Chan vs. Wells Fargo Advisors, LLC
Filing
63
ORDER GRANTING IN PART AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT re 46 Motion for Summary Judgment. Signed by JUDGE SUSAN OKI MOLLWAY on 08/24/2015. The court grants Wells Fargo's motion for summary ju dgment with respect to Count I (termination in violation of public policy claim), Count III (IIED claim), and Count IV (punitive damage claim). The court denies the motion with respect to Count II (retaliation in violation of section 378-62 claim) an d Count V (disability discrimination claim under section 378-2 and the ADA). (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
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
PAUL CHAN,
Plaintiff,
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vs.
WELLS FARGO ADVISORS, LLC.;
JOHN DOES 1-10; JANE DOES 110; DOE CORPORATIONS 1-10;
DOE PARTNERSHIPS 1-10; DOE
UNINCORPORATED ORGANIZATIONS
1-10; and DOE GOVERNMENTAL
AGENCIES 1-10,
Defendants.
CIV. NO. 14-00344 SOM/KSC
ORDER GRANTING IN PART AND
DENYING IN PART MOTION FOR
SUMMARY JUDGMENT
ORDER GRANTING IN PART AND DENYING
IN PART MOTION FOR SUMMARY JUDGMENT
I.
INTRODUCTION.
This arises out of an alleged statement by a financial
advisor’s assistant to a supervisor that the financial advisor
had made an illegal trade.
Whether the financial advisor decided
that he no longer wanted to work with the assistant as a result
of that complaint or whether the decision to move the assistant
to a different financial advisor was made for other legitimate,
nondiscriminatory reasons is the question at heart of this
lawsuit.
Ultimately, the assistant allegedly suffered great
anxiety and was unable to work.
After the assistant had
exhausted his two years of unpaid medical leave, the company
terminated him.
Whether the company was required to grant the
assistant more leave as a reasonable accommodation is another
issue before the court.
The company, Defendant Wells Fargo Advisors, has moved
for summary judgment.
With respect to Count I of the First Amended Complaint,
asserting a termination in violation of public policy, the court
grants Wells Fargo summary judgment, as this portion of the
motion is unopposed.
Plaintiff Paul Chan fails to show that he
was terminated in violation of public policy.
With respect to Count II, asserting a violation of
Hawaii’s Whistleblowers’ Protection Act, section 378-62 of Hawaii
Revised Statutes, the court denies the request for summary
judgment, determining that there are questions of fact as to
whether Chan suffered an adverse employment action because he
purportedly reported an illegal trade to his employer.
With respect to Count III, asserting a claim of
intentional infliction of emotional distress, the court grants
summary judgment in favor of Wells Fargo, determining that
Hawaii’s workers’ compensation provisions provide the exclusive
remedy for work-related injuries.
If appropriate, however,
emotional distress damages may be sought as a remedy in
connection with other causes of action.
With respect to Count IV, asserting a claim of punitive
damages, the court grants summary judgment in favor of Wells
2
Fargo because no independent claim for punitive damages exists.
However, if appropriate, punitive damages may be sought as a
remedy in connection with other causes of action.
Finally, with respect to Count V, asserting a claim of
disability discrimination, the court denies Wells Fargo’s request
for summary judgment, determining that there are issues of fact
as to whether Wells Fargo engaged in the required interactive
process to determine whether it could make any reasonable
accommodation that would have allowed Chan to return to work.
II.
FACTUAL BACKGROUND.
In 1998, Chan was hired as a client associate by Herman
Ching, a senior financial advisor at Prudential Securities.
See
Decl. of Paul Chan ¶ 3, ECF No. 52-6, PageID # 985; Decl. of
Herman Ching ¶ 6, ECF No. 47-17, ECF No. 756.
Chan coordinated
Herman Ching’s clients and appointments for 15 years.
¶ 10.
Chan Decl.
Every month, Herman Ching gave Chan an envelope containing
between $100 and $1,000 to personally thank Chan.
In other
words, this money came from Herman Ching, not the company.
Id.
¶ 12; Videotaped Depo. of Paul Chan at 105-06, ECF No. 47-2,
PageID #s 393-94; Videotaped Depo. of Herman Ching at 28, ECF No.
52-2, PageID # 918; Herman Ching Decl. ¶ 17, ECF No. 47-17,
PageID # 758.
Herman Ching also gave Chan gifts for special
occasions like Christmas or his birthday, and whenever Ching
3
wanted to reward him, such as when Ching had a good month.
See
Chan Depo. at 119, ECF No. 47-2, PageID # 397.
Prudential Securities eventually became Wells Fargo.
Chan Decl. ¶ 7.
In May 2009, Chan became the primary client associate
for Eric Ching, Herman Ching’s son.
See Herman Ching Decl.
¶¶ 11, 20, ECF No. 47-17, PageID # 757-59.
At the same time, Kay
Yamasaki became Herman Ching’s primary client associate.
Id.
¶ 20, ECF No. 47-17, PageID # 759.
Eric Ching continued his father’s practice of giving
Chan personal cash gifts to thank Chan for his work.
These gifts
came from Eric Ching’s personal funds, not the company’s, see
Decl. of Eric Ching ¶ 8, ECF No. 47-18, PageID # 763, and were
less frequent than those from Herman Ching, see Chan Decl. ¶ 13,
ECF No. 52-6, PageID # 986; Chan Depo. at 119, ECF No. 47-2,
PageID # 397.
Herman Ching, Eric Ching, Chan, and Yamasaki all
reported to Thomas McCarthy, a Senior Vice President–Complex
Manager for Wells Fargo.
Herman Ching Decl. ¶ 13, ECF No. 47-17,
PageID # 757.
In June 2012, one of Wells Fargo’s clients called,
concerned that her required minimum IRA distribution was late.
Herman Ching told Chan that the client was unhappy.
Depo. at 134-35, ECF No. 47-2, PageID # 407-08.
4
See Chan
On Friday, June
22, 2012, Chan processed the client’s request for the required
minimum distribution.
# 987.
See Chan. Decl. ¶ 22, ECF No. 52-6, PageID
In so doing, Chan noticed that funds were missing from
the client’s IRA account.
Id. ¶ 23.
Chan says that Eric Ching
must have violated the law by trading with the client’s funds
without permission.
Chan concludes this based on Eric Ching’s
statement to Chan that, seeing a cash balance in the client’s
account, he had made investments in what Eric Ching called a
“discretionary account.”
# 988.
Id. ¶¶ 25-28, ECF No. 52-6, PageID
In his deposition, Chan was asked whether he knew whether
Eric Ching had permission to make the trade.
Chan indicated that
he did not know, but had to assume that Eric Ching had such
permission.
See Chan Depo. at 148-49, ECF No. 47-2, PageID
# 409-10.
Chan says that Yamasaki cancelled the paperwork he
prepared to get the client paid.
PageID # 988.
Chan Decl. ¶ 30, ECF No. 52-6,
Yamasaki had processed the same paperwork, and one
of the two payment requests had to be cancelled.
Decl. ¶ 12, ECF No. 47-19, PageID # 770.
this.
See McCarthy
Chan was livid about
He says that, because he had been verbally and physically
harassed by Yamasaki, causing him to avoid talking with her from
about 2005, he went to the copy room and ranted.
Id. ¶ 31.
Not
knowing that anyone else was in the copy room, Chan complained,
“What the hell is she doing?
Why is she bulldozing people?
5
She
successfully chased away her daughter and her husband cheated on
her.”
Id., PageID # 989.
Another staff member overheard Chan
and reported his statements to Yamasaki.
Id.
Yamasaki then
complained about Chan’s rant to Wells Fargo’s human resource
department.
See id. ¶ 38, PageID # 990.
The next working day, Monday, June 25, 2012, Herman
Ching told Chan that human resources was involved and that Chan
had to leave the office and not come back until told to do so.
Chan Decl. ¶ 34, ECF No. 52-6, PageID # 989.
Chan was later told
by Eric Ching to return to work the next day for a meeting with
Herman Ching and McCarthy.
Id. ¶ 41, PageID # 990.
On Tuesday, June 26, 2012, Chan met with Herman Ching
and McCarthy separately.
# 990.
Chan Decl. ¶ 42, ECF No. 52-6, PageID
Chan admitted what he had said in the copy room.
Id.
Chan says he explained to Herman Ching and McCarthy what had
happened before he went on his rant, including describing the
possible unauthorized trade.
Id. ¶¶ 42-44, PageID # 991.
McCarthy, on the other hand, says Chan only complained about
Yamasaki’s conduct, not Eric Ching’s.
ECF No. 47-19, PageID #s 770-71.
See McCarthy Decl. ¶ 15,
This is consistent with Eric
Ching’s statement that he was unaware that Chan had complained
about him.
See Eric Ching Decl. ¶ 14, ECF No. 47-18, PageID
# 765.
6
On July 11, 2012, McCarthy issued Chan a formal warning
for having vented in the copy room.
# 774.
See ECF No. 47-20, PageID
In that warning, McCarthy explained that he was moving
Chan’s work area “to improve the environment and reduce
involvement with the other parties involved.”
words, McCarthy separated Chan and Yamasaki.
Id.
In other
See McCarthy Decl.
¶ 16, ECF No. 47-19, PageID #s 771 (“I decided to move Mr. Chan’s
desk away from Ms. Yamasaki’s desk.
I thought that if they had
more physical distance between their work stations, it would ease
the tension between them.”).
Eric Ching says that, by late July or early August
2012, he had decided that he wanted a new client associate.
Decl. of Eric Ching ¶ 11, ECF No. 47-18, PageID # 764.
See
He
explained,
I wanted a Client Associate with more regular
working hours and the ability to meet my
needs in terms of completing work in the time
period I expected the Client Associate to
complete it. I also wanted a Client
Associate who took me seriously even though I
was younger and less experienced than other
Financial Advisors in the Group; and, despite
the fact I am Herman Ching’s son.
Id.
According to Eric Ching, by August 2012, Chan’s work
performance had worsened.
Ching says that, for example, Chan no
longer completed work as quickly and sometimes did not do his
paperwork at all.
Id. ¶ 12, PageID # 764-65.
7
Eric Ching says
that it is common to reassign client associates among financial
advisors.
Id. ¶ 18, ECF No. 47-18, PageID # 766.
Chan disputes Ching’s statements about Chan’s
unreliability.
Chan says that, because he could only carry over
5 days of vacation time, he left early on some days to use his
vacation.
He says he would stay whenever Eric Ching needed him.
See Chan Decl. ¶¶ 63-64, ECF No. 52-6, PageID # 994.
He recalls
taking time off to be with his sick mother before she died and
then taking bereavement leave. Id. ¶¶ 65-68.
Chan denies that he
was performing poorly, pointing out that Herman Ching praised his
work in 2012.
Id. ¶ 72-75, PageID # 995.
Chan’s work in 2012 as “excellent.”
Herman Ching described
See Videotaped Depo. of
Herman Ching at 48, ECF No. 52-2, PageID # 920.
Eric Ching talked about changing assistants with his
father, who recommended a change to McCarthy.
Herman Ching ¶ 22, ECF No. 47-17, PageID # 759.
See Decl. of
It was McCarthy
who made the decision to transfer Chan to another advisor.
Id.
¶ 26, PageID # 760; Chan Decl. ¶ 51, ECF No. 52-6, PageID # 992.
On August 15, 2012, Herman Ching told Chan that Eric
Ching no longer wanted to work with Chan.
See Chan Decl. ¶ 49,
ECF No. 52-6, PageID # 992; Decl. of Herman Ching ¶ 26, ECF No.
47-17, PageID # 760.
Chan then became the client associate for
Thomas Lau, another financial advisor.
Wells Fargo says that
Chan’s pay and bonuses from Wells Fargo remained the same.
8
Herman Ching Decl. ¶ 29, ECF No. 47-17, PageID # 760.
But Chan
says that working for Lau, who was about to retire, was not as
prestigious as working for the Chings.
52-6, PageID # 996.
Chan Decl. ¶ 82, ECF No.
For his part, Herman Ching described the
transfer as a good opportunity for Chan, not a demotion.
He said
that, although Lau was 84 years old, he was still working and had
Chinese clients constituting 25% to 30% of his clients.
Because
Chan spook Chinese, Herman Ching thought Chan could help grow
Lau’s business.
See Ching Depo. at 119-20, ECF No. 52-2, PageID
# 927.
Herman Ching says that Chan’s workload also remained
the same, as he also began working for Herman Ching more.
¶ 29.
Id.
Although paragraph 61 of the First Amended Complaint
alleges that the transfer to Lau caused Chan’s pay to fall by
over 19%, ECF No. 40, PageID # 260, Chan explained in an
interrogatory answer that this reduction resulted from losing his
“supplemental pay . . . from no longer working with Eric Ching.”
ECF No. 47-16, PageID # 748.
Any reduction in pay was thus
related to the loss of “tokens of appreciation” or personal gifts
from Eric and Herman Ching.
See Chan Decl. ¶ 79, ECF No. 52-6,
PageID # 996.
Although Chan was told that he would be losing his $400
per paycheck bonus as a result of the move, see Chan Decl. ¶ 78,
ECF No. 52-6, PageID # 996, he actually received the bonus until
9
he stopped working in September 2012.
No. 52-4, PageID # 954.
See Chan Depo. at 130, ECF
Chan says that the bonuses were to
continue only temporarily while he was transitioning to working
for Lau.
Chan Depo. at 129, ECF No. 52-4, PageID # 953.
Because
Chan stopped working before that transitional period ended, he
did not lose out on any paycheck bonuses.
The record is not
clear as to whether Lau could have asked Wells Fargo to maintain
the bonus of $400 per paycheck.
According to Chan, he was “devastated” by the news that
Eric Ching no longer wanted to work with him.
time off, returning to work on August 21, 2012.
Chan says he took
When he
returned, both Herman and Eric Ching allegedly “blasted” him for
having jeopardized a good client.
52-6, PageID # 992-93.
Chan Decl. ¶¶ 54-55, ECF No.
Chan says he was then told that he no
longer had access to Herman Ching’s and Eric Ching’s accounts.
Id. ¶ 56.
Chan reports that he then “went on leave from work due
to stress from work that resulted in me having major depression
and I went out on work comp.”
PageID #s 996-97.
Chan Decl. ¶ 85, ECF No. 52-6,
Chan says that he took advantage of a Wells
Fargo policy allowing employees to take 24 months of leave.
¶ 88.
Id.
Chan began his unpaid medical leave of absence on
September 28, 2012.
See Decl. of Terricia Gaines ¶¶ 8-9, ECF No.
47-21, PageID # 778.
10
On or about October 8, 2012, Wells Fargo wrote to Chan
to inform him that it had received information that he was on a
leave of absence because of an on-the-job injury or illness.
See
ECF No. 47-23, PageID # 789.
On or about December 28, 2012, Wells Fargo wrote to
Chan to say that he had exhausted his leave under the Family
Medical Leave Act.
The letter mentioned that Chan’s employment
was not ending and that Chan was eligible for benefits through
the balance of his approved leave, which was a maximum of 24
months.
See ECF No. 47-24, PageID # 791.
Apparently, Chan requested medical leave.
In response,
on or about July 31, 2013, Wells Fargo sent Chan a letter
stating, “To qualify for an approved, unpaid Medical Leave,
please review and complete the steps below,” including submitting
a Medical Certification Form.
ECF No. 47-25, PageID # 795.
On or about August 9, 2013, Chan’s physician, Dr. Pien,
sent Wells Fargo the requested Medical Certification Form,
stating that Chan had “anxiety attacks at work, significant
anxiety when thinking upon returning there, in Sept., 2012, daily
depression with almost daily poor appetite, insomnia, low energy,
difficulty making decisions.”
ECF No. 47-26, PageID # 807.
Dr.
Pien estimated that the conditions would last until August 30,
2014.
Id.
11
On or about August 12, 2013, Wells Fargo approved
unpaid medical leave from September 28, 2012, to February 1,
2014.
It informed Chan that, if he needed additional time off,
he needed to submit another medical certification.
See ECF No.
47-27, PageID # 810.
On or about February 1, 2014, Dr. Pien sent Wells Fargo
an updated Medical Certification Form.
Dr. Pien certified that
Chan would be unable to work through February 13, 2015, because
of “severe depression anxiety attacks.”
See ECF No. 47-30,
PageID # 830-33.
Chan’s medical file includes a note dated June 10,
2014, in which Dr. Pien wrote, “Plans to proceed wi. litigation.
Has to decide whether to resign or be terminated this month.”
ECF No. 47-13, PageID #709.
Chan filed the present action in state court on June
30, 2014.
See ECF No. 1-1.
In a note in Chan’s medical file dated July 8, 2014,
Dr. Pien wrote, “Proceeding w/ litigation.
he let company fire him come Aug. 1.
Walmart.
Attorney recommended
Plans to try to apply at
Hard to move to another employer w/o closure.
part time helping aunt’s flower business.
Working
Functional there.”
ECF No. 47-13, PageID # 708.
On or about July 22, 2014, Dr. Pien sent Wells Fargo an
updated Medical Certification Form.
12
Dr. Pien certified that Chan
would be unable to work through August 11, 2015, because of
anxiety attacks.
See ECF No. 47-33, PageID # 839-43.
On or about July 24, 2014, Wells Fargo approved unpaid
medical leave through August 1, 2014.
It informed Chan that, if
he needed additional time off, he needed to submit another
medical certification.
See ECF No. 47-32, PageID # 837.
On July 25, 2014, Wells Fargo sent Chan a letter
“reminding” him of the company’s extended leave policy and
stating that, pursuant to that policy, an employee could be on
leave for a maximum of 24 months.
After that time, according to
the policy, Chan was told he would be terminated.
47-34, PageID # 845.
See ECF No.
That same day, Chan’s attorney noted that
Chan had requested a reasonable accommodation, but the e-mail
noting the request did not state what reasonable accommodation
was being sought.
See E-mail from Joseph Rosenbaum to Alyson A.
Smith, ECF No. 52-5, PageID # 976.
Chan says he could have
“returned to work if protected from [his] harassers and those
that retaliated against [him].”
Chan Decl. ¶ 94, ECF No. 52-6,
PageID # 998.
On or about July 28, 2014, Chan’s attorney again
requested what he claimed was a reasonable accommodation, this
time explaining that Chan was seeking more leave under the
Americans with Disabilities Act.
See E-mail from Joseph
Rosenbaum to “leavepr@wellsfargo.com,” ECF No. 52-5, PageID # 975
13
(time-stamped “July 28, 2014, 10:12 AM”); Chan Decl. ¶ 89, ECF
No. 52-6, PageID # 997.
Although Chan says that request was
ignored, id. ¶ 90, Wells Fargo, in a letter dated July 28, 2014,
approved more medical leave for Chan, this time through October
5, 2014.
See ECF No. 47-35, PageID # 849.
On July 31, 2014, Defendants removed the case to this
court.
See ECF No. 1.
On or about September 26, 2014, Dr. Pien certified to
Wells Fargo that Chan would be unable to return to work until
April 4, 2015, given Chan’s anxiety attacks, which would likely
worsen if Chan returned to work.
See ECF No. 47-36, PageID #s
853-55.
On October 5, 2014, Wells Fargo terminated Chan’s
employment.
See Answer to First Amended Complaint ¶ 82, ECF No.
45, PageID # 308 (“Defendant admits that Plaintiff’s employment
was terminated, effective October 5, 2014.”)
III.
SUMMARY JUDGMENT STANDARD.
Summary judgment shall be granted when “the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
R. Civ. P. 56(a) (2010).
Fed.
See Addisu v. Fred Meyer, Inc., 198
F.3d 1130, 1134 (9th Cir. 2000).
A movant must support his
position that a material fact is or is not genuinely disputed by
either “citing to particular parts of materials in the record,
14
including depositions, documents, electronically stored
information, affidavits or declarations, stipulations (including
those made for the purposes of the motion only), admissions,
interrogatory answers, or other materials”; or “showing that the
materials cited do not establish the absence or presence of a
genuine dispute, or that an adverse party cannot produce
admissible evidence to support the fact.”
Fed. R. Civ. P. 56(c).
One of the principal purposes of summary judgment is to identify
and dispose of factually unsupported claims and defenses.
Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).
Summary judgment must be granted against a party that fails to
demonstrate facts to establish what will be an essential element
at trial.
See id. at 323.
A moving party without the ultimate
burden of persuasion at trial--usually, but not always, the
defendant--has both the initial burden of production and the
ultimate burden of persuasion on a motion for summary judgment.
Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102
(9th Cir. 2000).
The burden initially falls on the moving party to
identify for the court those “portions of the materials on file
that it believes demonstrate the absence of any genuine issue of
material fact.”
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp.,
477 U.S. at 323).
“When the moving party has carried its burden
15
under Rule 56(c), its opponent must do more than simply show that
there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574,
586 (1986) (footnote omitted).
The nonmoving party must set forth specific facts
showing that there is a genuine issue for trial.
Serv., Inc., 809 F.2d at 630.
T.W. Elec.
At least some “‘significant
probative evidence tending to support the complaint’” must be
produced.
Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv.
Co., 391 U.S. 253, 290 (1968)).
See Addisu, 198 F.3d at 1134 (“A
scintilla of evidence or evidence that is merely colorable or not
significantly probative does not present a genuine issue of
material fact.”).
“[I]f the factual context makes the non-moving
party’s claim implausible, that party must come forward with more
persuasive evidence than would otherwise be necessary to show
that there is a genuine issue for trial.”
Cal. Arch’l Bldg.
Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468
(9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at
587).
Accord Addisu, 198 F.3d at 1134 (“There must be enough
doubt for a ‘reasonable trier of fact’ to find for plaintiffs in
order to defeat the summary judgment motion.”).
All evidence and inferences must be construed in the
light most favorable to the nonmoving party.
Inc., 809 F.2d at 631.
T.W. Elec. Serv.,
Inferences may be drawn from underlying
16
facts not in dispute, as well as from disputed facts that the
judge is required to resolve in favor of the nonmoving party.
Id.
When “direct evidence” produced by the moving party
conflicts with “direct evidence” produced by the party opposing
summary judgment, “the judge must assume the truth of the
evidence set forth by the nonmoving party with respect to that
fact.”
IV.
Id.
ANALYSIS.
A.
Summary Judgment is Granted in Favor of Wells
Fargo With Respect to Count I (Termination in
Violation of Public Policy).
Count I of the First Amended Complaint asserts a claim
of termination in violation of public policy, recognized by the
Hawaii Supreme Court in Parnar v. Americana Hotels, Inc., 65 Haw.
370, 652 P.2d 625 (1982).
Parnar adopted the “public policy
exception” to the at-will employment doctrine:
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
17
contravenes the letter or purpose of a
constitutional, statutory, or regulatory
provision or scheme.
Id. at 379-80, 652 P.2d at 631 (footnotes omitted).
Wells Fargo argues that the public policy exception to
the at-will doctrine is inapplicable to this case, as Chan was
not terminated because he had complained about Eric Ching’s
trade.
Wells Fargo argues that there is no Parnar claim for
wrongful “demotion” in violation of public policy, for a
discharge based on a work-related injury, or for a discharge in
violation of discrimination laws.
Wells Fargo also argues that
Parnar’s public policy exception is inapplicable because Chan’s
rights based on his complaints are specifically covered by other
laws.
Chan does not oppose summary judgment with respect to
his Parnar claim.
At the hearing on the motion, Chan indicated
that he would not pursue Count 1.
Accordingly, summary judgment
is granted in favor of Wells Fargo with respect to Count I of the
First Amended Complaint because the motion is unopposed and
because Chan fails to make any showing that he has an actionable
claim under Parnar.
B.
Summary Judgment is Denied With Respect to Chan’s
Claim Under Hawaii’s Whistleblower Protection Act.
Count II of the First Amended Complaint asserts that
Wells Fargo violated the Hawaii Whistleblowers’ Protection Act
18
(“HWPA”), section 378-62 of Hawaii Revised Statutes, which
states:
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; or
(B) A contract executed by the State, a
political subdivision of the State, or the
United States,
unless the employee knows that the report is false; or
(2) An employee is requested by a public body
to participate in an investigation, hearing,
or inquiry held by that public body, or a
court action.
Based on the language of the statute, this court has extrapolated
three elements:
First, there must be a showing that the
employee engaged in protected conduct as it
is defined by the HWPA. Second, the employer
is required to take some adverse action
against the employee. Third, there must be a
causal connection between the alleged
retaliation and the whistleblowing. In other
words, to meet the causal connection
requirement, the employer’s challenged action
must have been taken because the employee
engaged in protected conduct.
19
Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1130-31 (D. Haw.
2008) (citations, quotation marks, and alterations omitted).
In Crosby v. State Department of Budget & Finance, 76
Haw. 332, 342, 876 P.2d 1300, 1310 (1994), the Hawaii Supreme
Court essentially adopted the familiar McDonnell Douglas burdenshifting framework for claims under Hawaii’s Whistleblowers’
Protection Act.
Accordingly, a plaintiff can prove retaliation
through direct evidence.
Alternatively, as noted in Crosby, a
plaintiff must demonstrate that the plaintiff’s protected action
played a role in an employer’s challenged action.
The employer
can then defend by affirmatively showing that the challenged
action would have occurred regardless of the protected activity.
The burden of proof, however, always remains with the plaintiff.
Id.
In Black v. Correa, 2008 WL 3845230, *11 (D. Haw. Aug. 18,
2008), a judge of this district expressly applied the McDonnell
Douglas burden-shifting framework to a retaliation claim asserted
under section 378-62.
1.
Prima Facie Case.
This court begins with determining whether Chan has
demonstrated a prima facie case of retaliation under section 37862.
There is a question of fact as to whether Chan engaged in
protected conduct as defined by the HWPA.
were both supervised by McCarthy.
Chan and Eric Ching
Although McCarthy denies it,
Chan says he told McCarthy about what he viewed as a possible
20
illegal trade by Eric Ching.
That alleged conduct would qualify
as a report to Chan’s employer of a suspected violation of law or
regulation.
The court is unpersuaded by Wells Fargo’s argument
that, because Chan did not report the violation to certain
government authorities, Chan did not engage in protected conduct.
Section 378-62 contains no requirement that the suspected
violation be reported to any governmental authority, instead
specifically providing that the report can be made to an
employer.
Additionally, section 378-62 provides that qualifying
conduct includes the situation in which an employee is about to
report a violation.
Clearly, no actual report to a government
authority is necessary for section 378-62 to apply.
Wells Fargo argues that Chan cannot meet the second
element of an HWPA claim–-that Chan suffered an adverse action–because Chan was reassigned to another financial planner with the
same duties and pay.
For purposes of this motion, the court is
unpersuaded by this argument.
In Crosby v. State Department of
Budget & Finance, 76 Haw. 332, 341, 876 P.2d 1300, 1309 (1994),
the Hawaii Supreme court noted that the legislature did not
define “compensation, terms, conditions, location, or privileges
of employment” as used in section 378-62.
The Supreme Court
stated that a “broad reading of the term ‘condition’ in the HWPA
is in accord with legislative intent,” which the court noted was
to provide protection to employees who report suspected
21
violations of law from “any form of retaliation by their
employers.”
Id. (citing Sen. Stand. Comm. Rep. No. 1127, 1987
Senate Journal at 1391).
In Black, Judge Ezra applied the Ninth Circuit’s test
for adverse employment actions in Title VII cases to an HWPA
Citing Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir
claim.
2000), Judge Ezra stated, “an action is cognizable as an adverse
employment action if it is reasonably likely to deter employees
from engaging in protected activity.”
*11.
Black, 2008 WL 3845230,
In Ray, 217 F.3d at 1243, the Ninth Circuit noted that
“lateral transfers, unfavorable job references, and changes in
work schedules” are all likely to deter employees from engaging
in protected activity.
In Fonseca v. Sysco Food Services of
Arizona, Inc., 374 F.3d 840, 847 (9th Cir. 2004), the Ninth
Circuit noted that adverse employment actions include things such
as reducing an employee’s compensation, paying the employee late,
or giving the employee a warning letter or a negative review.
In the present case, there is a question of fact as to
whether Chan suffered an actionable change in compensation,
terms, conditions, location, or privileges of employment for
purposes of his HWPA claim.
It is the jury that must determine
whether the actions taken against Chan were reasonably likely to
deter an employee from engaging in protected conduct.
Chan was
transferred from being the assistant to Eric Ching to being the
22
assistant to Lau.
Although Wells Fargo disputes Chan’s view,
Chan says that working for Lau was less prestigious than working
for Eric Ching.
Chan also says that, had he continued to work
for Lau, his compensation would have been cut because his $800per-month paycheck bonus would have been phased out.
says that his desk was moved.
Chan also
The totality of these actions is
sufficient to create a triable issue as to whether Chan suffered
an actionable change to his compensation, terms, conditions,
location, or privileges of employment.
Chan also raises a question of fact as to causation.
Temporal proximity may be a factor in determining whether a
causal connection exists.
Griffin, 654 F. Supp. 2d at 1131-32.
That is, causation may be inferred when an adverse employment
action occurs “fairly soon after the employee’s protected
expression.”
Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054, 1065 (9th Cir. 2002); Yartzoff v. Thomas, 809 F.2d 1371,
1376 (9th Cir. 1987) (“Causation sufficient to establish the . .
. [causal link] element of the prima facie case may be inferred
from circumstantial evidence, such as the employer’s knowledge
that the plaintiff engaged in protected activities and the
proximity in time between the protected action and the allegedly
retaliatory employment decision.”).
Interpreting the facts in
the light most favorable to Chan, this court concludes that a
reasonable jury could infer causation based on the timing of
23
events.
Chan says that he told McCarthy on June 26, 2012, about
the possible illegal trade.
On July 11, 2012, McCarthy issued
Chan a formal warning for having vented in the copy room and
changed the location of Chan’s workspace.
By late July or early
August, Eric Ching had decided that he wanted a new client
associate.
On August 15, 2012, Herman Ching informed Chan that
Eric Ching no longer wanted to work with Chan.
McCarthy then
transferred Chan to be Lau’s client associate.
Less than two
months separated Chan’s alleged whistleblowing from his transfer.
2.
Legitimate Nondiscriminatory Reason.
Having determined that Wells Fargo is not entitled to
summary judgment on the issue of whether Chan has made out a
prima facie case of retaliation under section 378-62, the court
turns to whether Wells Fargo’s actions were justified by
legitimate nondiscriminatory reasons.
With respect to McCarthy’s decision to relocate Chan to
a different workspace, McCarthy indicated that he did that to
reduce Chan’s involvement with Yamasaki, the employee that Chan
vented about.
This is a sufficient legitimate nondiscriminatory
reason for purposes of this motion.
With respect to Chan’s reassignment to Lau, the court
also determines that, for purposes of this motion, Wells Fargo
demonstrates legitimate nondiscriminatory reasons for its
actions.
Eric Ching says he made the determination to get a new
24
client associate because he wanted one with more regular hours
and one that would complete the work assigned in a timely manner,
as Chan had previously done.
Eric Ching says it is common to
reassign client associates.
3.
Pretext.
Judge J. Michael Seabright of this court has recognized
that the timing of adverse employment actions can sometimes
suffice as circumstantial evidence for both a prima facie case
and evidence of pretext.
See Patrick v. 3D Holdings, LLC, 2014
1094917, *11 (D. Haw. March 18, 2014).
A reasonable jury could
infer from the timing of events that, once Eric Ching found out
that Chan had reported his possible illegal trade to McCarthy,
Eric Ching decided that Chan no longer had his back and that
Ching no longer wanted to work with Chan.
Additionally, Chan
disputes Eric Ching’s characterization of Chan as unreliable.
There is a question of fact as to whether Ching’s statement that
he wanted a more reliable assistant was a pretext for retaliating
against Chan for whistleblowing.
C.
Summary Judgment is Granted in Favor of Wells
Fargo With Respect to Count III–-IIED.
Count III of the First Amended Complaint asserts a
claim of intentional infliction of emotional distress.
To prove
this tort under Hawaii law, a plaintiff must show: “1) that the
act allegedly causing the harm was intentional or reckless,
2) that the act was outrageous, and 3) that the act caused
25
4) extreme emotional distress to another.”
Hac v. Univ. of Haw.,
102 Haw. 92, 106-07, 73 P.3d 46, 60-61 (2003); see also Simmons
v. Aqua Hotels & Resorts, Inc., 130 Haw. 325, 332, 310 P.3d 1026,
1033 (Ct. App. 2013).
“Outrageous” conduct is that “exceeding
all bounds usually tolerated by decent society and which is of a
nature especially calculated to cause, and does cause, mental
distress of a very serious kind.”
Hac, 102 Haw. at 106, 73 P.3d
at 60.
Wells Fargo seeks summary judgment with respect to
Chan’s IIED claim, arguing that Hawaii’s Workers’ Compensation
Statute, section 386-5 of Hawaii Revised Statutes, provides the
exclusive remedy for work-related injuries, including emotional
distress related to work.
Section 386-5 states:
The rights and remedies herein granted to an
employee or the employee’s dependents on
account of a work injury suffered by the
employee shall exclude all other liability of
the employer to the employee, the employee’s
legal representative, spouse, dependents,
next of kin, or anyone else entitled to
recover damages from the employer, at common
law or otherwise, on account of the injury,
except for sexual harassment or sexual
assault and infliction of emotional distress
or invasion of privacy related thereto, in
which case a civil action may also be
brought.
The Hawaii Supreme Court has explained, “Generally, the
workers’ compensation scheme serves to bar a civil action for
physical and emotional damages resulting from work-related
injuries and accidents.”
Nelson v. Univ. of Haw., 97 Haw. 376,
26
393, 38 P.3d 95, 112 (2001).
The Intermediate Court of Appeals
for the State of Hawaii has recognized the “sweeping scope” of
section 386-5, stating, “Under the workers’ compensation statute,
the workers’ compensation benefits provided to an employee on
account of a work injury “shall exclude all other liability of
the employer to the employee . . .” on account of that injury.
Yang v. Abercrombie & Fitch Stores, 128 Haw. 173, 177, 284 P.3d
946, 950 (Ct. App. 2012).
In Yang, a store manager was terminated by Abercrombie
& Fitch after money in a wallet that had been found in the store
had gone missing.
Yang sought and received workers’ compensation
benefits for resulting stress-related injuries.
She then filed
suit against Abercrombie & Fitch for, among other things, IIED.
Id. at 174-75, 284 P.3d at 947-48.
The Intermediate Court of
Appeals held that Yang’s IIED claim was barred by section 386-5,
as it was a personal injury allegedly arising out of and in the
course of Yang’s employment.
Id. at 177, 284 P.3d at 954.
In Kamaka v. Goodsill Anderson Quinn & Stifel, 117 Haw.
92, 109, 176 P.3d 91, 108 (2008), the Hawaii Supreme Court
examined the language of section 386-5, similarly determining
that it
unambiguously provides that claims for
infliction of emotional distress or invasion
of privacy are not subject to the exclusivity
provision when such claims arise from claims
for sexual harassment or sexual assault, in
which case a civil action may be brought.
27
Inasmuch as Kamaka has alleged a claim for
emotional distress, that does not arise out
of sexual harassment or sexual assault, such
claim is, pursuant to HRS § 386–5, barred.
Consistent with this reading of section 386-5, the
Ninth Circuit has ruled that IIED claims arising out of alleged
employment discrimination are barred by section 386-5.
See
Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d
845, 851 (9th Cir. 1990).
Section 386-5 includes narrow exceptions to its
exclusivity, including an exception “for sexual harassment or
sexual assault and infliction of emotional distress or invasion
of privacy thereto.”
The Intermediate Court of Appeals for the
State of Hawaii has interpreted this language, stating that the
legislature has carved out exceptions for claims of “sexual
harassment or sexual assault—-not harassment or assault in
general; infliction of emotional distress related to sexual
assault or sexual harassment--not just any infliction of
emotional distress; [and] invasion of privacy related to sexual
assault or sexual harassment--not invasion of privacy generally.”
Yang, 128 Haw. at 177, 284 P.3d at 950).
The Hawaii Supreme Court, in Furukawa v. Honolulu
Zoological Society, 85 Haw. 7, 936 P.2d 643 (1997), also
recognized that, in connection with a gender and race
discrimination claim brought under section 378-2(1) of Hawaii
Revised Statutes, a plaintiff could seek emotional distress
28
damages.
In so ruling, the Hawaii Supreme Court reversed the
trial court’s determination that section 386-5 barred such
emotional distress damages.
The Hawaii Supreme Court reasoned
that, under section 368-17(a), which pertains to remedies before
the Hawaii Civil Rights Commission, the remedies available
include compensatory and punitive damages, including damages for
injuries and losses caused by a violation of part 1 of chapter
378.
Section 368-17(b) specifically states that section 386-5
does not bar relief for claims filed with the commission.
17-18, 936 P.2d at 653-54.
Id. at
Because the commission could order
compensatory damages, the Hawaii Supreme Court stated that both
the “Commission and the courts clearly have the power to award
compensatory damages, including damages for emotional distress .
. . .”
Id. at 18, 936 P.2d at 654.
In Furukawa, the Hawaii Supreme Court stated that the
trial court had held that section 386-5 “barred Furukawa from
making a claim for emotional distress . . . .”
P.2d at 652-53.
Id. at 16-17, 936
But an examination of the First Amended
Complaint in Furukawa indicates that no independent claim for
emotion distress was asserted by Furukawa.
Complaint asserted only two claims.
The First Amended
In the first, Furukawa
asserted that the Honolulu Zoological Society discriminated
against him based on his race and his gender in violation of
section 378-2(1) and section 368-1 of Hawaii Revised Statutes.
29
In the second, Furukawa asserted that the Honolulu Zoological
Society failed to respond to a written grievance in violation of
the personnel manual such that he was wrongfully terminated.
See
Plaintiff’s First Amended Complaint for Declaratory Relief and
Damages, Civ. No. 92-2037-06 (Nov. 30, 1992).
Accordingly, the
Hawaii Supreme Court’s reference to the trial court decision
barring Furukawa from making a “claim for emotional distress” is
properly read as a reference to emotional distress damages
available to a person making a claim under section 378-2(1) of
Hawaii Revised Statutes, rather than under an independent IIED
claim.
In an unpublished, summary disposition order, the
Intermediate Court of Appeals for the State of Hawaii stated that
“Hawai`i state courts have applied the HRS § 386-5 exclusivity
provisions to IIED claims, unless they arise out of sexual
harassment, assault, or discrimination” claims.
Bolla v. Univ.
of Haw., 2014 WL 80554, *2 (Haw. Ct. App. Jan. 8, 2014).
stating, the court cited Yang, Kamaka, and Furukawa.
In so
The Bolla
decision may have used “sexual” as an adjective modifying not
only “harassment,” but also “assault” and “discrimination.”
Such
a reading would be consistent with Yang, which stated that the
plain language of section 386-5 bars claims unless they relate to
“sexual harassment or sexual assault—-not harassment or assault
in general.”
Yang, 128 Haw. at 177, 284 P.3d at 950.
30
It appears to this court that the only way to reconcile
the state appellate decisions is to read them as barring under
section 386-5 independent IIED claims that are not related to
sex, while not barring emotional distress damages that fall
within the allowable compensatory damages recoverable in
connection with other cognizable claims.
The court recognizes that it has previously noted that
Furukawa might possibly be read as indicating that IIED resulting
from any form of discrimination might escape the bar of section
386-5.
See Jinadasa v. Brigham Young University-Hawaii, 2015 WL
3407832 at *7 (D. Haw. May 27, 2015).
However, the court saw no
need in Jinadasa to actually decide whether section 386-5 barred
Jinadasa’s race discrimination claim.
Saying only that it was
declining at that time to find the claim barred by section 386-5
(not that it was ruling that the claim was so barred), the court
dismissed the IIED claim “[g]iven the bareness of Jinadasa’s
factual allegations.”
Id. at *8.
The court similarly declined to make a definitive
ruling on the scope of section 386-5’s exclusivity bar in
McAllister v. U.S. Veterans Initiative, 2015 WL 2345595 (D. Haw.
May 14, 2015.
In that case, this court questioned without
deciding whether the Hawaii Supreme Court would apply the
exclusivity provision in section 386-5 to disability claims
asserted under section 378-32 of Hawaii Revised Statutes, which
31
generally prohibits adverse employment actions because an
employee suffered a work injury during the course of employment
that is compensable under chapter 386.
The court now determines that Chan’s IIED claim
relating to his section 378-2 claim for disability discrimination
is barred by section 386-5.
Even if that were not so, nothing in
the record indicates that Wells Fargo’s conduct was sufficiently
outrageous to justify damages for an independent II
ED claim.
At most, as described below, Chan asserts a disability
discrimination claim under section 378-2(1) based on Wells
Fargo’s alleged failure to engage in an interactive process that
might have led to a reasonable accommodation allowing him to
return to work.
This is not conduct that “exceed[s] all bounds
usually tolerated by decent society and which is of a nature
especially calculated to cause, and does cause, mental distress
of a very serious kind.”
Hac, 102 Haw. at 106, 73 P.3d at 60.
This does not mean that emotional distress damages are
unavailable to Chan under the lesser standard for such damages
for his other claims.
As in Furukawa, for example, Chan may seek
emotional distress damages for the alleged violation of section
378-2.
D.
Summary Judgment is Granted With Respect to the
Punitive Damage Claim Asserted in Count IV.
Count IV of the First Amended Complaint asserts a
punitive damage claim.
Wells Fargo seeks summary judgment,
32
arguing that there is no such independent tort.
agrees.
This court
In Ross v. Stouffer Hotel Co. (Haw.) Ltd., 76 Haw. 454,
879 P.2d 1037, 1049 (1994), the Hawaii Supreme Court approved of
the statement that “a claim for punitive damages is not an
independent tort, but is purely incidental to a separate cause of
action.”
In Kang v. Harrington, 59 Haw. 652, 660, 587 P.2d 285,
291 (1978), the Hawaii Supreme Court noted that “[a]n award of
punitive damages is purely incidental to the cause of action.”
This court has therefore dismissed or granted summary judgment
with respect to independent claims of punitive damages, noting
that punitive damages are a type of remedy incidental to other
causes of action.
See Liberty Mut. Ins. Co. v. Sumo-Nan LLC,
2015 WL 2449480, *6 (D. Haw. May 2, 2015) (dismissing claim of
punitive damages, but noting that punitive damages may be
available as a remedy for other causes of action); Hale v. Haw.
Publs., Inc., 468 F. Supp. 2d 1210, 1233 (D. Haw. 2006) (granting
motion for summary judgment as to independent claim of punitive
damages, but noting that plaintiff could seek punitive damages as
remedy for other causes of action).
At the hearing, Chan also agreed that he cannot
maintain an independent cause of action for punitive damages.
Accordingly, to the extent the First Amended Complaint asserts an
independent claim of punitive damages, summary judgment is
33
granted in favor of Wells Fargo.
However, Chan may seek punitive
damages to the extent applicable in connection with other counts.
E.
Count V–-Disability Discrimination.
Count V of the First Amended Complaint asserts a
violation of the Americans with Disabilities Act (“ADA”) and
section 378-2 of Hawaii Revised Statutes, specifically alleging
that Wells Fargo denied Chan a reasonable accommodation of
additional medical leave.
Under the ADA, an employer must make “reasonable
accommodations to the known physical or mental limitations of an
otherwise qualified individual with a disability who is an
applicant or employee, unless such covered entity can demonstrate
that the accommodation would impose an undue hardship on the
operation of the business of such covered entity.” 42 U.S.C.
§ 12112(b)(5)(A); see also Kaplan v. City of N. Las Vegas, 323
F.3d 1226, 1232 (9th Cir. 2003); McAllister v. U.S. Veterans
Initiative, 2015 WL 2345595 (D. Haw. May 14, 2015).
The
regulations implementing the ADA make it “unlawful for a covered
entity not to make reasonable accommodation to the known physical
or mental limitations of an . . . employee with a disability,
unless such covered entity can demonstrate that the accommodation
would impose an undue hardship on the operation of its business.”
29 C.F.R. § 1630.9 (2011).
“Once an employer becomes aware of
the need for accommodation, that employer has a mandatory
34
obligation under the ADA to engage in an interactive process with
the employee to identify and implement appropriate reasonable
accommodations.”
Humphrey v. Mem. Hosps. Ass’n, 239 F.3d 1128,
1137 (9th Cir. 2001).
“An appropriate reasonable accommodation must be
effective, in enabling the employee to perform the duties of the
position.”
Id. (quoting Barnett v. U.S. Air, 228 F.3d 1105, 1115
(9th Cir. 2000).
“Employers, who fail to engage in the
interactive process in good faith, face liability for the
remedies imposed by the statute if a reasonable accommodation
would have been possible.”
Id. at 1137-38.
Section 378–2 of Hawaii Revised Statutes similarly
makes it an unlawful discriminatory practice “[f]or any employer
to refuse to hire or employ or to bar or discharge from
employment, or otherwise to discriminate against any individual
in compensation or in the terms, conditions, or privileges of
employment” because of a person’s “race, sex including gender
identity or expression, sexual orientation, age, religion, color,
ancestry, disability, marital status, arrest and court record, or
domestic or sexual violence victim status if the domestic or
sexual violence victim provides notice to the victim’s employer
of such status or the employer has actual knowledge of such
status.”
Haw. Rev. Stat. § 378–2(1)(A).
35
“Hawai`i courts have recognized that the ADA and
Hawai`i disability discrimination laws are similar and the
Hawai`i Supreme Court has expressly adopted the ADA elements of a
prima facie case as the elements of a prima facie H.R.S. § 378–2
case.”
Lovell v. United Airlines, Inc., 728 F. Supp. 2d 1096,
1102 (D. Haw. 2010).
See also French v. Hawaii Pizza Hut, Inc.,
105 Haw. 462, 467, 99 P.3d 1046, 1051 (2004) (“Because of the
similarities between the ADA and our own HRS chapter 378, we
adopt the analysis for establishing a prima facie case of
disability discrimination under HRS § 378–2 that was established
in Sutton v. United Air Lines, Inc., 527 U.S. 471, 119 S. Ct.
2139, 144 L. Ed. 2d 450 (1999).”).
Employers are obligated to consider the particular
circumstances of an employee’s case to determine whether and
under what circumstances an employee may be able to return to
work.
Dark, 451 F.3d at 1090.
Ninth Circuit case law places
this burden on employers, calling it an “affirmative obligation
to engage in an interactive process in order to identify, if
possible, a reasonable accommodation.”
F.3d 1078, 1088 (9th Cir. 2006).
Dark v. Curry Cnty., 451
“Once an employer becomes aware
of the need for accommodation, that employer has a mandatory
obligation under the ADA to engage in an interactive process with
the employee to identify and implement appropriate reasonable
36
accommodations.”
Humphrey v. Mem. Hosp. Ass’n, 239 F.3d 1128,
1137 (9th Cir. 2001).
“The interactive process requires (1) direct
communication between the employer and employee to explore in
good faith the possible accommodations; (2) consideration of the
employee’s request; and (3) offering an accommodation that is
reasonable and effective.”
EEOC v. UPS Chain Solutions, 620 F.3d
1103, (9th Cir. 2010) (quotation marks and citation omitted).
The employer is not required to provide the accommodation that an
employee requests, and is only required to provide “some
reasonable accommodation.”
Id.
When an employer fails to engage
in the interactive process, summary judgment is available to the
employer only when a reasonable factfinder “must conclude that
there would in any event have been no reasonable accommodation
available.”
Dark, 451 F.3d at 1088 (quotation marks and citation
omitted).
In Department of Fair Employment and Housing v. Lucent
Technologies, Inc., 642 F.3d 728, 744 (9th Cir. 2011), the Ninth
Circuit cited with approval a California case holding that a
finite leave of absence is a reasonable accommodation under the
ADA, provided it is likely that, following the leave, the
employee will be able to perform his or her duties.
Similarly,
in Dark, 451 F.3d at 1090, the Ninth Circuit noted that unpaid
medical leave, even extended medical leave or an extension of
37
that leave, may be a reasonable accommodation under the ADA.
The
ADA does not require an employee to demonstrate that such leave
is certain or even likely to be successful.
F.3d at 1136.
See Humphrey, 239
The Ninth Circuit has noted that “recovery time of
unspecified duration may not be a reasonable accommodation
(primarily where the employee will not be able to return to his
former position and cannot state when and under what conditions
he could return to work at all).”
Dark, 451 F.3d at 1090.
Other
circuits agree that “Indefinite leave is not a reasonable
accommodation.”
See, e.g., Amsel v. Texas Water Dev. Bd., 464
Fed. Appx. 395, 400 (5th Cir. 2012); Fiumara v. President &
Fellows of Harvard Coll., 327 Fed. Appx. 212, 213 (1st Cir.
2009); Peyton v. Fred’s Stores of Ark., Inc., 561 F.3d 900, 903
(8th Cir. 2009).
There is a question of fact as to whether Wells Fargo
failed to reasonably accommodate Chan’s medical condition, which,
for purposes of this motion, Wells Fargo is not disputing was a
qualifying disability for purposes of the ADA and section 378-2.
Before he was terminated, but 22 months after he began
his medical leave, Chan’s attorney requested a “reasonable
accommodation” of more unpaid medical leave beyond the 24 months
available under the company’s policy.
Chan says he could have
returned to work if protected from his harassers and those who
retaliated against him.
Wells Fargo did not engage in an
38
interactive process with Chan to determine whether and under what
circumstances Chan might be able to return to work, but it did
extend the leave for a few more months.
Although it may well be
that such an interactive process would have proved fruitless, as
Chan apparently told his treating physician in June and July 2014
that he had to decide whether to resign or be fired and that his
attorney recommended being fired, Wells Fargo has not
demonstrated on this motion that no possible reasonable
accommodation was available.
The record indicates that Chan was able to work in his
aunt’s floral shop, but was having anxiety concerning returning
to work at Wells Fargo.
Because Wells Fargo did not engage in
the interactive process of trying to determine whether there was
some reasonable accommodation available to Chan that would have
allowed him to return to work, and because the record does not
establish as a matter of law that no such reasonable
accommodation was available, summary judgment is denied with
respect to Count V.
V.
See Dark, 451 F.3d at 1088.
CONCLUSION.
The court grants Wells Fargo’s motion for summary
judgment with respect to Count I (termination in violation of
public policy claim), Count III (IIED claim), and Count IV
(punitive damage claim).
The court denies the motion with
respect to Count II (retaliation in violation of section 378-62
39
claim) and Count V (disability discrimination claim under section
378-2 and the ADA).
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, August 24, 2015.
/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge
Chan v. Wells Fargo Advisors, LLC, Civ. No. 14-00344 SOM/KSC; ORDER GRANTING IN PART
AND DENYING IN PART MOTION FOR SUMMARY JUDGMENT
40
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