendants have rebutted any showing of pretext
through evidence regarding similarly situated employees, there is
no genuine issue of material fact as to pretext.
The Court,
thus, GRANTS the Motion as to Count I.
II.
Count II
Plaintiff argues that Defendants violated HWPA by
retaliating against him for reporting to “Defendants perceived
violations of state law – to wit failure to provide wage
statements in compliance with Hawaii law.”7
[Mem. in Opp. at 25
(citing HRS 387-6(c), which requires providing pay information to
employees every pay period).]
Haw. Rev. Stat. § 378-62 provides
in pertinent part:
7
Plaintiff appears to fashion his HWPA and Parnar claims so
as to avoid preemption by ERISA, which was the basis for
dismissal of those claims in the state court before removal. See
Mem. in Opp. at 6 n.1 (reporting that summary judgment was
granted “for causes of action under HWPA and other theories that
alleged retaliation based on failure to provide medical coverage,
which the circuit court held were preempted by ERISA”). Insofar
as he alleges violations for complaining about not providing
health insurance, the Court finds that the claims are preempted
by ERISA. In his memorandum in opposition, Plaintiff further
narrows the basis for Counts II and III from his allegations that
the retaliation was based on complaints about overtime.
Defendants surmise that this change is a concession that the
overtime requirements of 29 U.S.C. § 207 do not apply to seamen.
[Mem. in Supp. of Motion at 10 (citing 29 U.S.C. § 213(b)(6)).]
Even reading the allegations broadly as Plaintiff argues this
Court should, Counts II and III still do not avoid dismissal.
14
An employer shall not discharge, threaten, or
otherwise discriminate against an employee
regarding the employee’s compensation, terms,
conditions, location, or privileges of employment
because:
(1) The employee, or a person acting on
behalf of the employee, reports or is about
to report to the employer, or reports or is
about to report to a public body, verbally or
in writing, a violation or a suspected
violation of:
(A) A law, rule, ordinance, or
regulation, adopted pursuant to law of
this State, a political subdivision of
this State, or the United States[.]
“A HWPA claim contains the following three elements:
(1) the employee engaged in protected conduct as it is defined by
the HWPA; (2) the employer has taken some adverse action against
the employee; and (3) there is a causal connection between the
alleged retaliation and the ‘whistleblowing.’”
Casumpang v.
Hawaiian Commercial & Sugar Co., Civil No. 12-00694 ACK-BMK, 2014
WL 4322168, at *13 (D. Hawai`i Aug. 29, 2014) (citations
omitted).
First, the Court questions whether Plaintiff engaged in
cognizable protected activity under HWPA.
Plaintiff states in
his declaration that he “asked about getting wage statements and
documentation about [his] wages and deductions from past years
(2008-2013) so [he] could complete [his] taxes for past years”
and he “told Mark Neumann that [he] thought the law said
[Neumann] was supposed to provide this information to all
15
employees for all years worked, not just for the time [he] was on
payroll.”
[McCarthy Decl. at ¶ 6.]
This does not meet the plain
language of the statute that prohibits termination of an employee
who “reports or is about to report to the employer . . . a
violation or a suspected violation of . . . [a] law[.]”
§ 378-62(1)(A).
See
Plaintiff’s evidence shows that he questioned
Neumann about his practices, not that he was reporting or
planning to report a violation of the law.
Further, as with Count I, even if Plaintiff’s
discussion with Neumann could be construed as protected activity,
he has failed to create a genuine issue as to Defendants’
legitimate non-discriminatory reason for terminating him.8
See,
e.g., Taguchi v. State, Dep’t of Health, 2012 WL 5676833 (Hawai`i
Ct. App. Nov. 15, 2012) (applying burden shifting analysis to
HWPA claim).
Thus, for the same reasons as with Count I, summary
judgment is warranted on this basis as well.
The Court therefore
GRANTS the Motion as to Count II.
III. Count III
Plaintiff argues that his wage statement complaints
also provide the basis for his Parnar claim.
25.]
[Mem. in Opp. at
This Court recently found:
In Parnar v. Americana Hotels, Inc., 65 Haw.
8
The Court agrees with Defendants that the evidence
Plaintiff presents in his declaration is indirect evidence and
thus the McDonnell Douglas burden shifting analysis applies.
16
370, 652 P.2d 625 (1982), the Hawai`i Supreme
Court adopted a common law tort, whereby an
individual may bring a claim against an employer
if her discharge directly violates clear public
policy. The court explained,
Because the courts are a proper forum for
modification of the judicially created
at-will doctrine, it is appropriate that we
correct inequities resulting from harsh
application of the doctrine by recognizing
its inapplicability in a narrow class of
cases. The public policy exception discussed
herein represents wise and progressive social
policy which both addresses the need for
greater job security and preserves to the
employer sufficient latitude to maintain
profitable and efficient business operations.
We therefore hold that an employer may be
held liable in tort where his discharge of an
employee violates a clear mandate of public
policy. In determining whether a clear
mandate of public policy is violated, courts
should inquire whether the employer’s conduct
contravenes the letter or purpose of a
constitutional, statutory, or regulatory
provision or scheme. Prior judicial
decisions may also establish the relevant
public policy. However, courts should
proceed cautiously if called upon to declare
public policy absent some prior legislative
or judicial expression on the subject. Of
course, the plaintiff alleging a retaliatory
discharge bears the burden of proving that
the discharge violates a clear mandate of
public policy.
Id. at 379–80, 652 P.2d at 631 (footnotes
omitted). “Parnar claims can only be maintained
in a ‘narrow class of cases’ where the judicially
created wrongful discharge action is needed to
effectuate the public policy at stake.” Cambron
v. Starwood Vacation Ownership, Inc., 945 F. Supp.
2d 1133, 1141–42 (D. Hawai`i 2013) (citing Ross v.
Stouffer Hotel Co., 76 Hawai`i 454, 879 P.2d 1037,
1047 (1994)).
Ritchie v. Hawai`i, Civil No. 14-00046 LEK-BMK, 2014 WL 4905336,
17
at *9-10 (D. Hawai`i Sept. 30, 2014).
Further, courts regularly reject Parnar claims where
there is already a remedial scheme protecting the employee
against the purported violation at issue.
See, e.g., Patrick v.
3D Holdings, LLC, Civil No. 13–00638 JMS/KSC, 2014 WL 1094917, at
*12 (D. Hawai`i Mar. 18, 2014) (citing Hughes v. Mayoral, 721 F.
Supp. 2d. 947, 962 (D. Haw. 2010) (“Plaintiff cannot state a
claim for wrongful termination in violation of public policy
[under Parnar] based on the same conduct as his Title VII and HRS
§ 378 claims because these statutes already provide a sufficient
remedy.” (alteration in Patrick)); Ross, 76 Hawai`i at 464, 879
P.2d at 1047 (“By making the discharge of an employee ‘because of
. . . [his or her] marital status’ unlawful, HRS § 378–2(1), and
providing a remedial scheme for that discriminatory employment
practice, the legislature itself has provided the means for
enforcing the public policy that Ross seeks to vindicate through
his Parnar claim.” (alterations in Ross)).
To prevail on a Parnar claim, Plaintiff must
demonstrate he: (1) engaged in a protected activity such as
refusing to commit an unlawful act, performing an important
public obligation such as whistle blowing, or exercising a
statutory right; (2) he was terminated because of this protected
activity; and (3) the termination violated a clear mandate of
public policy.
See Villiarimo, 281 F.3d at 1067.
18
Plaintiff cannot sustain his Parnar claim for two
reasons.
First, as with his HWPA claim, Plaintiff did not engage
in a protected activity under Parnar.
Second, Haw. Rev. Stat.
Chapter 387 already provides an enforcement mechanism for § 3876(c).
Haw. Rev. Stat. § 387-12(a) states, in part:
“any employer . . . who discharges . . . any employee because the
employee has made a complaint to the employee’s
employer . . . that the employee has not been paid wages in
accordance with this chapter . . . shall be guilty of a
misdemeanor . . . .”
This district court have concluded that,
“courts do not recognize Parnar claims where — like here — the
public policy at issue is contained in a statute, if that
statutory scheme provides a remedy for violations of that
policy.”
Batacan v. Reliant Pharm., 324 F. Supp. 2d 1144, 1145
(D. Hawai`i 2004).
For both of these reasons, the Court GRANTS
the Motion as to Count III.9
IV.
Count IV
Defendants argue that the tort of bad faith does not
apply in the at-will context.
This Court agrees.
The Hawai`i Supreme Court first recognized the tort of
bad faith in Best Place, Inc. v. Penn America Insurance Co.
9
See
The Court agrees with Defendants that it would make sense
to apply the McDonnell Douglas burden-shifting analysis to Parnar
claims as well, but it is not aware of any case, and Defendants
do not provide any, that does so.
19
82 Hawai`i 120, 132, 920 P.2d 334, 346 (1996) (“[W]e hold that
there is a legal duty, implied in a first-and third-party
insurance contract, that the insurer must act in good faith in
dealing with its insured, and a breach of that duty of good faith
gives rise to an independent tort cause of action.”).
However,
the Court recognized an exception to this rule:
One exception to this well established principle
of contract law is the at-will employment
doctrine. In Parnar v. Americana Hotels, 65 Haw.
370, 652 P.2d 625 (1982), we noted that an at-will
employment contract, by definition, is terminable
at the will of either party, for any reason or no
reason at all. As such, parties to an at-will
employment contract enter into the contract with
full knowledge that the employment is for an
indefinite duration and can terminate at the will
of either party. Given the unique nature of the
at-will employment relationship, this court
refused to imply a duty to terminate in good
faith. Our holding in Parnar, however, is limited
to the at-will employment context, and Hawai`i
continues to adhere to the general principle that,
in every contract, the law imposes on the parties
a duty of good faith and fair dealing.
Id. at 124 n.5, 920 P.2d at 338 n.5.
Defendants point out that
Hawai`i courts have applied the exemption from Parnar in cases
where there was no allegation of wrongful discharge.
[Reply at
14 (citing Snider v. Crimson Enterprises, Inc., 768 F. Supp. 734,
740 (D. Haw. 1991)).]
Based on the reasoning of Parnar and Best
Place, the Court rejects Plaintiff’s argument that the duty of
good faith applies to an at-will employment relationship.
therefore GRANTS the Motion as to Count IV.
20
It
V.
Count V
Defendant argues that Plaintiff’s claim for unjust
enrichment fails as a matter of law because Plaintiff has not
pled any facts to show that his compensation was unjust, or how
Defendants were unjustly enriched by not providing wage
statements to Plaintiff.
Reply at 14.]
[Mem. in Supp. of Motion at 13-14;
Plaintiff mistakenly states that Defendants did
not move for summary judgment on Count V.
[Mem. in Opp. at 7.]
However, even if he had opposed the Motion on this count, this
Court would still conclude that his unjust enrichment claim
fails.
The Hawai`i Supreme Court has held:
A claim for unjust enrichment permits a party to
seek restitution for benefits improperly conferred
on an opposing party as a result of a wrongful
act. Porter v. Hu, 116 Hawai`i 42, 55, 169 P.3d
994, 1007 (App. 2007) (citing Durette v. Aloha
Plastic Recycling, 105 Hawai`i 490, 100 P.3d 60
(2004)). In deciding whether a party is entitled
to restitution, the court is guided by its
objective to prevent injustice. Small v.
Badenhop, 67 Haw. 626, 636, 701 P.2d 647, 654
(1985) (“One who receives a benefit is of course
enriched, and he would be unjustly enriched if its
retention would be unjust.” (Citation omitted.)).
Hawaiian Ass’n of Seventh-Day Adventists v. Wong, 130 Hawai`i 36,
49, 305 P.3d 452, 465 (2013).
The Court agrees with Defendants
that Plaintiff has provided no evidence that any benefit to which
he was entitled was improperly conferred on Defendants.
the Court GRANTS the Motion as to Count V.
21
As such,
VI.
Count VI
Plaintiff argues that there is undisputed evidence that
Neumann interfered with Plaintiff’s ability to collect
unemployment benefits and, even though he ultimately prevailed on
appeal, he is entitled to punitive damages for the violation.
[Mem. in Opp. at 31.]
The Hawai`i Supreme Court has held:
The elements of the tort of intentional
interference with prospective business advantage
are:
(1) the existence of a valid business
relationship or a prospective advantage or
expectancy sufficiently definite, specific,
and capable of acceptance in the sense that
there is a reasonable probability of it
maturing into a future economic benefit to
the plaintiff; (2) knowledge of the
relationship, advantage, or expectancy by the
defendant; (3) a purposeful intent to
interfere with the relationship, advantage,
or expectancy; (4) legal causation between
the act of interference and the impairment of
the relationship, advantage, or expectancy;
and (5) actual damages.
Minton v. Quintal, 131 Hawai`i 167, 191, 317 P.3d 1, 25 (2013)
(citations omitted).
Plaintiff’s claim fails because: Neumann
terminated Plaintiff for misconduct, and thus Plaintiff had no
prospective expectancy in unemployment; see Lee v. Hawaii Pac.
Univ., Civil No. 12-00604 BMK, 2014 WL 794661, at *8 (D. Hawai`i
Feb. 26, 2014) (finding that the plaintiff did not “have a
‘prospective advantage or expectancy’ that [was] reasonably
probable to mature into ‘future economic benefit’ given that
[Haw. Rev. Stat.] § 383–30(2) expressly disqualifies employees
22
discharged for misconduct from receiving unemployment benefits”);
the initial denial of the claim was based on Plaintiff’s
misconduct and not any purported lies Neumann told about how long
Plaintiff had been employed with Hawaiian Parasail as Plaintiff
now argues; [Defs.’ CSOF at ¶ 20 (stating that State UI Division
denied Plaintiff benefits “because it found that [Plaintiff] was
terminated for misconduct connected with work”); Pltf.’s CSOF at
¶ 20 (disputing whether Neumann told the truth, but not the basis
for the State UI Division’s decision);] and Plaintiff concedes
that he received unemployment benefits, [Pltf.’s CSOF at ¶ 21
(admitting that the State UI Division awarded him benefits),]
and, therefore, there are no actual damages.
Since there is no
genuine issue of fact as to three elements of the claim, the
Court GRANTS summary judgment for Defendants on Count VI.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment, filed July 30, 2014, is HEREBY GRANTED in its
entirety.
There being no remaining claims in this case, the
Court DIRECTS the Clerk’s Office to enter judgment and close the
case on December 20, 2014, unless Plaintiff files a timely motion
23
for reconsideration of the instant Order.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 30, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
TUCKER McCARTHY V. HAWAIIAN PARASAIL, INC., ET AL.; CIVIL 1400310 LEK-RLP; ORDER GRANTING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT
24
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