Jinadasa v. Schlag et al
Filing
74
ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOURTH AMENDED COMPLAINT 65 - Signed by JUDGE SUSAN OKI MOLLWAY on 1/25/2016. "Defendants' motion to dismiss is granted in part and denied in part. The only claims remaining for adjudication are: (1) Jinadasa's disparate treatment gender and race discrimination claims based on Mindy Clark's being paid more and receiving less discipline than Jinadasa under Title VII, Title IX, and & #167; 1981, asserted in Counts I, III, IV; and (2) Jinadasa's retaliation claim under Title VII, asserted in Count II." (emt, )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). Jinendra Jinadasa served by first class mail at the address of record on January 25, 2016.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
JINENDRA JINADASA,
)
)
Plaintiff,
)
)
vs.
)
)
BRIGHAM YOUNG UNIVERSITY)
HAWAII, et al.,
)
)
Defendants.
)
_____________________________ )
CIVIL NO. 14-00441 SOM/BMK
ORDER GRANTING IN PART AND
DENYING IN PART MOTION TO
DISMISS FOURTH AMENDED
COMPLAINT
ORDER GRANTING IN PART AND DENYING IN PART
MOTION TO DISMISS FOURTH AMENDED COMPLAINT
I.
INTRODUCTION.
Defendant Brigham Young University-Hawaii (“BYU
Hawaii”) moves to dismiss Plaintiff Jinendra Jinadasa’s Fourth
Amended Complaint.
part.
The motion is granted in part and denied in
The court also strikes Jinadasa’s untimely supplemental
memorandum in opposition to the motion, ECF No. 70.
See Local
Rule 7.4 (“Any opposition or reply that is untimely filed may be
disregarded by the court or stricken from the record.
No further
or supplemental briefing shall be submitted without leave of
court.”).
II.
FACTUAL BACKGROUND.
Jinadasa, who is proceeding pro se, is a Web Architect
at BYU Hawaii.
See ECF No. 61, PageID # 515.
Jinadasa alleges
that he is the “only African, black (dark skinned hue color)
administrative staff” member at BYU Hawaii and that he is from
Ethiopia, Africa.
See id. ¶¶ 3, 10, PageID # 517, 519.
In his Fourth Amended Complaint, filed on November 12,
2015, Jinadasa asserts claims of (a) sex discrimination in
violation of Title IX, 20 U.S.C. § 1981 (Counts I and III);
(b) race discrimination in violation of 42 U.S.C. § 1981 (Counts
I and III); (c) unlawful retaliation in violation of Title VII,
42 U.S.C. § 2000 (Count II); (d) race, color, and national origin
discrimination in violation of Title VII, 42 U.S.C. § 2000
(Count IV); (e) violation of civil and constitutional rights
(Count V); and (f) intentional infliction of emotional distress
(Count VI).
III.
STANDARD.
The standard of review for a motion to dismiss was set
forth in this court’s order of May 27, 2015.
3407832, *1-*2.
See 2015 WL
That standard is incorporated herein by
reference.
IV.
ANALYSIS.
A.
The Court Declines to Dismiss the Fourth Amended
Complaint As Untimely.
At the hearing on the Motion to Dismiss the Third
Amended Complaint, the court gave Jinadasa leave to file a Fourth
Amended Complaint provided the court received the document no
later than November 10, 2015.
BYU Hawaii asks this court to
dismiss the Fourth Amended Complaint because Jinadasa did not
2
file it until November 12, 2015, two days past the deadline.
Although Jinadasa has not advanced any valid reason for having
flouted court rules and court deadlines, the court declines BYU
Hawaii’s invitation to rely on Jinadasa’s failure to file his
Fourth Amended Complaint on time as a reason to dismiss this
action.
Under the circumstances of this case, dismissal appears
to be a disproportionate sanction.
While declining to dismiss the Fourth Amended Complaint
as untimely, the court stresses that Jinadasa must in the future
follow court rules and deadlines to the letter or face adverse
consequences, including but not limited to the dismissal of this
action or the granting of motions.
B.
Jinadasa Lacks Standing to Assert Claims on Behalf
of Others.
As an initial matter, the court dismisses any claim
Jinadasa may be asserting on behalf of others.
This
jurisdictional determination that Jinadasa lacks standing to
assert claims of others is required by Article III, section 2, of
the Constitution, which confines federal courts to deciding cases
or controversies.
To qualify for adjudication by a federal court, a
plaintiff must show that an actual controversy exists at all
stages of the case.
See Arizonans for Official English v.
Arizona, 520 U.S. 43, 63 (1997).
No case or controversy exists
if a plaintiff lacks standing to make the claims asserted.
3
See
White v. Lee, 227 F.3d 1214, 1242 (9th Cir. 2000) (stating that
standing pertains to a federal court’s subject matter
jurisdiction).
To have standing to maintain a claim, Jinadasa
must demonstrate: (1) an injury in fact--an invasion of a legally
protected interest that is concrete and particularized, as well
as actual or imminent, not conjectural or hypothetical; (2) a
causal relationship between the injury and the challenged
conduct--an injury that is fairly traceable to the challenged
action of the defendant, and not the result of the independent
action of some third party not before the court; and (3) a
likelihood, not mere speculation, that the injury will be
redressed by a favorable decision.
Lujan v. Defenders of
Wildlife, 504 U.S. 555, 560-61 (1992).
This court has already explained to Jinadasa that he
may not assert claims belonging to others:
In his prayer for relief, Jinadasa requests
that this court issue a permanent injunction
“urging the defendants and Brigham Young
University–Hawaii from employment practices
or retaliations that discriminates against
blacks, polynesians, women, and other
non-caucasian minorities at the university.”
ECF No. 29, PageID # 109. Jinadasa lacks
standing to pursue such relief. See Patee v.
Pac. Nw. Bell Tel. Co., 803 F.2d 476, 478–79
(9th Cir. 1986) (employees lack standing to
bring Title VII suit based on discrimination
against others); Sidari v. Orleans Cnty., 174
F.R.D. 275, 285 (W.D.N.Y. 1996) (striking
plaintiff’s request for relief on behalf of
“other persons similarly situated” based on
lack of standing).
4
Jinadasa v. Brigham Young Univ.-Hawaii, 2015 WL 3407832, at *8
(D. Haw. May 27, 2015).
The court therefore dismisses any claim
that Jinadasa may be asserting on behalf of others.
Whether any such claim is being asserted is actually
unclear.
However, to the extent Jinadasa is attempting to assert
claims on behalf of others, he may not do so.
These claims might
include, if asserted: (1) claims that Polynesians and other
minorities were not selected for jobs or were “talked down” to
(see Fourth Amended Complaint ¶¶ 12-13, 15, 36-37, ECF No. 61,
PageID # 519-20, 526); (2) claims that Polynesians were demoted
and kicked out of BYU Hawaii housing (see id. ¶ 14, PageID
# 520); (3) claims that Polynesians are underrepresented at the
management level, were terminated, or received less favorable
termination packages (see id. ¶¶ 20, 29, 45, PageID # 521, 524,
527-28); (4) claims that a friend from the Philippines was being
paid less than less-qualified Caucasian employees (see id. ¶ 22,
PageID # 522); and (5) a prayer for relief in the form of the
publishing of all job postings to ensure that “Polynesians,
blacks, and other minorities” are not taken advantage, to the
extent the prayer is seeking relief for others (see id., Prayer
for Relief ¶ P, PageID # 538-39).
The court has attempted to discern whether Jinadasa is
attempting to plead a class action.
Given the total lack of even
a rudimentary description of a class that includes both Jinadasa
5
and others, as well as Jinadasa’s inability to act as counsel for
the class, the court is not treating this as a class action.
C.
The Fourth Amended Complaint Asserts a Viable
Disparate Treatment Race Discrimination Claim, but
The Statute of Limitations Has Run on Any
Title VII Claim Arising Before December 9, 2010.
In the Fourth Amended Complaint, Jinadasa asserts that
he suffered race discrimination in violation of 42 U.S.C. § 1981
(Counts I and III) and race, color, and national origin
discrimination in violation of Title VII, 42 U.S.C. § 2000
(Count IV).
At the hearing on BYU Hawaii’s motion to dismiss
Jinadasa’s Third Amended Complaint, Jinadasa clarified that,
although that complaint mentioned national origin and color
discrimination, he was asserting only race discrimination claims.
See ECF No. 63, PageID # 554.
Notwithstanding this statement, at
the hearing on the present motion, Jinadasa indicated that he
wants to proceed with Title VII disparate treatment claims based
on race and national origin, but not separately on color.
In relevant part, § 1981 prohibits race discrimination
in the making and enforcement of contracts.
Title VII similarly
prohibits discrimination based on race, color, religion, sex, or
national origin:
(a) It shall be an unlawful employment
practice for an employer -(1) to fail or refuse to hire or to
discharge any individual, or otherwise
to discriminate against any individual
with respect to his compensation, terms,
6
conditions, or privileges of employment,
because of such individual’s race,
color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2.
A prima facie case of disparate treatment requires a
plaintiff to establish: (1) the plaintiff is a member of a
protected class; (2) the plaintiff was qualified; (3) the
plaintiff suffered an adverse employment decision; and
(4) employees outside the protected class with comparable
qualifications and work records did not suffer similar adverse
employment decisions.
See, e.g., White v. Pac. Media Grp., Inc.,
322 F. Supp. 2d 1101, 1110 (D. Haw. 2004).
A plaintiff must
demonstrate that his or her situation is similar to that of
employees who received more favorable treatment in all material
respects.
See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006).
However, “a plaintiff is not obligated to show disparate
treatment of an identically situated employee.”
McGuinness v.
Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (cited approvingly
in Selig).
Instead, “individuals are similarly situated when
they have similar jobs and display similar conduct.”
Hawn v.
Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1160 (9th Cir. 2010) (citing
Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th Cir.
2003) (finding employee not similarly situated if he “did not
engage in problematic conduct of comparable seriousness” to
Plaintiff’s conduct)).
7
The Supreme Court has held that Title VII’s prohibition
on discrimination “not only covers ‘terms’ and ‘conditions’ in
the narrow sense, but evinces a congressional intent to strike at
the entire spectrum of disparate treatment of men and women in
employment.”
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.
75, 78 (1998) (quotation marks and citation omitted).
The Ninth
Circuit defines “adverse employment action” broadly.
See Fonseca
v. Sysco Food Servs. of Arizona, Inc., 374 F.3d 840, 847 (9th
Cir. 2004).
However, not every employment decision is an adverse
employment action.
For example, ostracism is not, by itself,
enough to show an adverse employment decision.
See Strother v.
S. California Permanente Med. Grp., 79 F.3d 859, 869 (9th Cir.
1996).
Instead, the Ninth Circuit has stated that adverse
employment actions must materially affect the compensation,
terms, conditions, or privileges of employment.
See Davis v.
Team Elec. Co., 520 F.3d 1080, 1089 (9th Cir. 2008) (quotation
marks and citations omitted).
Thus, assigning more or more
burdensome work may be an adverse employment action.
Id.
Similarly, a reduction in pay, transfer of job duties, or
undeserved performance ratings may also be an adverse employment
action.
See Fonseca, 374 F.3d at 847.
In the order of May 27, 2015, the court found that the
Second Amended Complaint insufficiently asserted a Title VII
disparate treatment claim based on contentions that BYU Hawaii
8
had subjected Jinadasa to adverse employment actions by denying
him: (1) equal compensation; (2)“advancement opportunities”;
(3) “employee awards”; (4)“proper access to web server and
tools”; (5) the opportunity to attend conferences on the U.S.
mainland; (6) exclusion from meetings and “technical procedures”;
(7) exclusion from office parties; and (8) lack of response to
“technical requests and communications.”
The court ruled:
Jinadasa’s allegations that he was denied
employee awards, denied proper access to a
web server and unspecified “tools,” excluded
from office parties, and ignored in his
“technical requests and communications” do
not provide a sufficient basis for this court
to infer that Jinadasa was subject to an
adverse employment action. No allegations in
the Second Amended Complaint suggest that
those actions caused “a material employment
disadvantage, such as a tangible change in
duties, working conditions or pay.”
Jinadasa v. Brigham Young Univ.-Hawaii, 2015 WL 3407832, at *4
(D. Haw. May 27, 2015).
With respect to Jinadasa’s contention that he was
denied advancement opportunities, denied the opportunity to
attend conferences on the mainland, and excluded from “key
decision making meetings” and “technical procedures that affected
[his] job responsibilities,” the court noted that these things
may concern adverse employment actions, but ruled that Jinadasa
had failed to provide sufficient factual information regarding
9
those alleged actions and their effect on his compensation,
terms, conditions, or privileges of employment.
Id. at *5.
The court additionally noted that Jinadasa’s contention
that he was denied equal compensation stated an adverse
employment action.
However, because the Second Amended Complaint
did not allege that Jinadasa was treated less favorably than
similarly situated employees outside of Jinadasa’s protected
class, the court determined that the Second Amended Complaint did
not allege a viable disparate impact claim based on unequal
compensation.
Id. *5-*6.
In the motion to dismiss the Fourth Amended Complaint
now before this court, BYU Hawaii argues that Jinadasa’s claims
are time-barred and that the allegations of disparate treatment
are still insufficient to allege a viable claim.
1.
Jinadasa’s Title VII Claims Are Time-Barred
If They Arise Out of Conduct Occurring Before
December 9, 2010.
Before considering Jinadasa’s substantive Title VII
claims, the court addresses BYU Hawaii’s argument that the
statute of limitations bars claims arising out of events that
occurred more than 300 days before Jinadasa’s filing of a charge
with the Equal Employment Opportunity Commission (“EEOC”).
“Title VII contains several distinct filing requirements which a
claimant must comply with in bringing a civil action.”
Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir. 1986),
10
as amended by 815 F.2d 570 (9th Cir. 1987).
A plaintiff must
first exhaust administrative remedies before bringing a Title VII
claim in this court.
See Sommatino v. United States, 255 F.3d
704, 707 (9th Cir. 2001).
A plaintiff does this by filing an
administrative charge with the EEOC.
When a person also files a
charge with a state or local agency, the EEOC charge must be
filed “within three hundred days after the alleged unlawful
employment practice occurred.”
42 U.S.C. § 2000e–5(e)(1).
See
EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000)
(“Although ordinarily the administrative charge must be filed
within 180 days of the alleged unlawful employment practice, the
deadline is extended to 300 days if the charge is initially filed
with a state agency that enforces its own anti-discrimination
laws.”).
This period is not jurisdictional.
as a limitations period.
Instead, it serves
See Zipes v. Trans World Airlines,
Inc., 455 U.S. 385, 393 (“We hold that filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute
of limitations, is subject to waiver, estoppel, and equitable
tolling.”).
The court takes judicial notice of the original
administrative charge that Jinadasa filed with the EEOC and the
Hawaii Civil Rights Commission on October 5, 2011.
11
See ECF No.
65-3.
There is no dispute that 300 days before that date was
December 9, 2010.
Additionally, Jindadasa has not asserted that
the limitation period should have been tolled or that there is
any other reason to include prior acts, such as in connection
with a continuing hostile work environment claim.
With respect
to Jindasa’s claims for “discrete discriminatory acts,” the court
is governed by the Supreme Court’s holding that such acts “are
not actionable if time barred, even when they are related to acts
allegedly in timely filed charges . . . .
The charge, therefore,
must be filed within the 180– or 300–day time period after the
discrete discriminatory act occurred.”
Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 113 (2002).
The court therefore concludes that Jinadasa’s Title VII
claims arising before December 9, 2010, are time-barred.
This
includes claims arising out of:
(1) BYU Hawaii’s selection of someone other than
Jinadasa to become the Director of Communication in 2008.
Fourth
Amended Complaint ¶ 16, ECF No. 61, PageID # 520;
(2) John Call’s alleged receipt of a $10,000 raise and
trips to training courses in or before 2008, while Jinadasa “was
denied training trips” in 2009.
Id. ¶¶ 18-19, PageID # 521;
(3) Jinadasa’s compensation of $30,000 less than Brian
Jameson in 2009, to the extent such a claim seeks damages for the
period before December 9, 2010.
Id. ¶ 23, PageID # 522.
12
To the extent the Fourth Amended Complaint asserts
causes of action arising out of conduct in 2010, those claims are
not barred on the face of the allegations in the Fourth Amended
Complaint.
The court cannot tell from the four corners of that
document whether the conduct occurred before or after December 9,
2010.
Whether such claims are time-barred may well be the
subject of a motion for summary judgment.1
2.
Disparate Treatment Claims.
a.
Unequal Pay Claims Based on Mindy
Clark’s Compensation May Proceed.
To the extent Jinadasa asserts a Title VII disparate
treatment claim of unequal pay based on Bryan Jameson’s
compensation, the Fourth Amended Complaint lacks sufficient
factual detail to make such a claim plausible.
The Fourth
Amended Complaint lacks any specific allegation of Jameson’s
national origin.
At most, it alleges in paragraph 23 that
Jameson, a Caucasian, was paid twenty to thirty thousand dollars
more than Jinadasa was paid.
See ECF No. 61, PageID # 522.
But
at the hearing on October 26, 2015, Jinadasa admitted that
Jameson’s “position was not comparable to mine.”
PageID # 555.
ECF No. 63,
Because the Fourth Amended Complaint does not
allege that Jameson is similarly situated to Jinadasa, disparate
1
Of course, even if claims are time-barred, evidence
relating to time-barred claims may remain admissible in
connection with timely claims under certain circumstances.
13
treatment claims based on race and national origin with respect
to Jameson are dismissed.
To the extent Jinadasa asserts a Title VII disparate
treatment claim of unequal pay based on sex and race, that claim
survives the present motion to dismiss.
The Fourth Amended
Complaint alleges that, in 2010, Jinadasa “came across a pay stub
for a Caucasian co-worker Mindy Clark who was being paid $15K
more than the plaintiff.
Mrs. Clark had lower education, lower
seniority, poor work performance, smaller responsibilities, and
less work experience than the plaintiff.”
# 523.
ECF No. 61, PageID
Jinadasa says that Clark was similarly situated to him.
Id., PageID # 522.
These allegations sufficiently allege a Title
VII disparate treatment claim of unequal pay based on sex and
race.
It differs from the claim in the Second Amended Complaint
that was dismissed because it identifies the employee who is
allegedly similarly situated to Jinadasa.
Because it lacks any
allegation as to Clark’s national origin, however, it
insufficiently asserts a claim of national origin discrimination
with respect to her.
At the hearing on the motion to dismiss, the court
asked Jinadasa to identify any other factual allegation of sex
discrimination.
He identified paragraph 60 of the Fourth Amended
Complaint as alleging sex discrimination.
But that paragraph
only alleges that BYU Hawaii “advanced white females without
14
master’s degree to management position and gave them higher pay
despite lack of education, experience, and technical skills.”
ECF No. 61, PageID # 531.
It does not allege that Jinadasa even
applied for any of those positions such that discrimination could
possibly be inferred through unequal treatment of similarly
situated persons.
As noted above, Jindasa lacks standing to
pursue claims of others, such as other individuals who applied
for those positions.
To the extent BYU Hawaii believes that Clark and
Jinadasa were not similarly situated, it may bring a motion for
summary judgment to that effect, which would allow the court to
examine evidence of both individuals’ actual experience and
positions at BYU Hawaii.
BYU Hawaii argued at the hearing that Jinadasa’s Title
VII sex discrimination claims should be dismissed as unexhausted.
As the court noted in its order of May 27, 2015, ECF No, 51,
PageID # 388, Jinadasa should have considered whether he failed
to exhaust the sex discrimination claim before proceeding with
it.
The court made that statement because neither of Jinadasa’s
Charges of Discrimination included checkmarks in the boxes
indicating whether he was pursuing a sex discrimination claim.
See ECF No. 65-3 and 65-4.
However, because the motion to
dismiss did not clearly raise the issue, the court leaves for
15
another motion the issue of whether the sex discrimination claims
were properly exhausted.
b.
Unequal Discipline Claims May Proceed.
The Fourth Amended Complaint alleges that, in 2012,
Jinadasa was suspended and banned from campus based on alleged
violations of the university’s Honor Code.
Complaint ¶ 31, ECF No. 61, PageID # 524.
See Fourth Amended
It further alleges
that “Caucasians and others who had committed more serious
offenses were never disciplined.”
Id.
It specifically alleges
that Mindy Clark, a similarly situated female Caucasian employee,
violated the Honor Code and used profanity but was not subjected
to any discipline.
Id. ¶ 24, PageID # 522.
This allegation
sufficiently alleges a disparate treatment claim of unequal
discipline based on sex and race to survive the present motion to
dismiss.
Again, however, the court is not here reaching the
issue of whether Jinadasa’s sex discrimination claim has been
properly exhausted.
c.
Any Claim Based on BYU Hawaii’s Failure
to Promote Jinadasa to Director of
Enterprise Information Systems Is
Dismissed.
Jinadasa alleges that, in 2010, he applied for the
position of Director of Enterprise Information Systems, a
position Jinadasa was qualified for.
Id. ¶ 26, PageID # 523.
Jinadasa says that he was not hired for the position.
Instead,
the position went to Norman Black, who allegedly had a close
16
friendship with the person heading the search committee for that
position and who allegedly did not meet the minimum
qualifications for the position.
Id.
Jinadasa may not maintain
a disparate treatment claim based on these factual allegations
because he does not allege that Norman Black was hired as the
Director of Enterprise Information Systems in a manner that
involved impermissible discrimination.
The Fourth Amended
Complaint does not identify Norman Black’s race or national
origin and it appears that Jinadasa and Norman Black are the same
gender.
At most, Jinadasa complains that Norman Black’s
friendship with someone on the hiring committee affected an
employment decision.
That is not a matter within the scope of
Title VII.
d.
Jinadasa’s Claim Based on BYU Hawaii’s
Decisions Concerning “Lead” Positions Is
Dismissed.
Paragraph 30 of the Fourth Amended Complaint alleges
that Norman Black, in 2011, “had made Kimber Brothers lead over
Project Management and Mr. Jameson lead on the server
infrastructure.
The plaintiff was concerned that management and
advancement opportunities were not being given to minorities such
[as] plaintiff and other non-Caucasian employees.”
PageID # 524.
ECF No. 61,
These factual allegations are insufficient to
state a viable claim of disparate treatment in violation of Title
17
VII because Jinadasa does not allege that he was qualified for
the positions or that he even applied for the positions.
e.
Jinadasa’s Claim That He Was Not Invited
To Parties Is Dismissed.
Paragraph 33 of the Fourth Amended Complaint alleges
that, in 2013, Jinadasa was not invited to office parties.
is not sufficient to state an adverse employment action.
This
See
Strother, 79 F.3d at 869 (ostracism is not, by itself, enough to
show an adverse employment decision).
Jinadasa does not allege
in the Fourth Amended Complaint that the office parties were
financed by BYU Hawaii or affected the compensation, terms,
conditions, or privileges of employement.
In the court’s order
dismissing the Second Amended Complaint, the court determined
that Jinadasa’s mere reference to not being invited to office
parties was not an adverse employment action.
See Jinadasa v.
Brigham Young Univ.-Hawaii, 2015 WL 3407832, at *4 (D. Haw. May
27, 2015).
While this court can certainly imagine circumstances
in which being excluded from certain work-related events might
constitute an adverse employment action, Jinadasa does not
include sufficient allegations indicating that in the Fourth
Amended Complaint.
He therefore cannot be said to offer any
reason for this court to reconsider its prior determination on
this point.
18
f.
Claim Based on Being Omitted From Key
Decision Meetings or Being Denied Tools
and Access to Web Servers Are Dismissed.
In dismissing Jinadasa’s Second Amended Complaint, the
court noted that being excluded from “key decision making
meetings” and not having access to web servers and tools might
concern adverse employment actions, but ruled that Jinadasa had
failed to provide sufficient factual information supporting those
allegations and their effect on his compensation, terms,
conditions, or privileges of employment.
Jinadasa v. Brigham
Young Univ.-Hawaii, 2015 WL 3407832, at *5 (D. Haw. May 27,
2015).
Jinadasa fails to provide any more detail in his Fourth
Amended Complaint, which, in Paragraph 33, realleges the same
facts with no more supporting detail.
For the reasons set forth
in the court’s previous order, Jinadasa may not now proceed with
a disparate treatment claim based on his exclusion from meetings,
and being denied use of web servers and tools.
g.
The Claim Based on Being Placed in
Stressful Situations Is Dismissed.
In Paragraph 8 of the Fourth Amended Complaint,
Jinadasa complains that BYU Hawaii placed him in stressful
situations.
Without more factual detail, that allegation is
insufficient to allege an adverse employment action.
See Baird
v. Outlook Pointe, 2008 WL 4287382, at *16 (M.D. Pa. Sept. 17,
2008) (stating that Title VII “does not mandate a happy,
pleasant, or stress-free work environment”).
19
D.
Jinadasa Asserts a Viable Sex Discrimination Claim
Under Title IX.
Title IX provides in pertinent part that “[n]o person
in the United States shall, on the basis of sex, be excluded from
participation in, be denied the benefits of, or be subjected to
discrimination under any education program or activity receiving
Federal financial assistance. . . .”
20 U.S.C. § 1681.
In other
words, “Title IX prohibits gender discrimination by educational
institutions receiving federal assistance.”
Stucky v. Hawaii
Dep't of Educ., 2007 WL 602105, at *6 (D. Haw. Feb. 15, 2007).
Accordingly, Title IX sex discrimination claims differ from Title
VII sex discrimination claims in that Title IX claims
additionally require a plaintiff to demonstrate the receipt of
federal financial assistance.
See Davis v. Team Elec. Co., 520
F.3d 1080, 1089 (9th Cir. 2008).
Other than for that additional element, courts look to
Title VII when reviewing claims under Title IX.
See Ollier v.
Sweetwater Union High Sch. Dist., 768 F.3d 843, 867 (9th Cir.
2014) (noting that Supreme Court has often looked to Title VII in
interpreting Title IX); Oona R.-S.- by Kate S. v. McCaffrey, 143
F.3d 473, 477 (9th Cir. 1998) (applying Title VII standards to
hostile work environment claims under Title IX).
That is, the
relevant analysis to be followed in connection with alleged
employment discrimination on the basis of sex under Title IX is
similar to that followed in Title VII.
20
See, e.g., Johnson v.
Baptist Med. Ctr., 97 F.3d 1070, 1072 (8th Cir. 1996) (“when a
plaintiff complains of discrimination with regard to conditions
of employment in an institution of higher learning, the method of
evaluating Title IX gender discrimination claims is the same as
those in a Title VII case”); Murray v. N.Y. Univ. College of
Dentistry, 57 F.3d 243, 248 (2d Cir. 1995) (“In reviewing claims
of discrimination brought under Title IX by employees, whether
for sexual harassment or retaliation, courts have generally
adopted the same legal standards that are applied to such claims
under Title VII.”).
Jinadasa does allege that BYU Hawaii receives federal
funds in the form of federal aid for enrolled students.
No. 61, PageID # 515.
See ECF
To allege a viable disparate treatment
gender discrimination claim under Title IX, Jinadasa must also
allege facts showing that his “employer acted with conscious
intent to discriminate.”
Costa v. Desert Palace, Inc., 299 F.3d
838, 854 (9th Cir. 2002).
Jinadasa’s Fourth Amended Complaint
does not assert sex discrimination based on direct evidence of
discrimination.
It instead is based on circumstantial evidence
that a similarly situated female was allegedly treated more
favorably than Jinadasa with respect to terms of employment.
Chuang v. Univ. of California Davis, Bd. of Trustees, 225 F.3d
See
1115, 1123 (9th Cir. 2000) (stating that prima facie case of
disparate treatment under Title VII requires plaintiff to
21
demonstrate that “(1) he belongs to a protected class; (2) he was
qualified for the position; (3) he was subject to an adverse
employment action; and (4) similarly situated individuals outside
his protected class were treated more favorably”).
The Fourth Amended Complaint alleges that an allegedly
similarly situated female employee, Mindy Clark, was treated more
favorably than Jinadasa.
Specifically, it alleges that she was
not disciplined for using profanity, a violation of the
university’s Honor Code, and was paid $15,000 more than Jinadasa.
Jinadasa alleges that he was banned from campus for having
allegedly violated the university’s Honor Code.
¶¶ 24, 25, 31, PageID #s 522-25.
See ECF No. 61
As discussed above with respect
to Title VII sex discrimination claims, these allegations are
sufficient to assert a viable Title IX sex discrimination claim.
E.
Jinadasa States a Claim Against BYU Hawaii
for Retaliation in Violation of Title VII.
Title VII makes it unlawful for an employer “to
discriminate against any individual . . . because he has opposed
any practice made an unlawful employment practice by this
subchapter, or because he has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.”
42 U.S.C.A. § 2000e-3.
A
plaintiff establishes a prima facie case of retaliation by
showing that: (1) he engaged in a protected activity; (2) he
suffered an adverse employment action; and (3) there was a causal
22
connection between the two.
Surrell v. Cal. Water Serv. Co., 518
F.3d 1097, 1108 (9th Cir. 2008).
In the order of May 27, 2015, the court addressed
Jinadasa’s retaliation claim.
An adverse employment action for
purposes of a retaliation claim is broader than for purposes of a
disparate treatment claim, in that in a retaliation claim the
adverse employment action need only be “reasonably likely to
deter employees from engaging in protected activity.”
Vasquez v.
Cnty. of Los Angeles, 349 F.3d 634, 646 (9th Cir. 2003).
This
court accordingly determined earlier that the Second Amended
Complaint sufficiently alleged adverse employment actions in the
form of Jinadasa’s being allegedly (1) banned from the BYU Hawaii
campus; (2) barred from attending a worship service; (3) barred
from attending a family wedding on the BYU Hawaii campus; and
(4) singled out for violation of BYU Hawaii policy while more
severe violations by others were ignored.
3407832, at *6.
Jinadasa, 2015 WL
The court concluded, however, that the Second
Amended Complaint did not sufficiently allege a claim because
nothing in the pleading provided a causal connection between the
adverse employment actions and the filing of his charges of
discrimination.
Id.
The Fourth Amended Complaint cures that deficiency.
adds purported additional adverse employment actions: (5) being
It
given bad reviews; (6) denied training trips and awards; (7)
23
being yelled at; and (8) being left out of key decision making.
See ECF No. 61, PageID # 516.
The Fourth Amended Complaint also
alleges that Jinadasa was not invited to parties.
The Ninth
Circuit has held that ostracism is not an adverse employment
action for purposes of Title VII retaliation claims.
See Brooks
v. City of San Mateo, 229 F.3d 917, 929 (9th Cir. 2000) (stating
with respect to Title VII retaliation claim, “Because an employer
cannot force employees to socialize with one another, ostracism
suffered at the hands of coworkers cannot constitute an adverse
employment action.”); see also Cooper v. S. Cal. Edison Co., 170
F. App'x 496, 498 (9th Cir. 2006).
Jinadasa alleges that after he filed his charge of
discrimination, he was
unlawfully disciplined, retaliated against by
being suspended and banned from campus for 1
week. Was subjected to disparate treatment
by not being included in key decision making
that affected the Plaintiff’s job
responsibilities, not invited to office
parties, put in stressful situations, denied
employee awards and his communications not
responded to.
Id., PageID # 518.
In the Fourth Amended Complaint, although Jinadasa does
not allege the dates on which he allegedly suffered the
discrimination with particularity, his allegation of retaliation
in response to his filing of a charge with the EEOC is sufficient
to survive the present motion to dismiss.
24
A reasonable inference
can be drawn that Jinadasa allegedly suffered at least some
adverse employment action because he had filed his Charge of
Discrimination.
That is sufficient to survive a motion to
dismiss, especially when the plaintiff is proceeding pro se and
when the November 2012 Charge of Discrimination identifies the
time period as having been “immediately” after BYU Hawaii
completed its investigation into Jinadasa’s EEOC complaint.
See
ECF No. 65-4, PageID # 630.
In ruling on the present motion, the court is not
considering the detail in the Charge of Discrimination as
supplementing the factual detail in the Fourth Amended Complaint,
and notes the facts alleged in the Charge of Discrimination only
to show that BYU Hawaii does have actual notice of the alleged
causal connection.
Given the number of times Jinadasa has
amended his Complaint, the court does not believe that forcing
him to file another amended complaint will serve any purpose
other than to delay the adjudication of the merits of this
action.
F.
Jinadasa’s Claim of Intentional Infliction of
Emotional Distress is Barred by the
Exclusivity Provision of Hawaii’s Workers’
Compensation Statute.
Count VI of the Fourth 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,
25
2) that the act was outrageous, and 3) that the act caused
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.
BYU Hawaii seeks dismissal of Jinadasa’s intentional
infliction of emotional distress 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
26
physical and emotional damages resulting from work-related
injuries and accidents.”
Nelson v. Univ. of Haw., 97 Haw. 376,
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) (quotation marks, alterations, and
citation omitted).
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,
intentional infliction of emotional distress.
P.3d at 947-48.
Id. at 174-75, 284
The Intermediate Court of Appeals held that
Yang’s intentional infliction of emotional distress 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
27
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.
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 intentional infliction of emotional
distress 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).
While there are exceptions to section 386-5’s
exclusivity, they are narrow.
The Intermediate Court of Appeals
for the State of Hawaii has examined the language excepting from
the exclusivity provision any claim “for sexual harassment or
sexual assault and infliction of emotional distress or invasion
of privacy thereto.”
According to the ICA, 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.”
28
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
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 employment discrimination
actionable under part 1 of chapter 378.
Section 368-17(b)
specifically states that section 386-5 does not bar relief for
employment discrimination claims filed with the commission.
at 17-18, 936 P.2d at 653-54.
Id.
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.
Furukawa noted that the legislature in 1992 added the
following language to section 386-5: “except for sexual
harassment or sexual assault and infliction of emotional distress
29
or invasion of privacy related thereto, in which case a civil
action may also be brought.”
See Furukawa, 85 Haw. at 18, 936
P.2d at 654; see also Act 275 (1992 Haw. Reg. Sess.).
The Hawaii
Supreme Court noted that the legislative history for the addition
of this language indicated that it was not intended to affect the
scope of remedies under chapter 378, which concerns employment
discrimination.
Id.
In an unpublished, summary disposition order, the
Hawaii Intermediate Court of Appeals 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).
cited Yang, Kamaka, and Furukawa.
In so stating, the court
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.
In Chan v. Wells Fargo Advisors, 2015 WL 5011457, *11,
(D. Haw. Aug. 24, 2015), this court reconciled the state
appellate decisions by reading them “as barring under section
386-5 independent IIED claims that are not related to sex, while
30
not barring emotional distress damages that fall within the
allowable compensatory damages recoverable in connection with
other cognizable claims.”
In its earlier order of May 27, 2015, this court noted
that Furukawa could possibly be read as indicating that
intentional infliction of emotional distress resulting from any
form of discrimination might escape the bar of section 386-5.
See 2015 WL 3407832 at *7.
However, the court had no need to
actually decide whether section 386-5 barred Jinadasa’s claim at
that time, saying only that it was declining to find the claim
barred by section 386-5.
The court dismissed the IIED claim
“[g]iven the bareness of Jinadasa’s factual allegations.”
*8.
Id. at
The court now further clarifies its ruling, determining that
Jinadasa’s IIED claim is barred by section 386-5 because it
arises out of his employment and does not relate to “sexual
harassment or sexual assault.”
Section 386-5’s exception to the workers’ compensation
exclusivity provision for “sexual harassment or sexual assault”
still leaves for consideration the issue of whether Jinadasa may
maintain an independent intentional infliction of emotional
distress claim arising out of alleged sex discrimination, in
addition to seeking emotional distress damages for his sex
discrimination claims.
The resolution of that issue turns on
31
whether his sex discrimination claim can be considered a claim of
sexual harassment.
In its 1992 consideration of amendments to section 3865, the Senate Standing Committee Report on Act 275 states:
Your Committee finds that the intent of this
bill is to enable civil actions arising from
allegations of sexual harassment or sexual
assault as a blanket exception to the
Workers’ Compensation exclusivity provision,
and has amended the bill accordingly. In
doing so, you Committee is retaining language
relating to intentional infliction of
emotional distress or invasion of privacy as
they are prominent features of sex
discrimination, can cause injury, and relate
consistently to sexual harassment or assault.
Senn. Stand. Comm. Rprt. No. 2588 (1992 Haw. Reg. Sess.).
This
report indicates that the legislature knew the difference between
generic sexual discrimination and “sexual harassment or sexual
assault,” having talked about all of those terms in connection
with adding the exception for “sexual harassment or sexual
assault.”
Had the legislature intended that claims of sex
discrimination in a form other than sexual harassment or sexual
assault be exempt from the exclusivity provision of section 3865, the legislature could have easily said so.
It did not.
In a different statutory section enacted at the same
time, the legislature specifically referred to sexual harassment
and sexual assault as distinguishable from sex discrimination in
general.
This separate statutory provisn sheds light on the
amendments to section 386-5.
See Agustin v. Dan Ostrow Const.
32
Co., 64 Haw. 80, 83, 636 P.2d 1348, 1351 (1981) (“Words or
phrases used in two or more sections of a statute are presumed to
be used in the same sense throughout . . . , but by the same
token, different words in a statute are presumed to have
different meanings.”); In re Water Use Permit Applications, 94
Haw. 97, 151, 9 P.3d 409, 463 (2000) (“where the legislature
includes particular language in one section of a statute but
omits it in another section of the same Act, it is generally
presumed that the legislature acts intentionally and purposely in
the disparate inclusion or exclusion” (quotation marks,
citations, and alterations omitted)).
Specifically, the Hawaii
legislature added an exception to the exhaustion requirement to
chapter 378-2 claims “for sexual harassment or sexual assault and
infliction of emotional distress or invasion of privacy related
thereto.”
See Haw. Rev. Stat. § 378-3(10); Nelson v. Univ. of
Hawaii, 97 Haw. 376, 394, 38 P.3d 95, 113 (2001).
In French v. Hawaii Pizza Hut, Inc., 105 Haw. 462, 477,
99 P.3d 1046, 1061 (2004), the Hawaii Supreme Court determined
that the trial court had correctly dismissed gender
discrimination claims as unexhausted.
Clearly, the Hawaii
Supreme Court was not treating gender discrimination claims in
general as identical to the sexual harassment claims that were
excepted from the exhaustion requirement in section 378-3(10).
Thus, the Hawaii Supreme Court appears to have recognized a
33
distinction between “sexual discrimination” and “sexual
harassment.”
Guided by the parallel words in the differing acts
enacted at the same time, this court draws that same distinction
and rules that, for purposes of section 386-5, a sexual
discrimination claim that does not involve “sexual harassment or
sexual assault” is barred by Hawaii’s workers’ compensation
exclusivity provision.
Even if the claim were not so barred, Jinadasa’s
factual allegations do not describe sufficiently outrageous
conduct justifying an intentional infliction of emotional
distress claim, which may only be established in cases involving
particularly extreme conduct.
60.
Hac, 102 Haw. at 106, 73 P.3d at
This ruling in no way bars Jinadasa from seeking emotional
distress damages as part of the requested compensation claims
other than Count VI.
That is, Jinadasa’s damages, if any, may
well include emotional distress under certain other counts that
rely on legal grounds for which, unlike a common-law tort claim,
section 386-5 presents no bar.
G.
Jinadasa’s Constitutional Claims Are
Dismissed As He Alleges No State Action.
Count V of the Fourth Amended Complaint asserts that
BYU Hawaii violated Jinadasa’s constitutional rights,
specifically the First Amendment’s protection of the free
exercise of religion.
Jinadasa says that BYU Hawaii infringed on
that right by barring him from campus and forcing him to miss
34
worship services and a family wedding at the worship center.
See
ECF No. 61, PageID # 535.
The First Amendment protects individuals only against
government infringements.
When a plaintiff asserts a First
Amendment claim against a private party, the plaintiff must
demonstrate that the private party’s conduct constitutes state
action.
See George v. Pac.-CSC Work Furlough, 91 F.3d 1227, 1229
(9th Cir. 1996).
Because BYU Hawaii is a private party, and
because Jinadasa has not shown that BYU Hawaii was acting as or
in concert with a state actor, Jinadasa’s First Amendment claim
is dismissed.
V.
CONCLUSION.
Defendants’ motion to dismiss is granted in part and
denied in part.
The only claims remaining for adjudication are:
(1) Jinadasa’s disparate treatment gender and race discrimination
claims based on Mindy Clark’s being paid more and receiving less
discipline than Jinadasa under Title VII, Title IX, and § 1981,
asserted in Counts I, III, IV; and (2) Jinadasa’s retaliation
claim under Title VII, asserted in Count II.
35
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 25, 2016.
/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge
Jinadasa v. Brigham Young University-Hawaii, et al., Civ. No. 14-00441
SOM/BMK; ORDER GRANTING IN PART AND DENYING IN PART MOTION TO DISMISS FOURTH
AMENDED COMPLAINT
36
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