Li v City and County of Honolulu

Filing 86

ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE LATE OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FILED ON MARCH 8, 2017; AND GRANTING IN PART AND DENYING IN PART DEFENDANTS MOTION FOR SUMMARY JUDGMENT. Signed by JUDGE LESLI E E. KOBAYASHI on 07/14/2017. This Court GRANTS summary judgment in favor of Defendant as to Counts I and II of Plaintiff's Complaint, filed December 22, 2014, DENIES the Motion for Summary Judgment as to the portion of Count III alleging that Plaintiff's termination was retaliatory, and GRANTS summary judgment in favor of Defendant as to all other portions of Count III. (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).

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
QIN LI,

)
)
)
Plaintiff,
)
)
vs.
)
CITY AND COUNTY OF HONOLULU, )
)
Defendant.
)
_____________________________ )

CIVIL 14-00573 LEK-RLP

ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE
LATE OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
FILED ON MARCH 8, 2017; AND GRANTING IN PART AND
DENYING IN PART DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
Before the Court are: Defendant City and County of
Honolulu’s (“Defendant”) Motion for Summary Judgment, filed on
March 8, 2017; and Plaintiff Qui Li’s (“Plaintiff”) motion
seeking leave to file a late memorandum in opposition to the
Motion for Summary Judgment (“Motion for Leave”), filed on
April 14, 2017.

[Dkt. nos. 57, 67.]

The Court finds these

matters suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
Plaintiff’s Motion for Leave is denied, and Defendant’s
Motion for Summary Judgment is denied as to Plaintiff’s claim
that her termination was in retaliation for engaging in protected
activity, and the motion is granted as to all of Plaintiff’s
other claims.

BACKGROUND
Plaintiff filed her Complaint on December 22, 2014.
The Complaint alleges that Defendant terminated Plaintiff’s
employment because of her national origin – Chinese – and in
retaliation for her complaints about workplace discrimination.
[Complaint at ¶ 3.]

The Complaint alleges the following claims:

discrimination based on national origin, in violation of
Title VII of the Civil Rights Act of 1964 (“Title VII”), 42
U.S.C. § 2000e, et seq. (“Count I”); intentional infliction of
emotional distress (“IIED” and “Count II”); and retaliation, in
violation of 42 U.S.C. § 12203 (“Count III”).

Plaintiff prays

for the following relief: reinstatement her employment; general
damages; special damages, including back pay, front pay, and
other expenses; punitive damages; attorneys’ fees and costs;
interest; and any other appropriate relief.
The following facts are relevant to the Motion for
Summary Judgment.

In June 2013, Defendant hired Plaintiff as a

Driver Licensing Clerk (“Clerk”) at the Kapalama/City Square
Office (“Kapalama Office”).

Jacqueline Windrath – the

Supervising Clerk at the Kapalama Office – interviewed Plaintiff
for the position and recommended that Defendant hire her.

At the

time of the interview, Ms. Windrath was aware that Plaintiff is

2

of Chinese descent.

[Def.’s Separate & Concise Statement of

Facts (“Def.’s CSOF”), filed 3/8/17 (dkt. no. 55), at ¶¶ 1-3.1]
Ms. Windrath states that her own “race is Chinese, Japanese,
Filipino, and Spanish.”

[Def.’s CSOF, Decl. of

Jacqueline Windrath (“Windrath Decl.”) at ¶ 3.]
In 2013, Defendant hired eleven new Clerks for the
Kapalama Office.
June and July.
transfers.

Six of the eleven new Clerks were hired during

Four of the eleven new Clerks were government

During the relevant period, unless a new Clerk was a

government transfer, he or she had a probationary review after
approximately three months, and another after approximately six
months.

These reviews included a meeting between Ms. Windrath

and the Clerk, during which they discussed any errors the Clerk
made, how the Clerk could improve, and how the Clerk could
satisfactorily complete the probationary period.
6.]

[Id. at ¶¶ 5-

During the relevant period, Ms. Windrath also discussed

Clerk errors and/or performance problems during counseling
sessions so that the Clerk had the opportunity to correct the
errors and/or problems.

Prior to the end of the six-month

probationary period, Ms. Windrath recommended whether the Clerk
should be given permanent employment status, be terminated, or
have his or her probationary period extended.

1

[Id. at ¶¶ 8-9.]

For the reasons stated infra Discussion Section I, the
statements of fact in Defendant’s CSOF are deemed admitted.
3

Plaintiff and the six other Clerks hired in 2013 who
were not government transfers received the three-month and sixmonth probationary reviews.

[Id. at ¶ 7.]

In Plaintiff’s three-

month Probationary Performance Evaluation Report (“Three-Month
PPER”), signed on September 4, 2013, Ms. Windrath rated
Plaintiff’s overall performance as satisfactory.

Specifically,

Ms. Windrath rated Plaintiff’s work-quality, work-quantity,
reliability and initiative, relationships with others, and job
knowledge as satisfactory.

[Windrath Decl. at ¶ 31

(authenticating Exhibit 5); Def.’s Second Suppl. to Def.’s CSOF
(“Second Supplement”), filed 3/10/17 (dkt. no. 61), Exh. 5.2]

In

the comments section of the Three-Month PPER, Ms. Windrath
described Plaintiff as “very pleasant when serving the public.”
[Second Supplement, Exh. 5.]

Although she considered Plaintiff’s

work to be satisfactory “for a person at th[at] stage of
training,” Ms. Windrath counseled Plaintiff about “numerous
errors she made.”

[Windrath Decl. at ¶¶ 28, 30.]

These errors

included problems with accuracy, completeness, and following
procedure.

[Id. at ¶ 30; Second Supplement, Exh. 4 (Employee

Performance Evaluation Worksheet (“EPEW”) documenting

2

At the time Defendant filed its CSOF, it intended to file
Plaintiff’s Three-Month PPER, and other exhibits, under seal, but
this Court denied Defendant’s motion to file the exhibits under
seal. [Dkt. no. 60.] Defendant filed the Second Supplement
after the denial of its motion to file the exhibits under seal.
4

Ms. Windrath’s 9/4/13 counseling session with Plaintiff).]
During Plaintiff’s six-month probationary period,
Plaintiff “had serious and numerous performance deficiencies for
which she was counseled on multiple occasions.”

[Def.’s CSOF at

¶ 10; Windrath Decl. at ¶¶ 34, 38, 40, 42, 45; Second Supplement,
Exh. 6 (EPEW for 9/18/13 counseling session), Exh. 7 (EPEW
regarding incident between Plaintiff and a licensing applicant on
10/7/13 (“10/7/13 Incident”)), Exh. 8 (EPEW documenting
Ms. Windrath’s 10/8/13 counseling session with Plaintiff
regarding the 10/7/13 incident), Exh. 9 (EPEW for 10/14/13
counseling session), Exh. 10 (EPEW for 11/19/13 counseling
session).]

During the counseling sessions, Plaintiff was

argumentative, but she indicated a desire to change.
Ms. Windrath therefore recommended that Plaintiff’s probationary
period be extended in lieu of termination of employment.

[Def.’s

CSOF at ¶¶ 11-12; Windrath Decl. at ¶ 68, Exh. 17 at 1 (Pltf.’s
Six-Month PPER, signed 12/12/13).]

In Plaintiff’s Six-Month

PPER, Ms. Windrath rated Plaintiff’s work-quality, work-quantity,
relationships with others, job knowledge, and overall performance
as substandard.

[Windrath Decl., Exh. 17 at 1.]

Based on Ms. Windrath’s recommendation, Defendant
extended Plaintiff’s probationary period for an additional three

5

months.3

However, Plaintiff continued to perform poorly and to

make mistakes.

[Def.’s CSOF at ¶¶ 13-14; Windrath Decl. at

¶¶ 51-52, 54, 56; Second Supplement, Exh. 12 (EPEW for 1/13/14
counseling session), Exh. 13 (EPEW for 1/14/14 counseling
session), Exh. 14 (EPEW for 1/29/14 counseling session), Exh. 15
(EPEW for 2/6/14 counseling session).]

Defendant submitted

documents and records that Ms. Windrath provided to Plaintiff
during the various counseling sessions so that Plaintiff could
see the errors that she had made.

[Windrath Decl. at ¶ 58,

Exh. 16.]
Prior to the completion of Plaintiff’s additional
three-month probationary period, Ms. Windrath submitted a PPER
recommending Plaintiff’s termination (“Nine-Month PPER”).4
at ¶ 68, Exh. 17 at 2-3.]

[Id.

Ms. Windrath again rated Plaintiff’s

work-quality, work-quantity, relationships with others, job
knowledge, and overall performance as substandard.
Decl., Exh. 17 at 2.]

[Windrath

Defendant ultimately terminated

Plaintiff’s employment “because of her continued poor performance
and rudeness.”

[Def.’s CSOF at ¶ 15.]

According to Defendant,

3

Plaintiff was unhappy with the extension of her
probationary period, and she asked Ms. Windrath to re-evaluate
her. [Windrath Decl. at ¶ 52.]
4

The additional probationary period was from December 17,
2013 to March 16, 2014, but Ms. Windrath signed the Nine-Month
PPER on February 25, 2014. [Windrath Decl. Exh. 17 at 2.]
6

there was no disparity between how Plaintiff was treated and how
other probationary Clerks were treated.
Plaintiff favorable treatment.

In fact, Defendant gave

[Id. at ¶¶ 16-17.]

Ms. Windrath

has recommended the termination of other employees after their
six-month probationary period when their performance was not
satisfactory.

[Windrath Decl. at ¶¶ 47-48; Second Supplement,

Exh. 11 (PPER recommending termination of another employee).]

In

spite of the history of terminating Clerks who under-performed
during probation, both Plaintiff and another Clerk hired in
June 2013 were allowed an additional three-month probationary
period to improve.

The other Clerk who had an extended

probationary period was of Filipino descent.

[Windrath Decl. at

¶ 26.]
Ms. Windrath and Director Sheri Kajiwara – who is also
of Chinese descent – state that they did not know about
Plaintiff’s protected activity before they made the decision to
terminate Plaintiff’s employment, and they did not retaliate
against her for engaging in protected conduct.5
¶¶ 18-19.]

[Def.’s CSOF at

Ms. Windrath has denied having “discriminatory animus

against people of Chinese descent/origin.”

5

[Id. at ¶ 20.]

Sheri Kajiwara is the Director of the City’s Department of
Customer Services. [Def.’s CSOF, Decl. of Sheri T. Kajiwara
(“Kajiwara Decl.”) at ¶ 1.] Director Kajiwara signed the letter
notifying Plaintiff that her employment was being terminated.
[Id. at ¶ 11.]
7

Ms. Windrath also denies fabricating any claims against
Plaintiff.

[Id. at ¶ 22.]

Defendant seeks summary judgment as to all of the
claims in the Complaint.
DISCUSSION
I.

Motion for Leave
Defendant’s Motion for Summary Judgment was originally

scheduled for hearing on April 17, 2017.

Local Rule 7.4 states,

in pertinent part: “An opposition to a motion set for hearing
shall be served and filed not less than twenty-one (21) days
prior to the date of hearing.”

However, because twenty-one days

before April 17, 2017 was March 27, 2017, which was a legal
holiday, Plaintiff’s opposition was due on March 24, 2017.

See

Local Rule LR6.1.
On March 27, 2017, Plaintiff’s counsel filed a response
to the Motion for Summary Judgment, stating that counsel prepared
a memorandum in opposition, but did not file it because Plaintiff
failed to come to counsel’s office to sign a declaration
necessary to the memorandum in opposition.

Counsel stated that

they would be filing a motion seeking a continuance of the
hearing on the Motion for Summary Judgment.

As of April 4, 2017,

however, Plaintiff’s counsel had not filed a motion seeking a
continuance of the hearing.

This Court therefore issued an
8

entering order finding that Defendant’s Motion for Summary
Judgment was unopposed, vacating the hearing, and taking the
motion under advisement (“4/4/17 EO”).

[Dkt. no. 66.]

The

4/4/17 EO also stated that, in light of Plaintiff’s failure to
file a concise statement of facts responding to Defendant’s CSOF,
this Court deemed all statements of material fact in Defendant’s
CSOF to be admitted.

See Local Rule LR56.1(g) (“For purposes of

a motion for summary judgment, material facts set forth in the
moving party’s concise statement will be deemed admitted unless
controverted by a separate concise statement of the opposing
party.”).

Plaintiff’s Motion for Leave followed.
The Motion for Leave includes the Declaration of

Charles H. Brower (“Brower Declaration”).

Mr. Brower states that

he left the state on a trip on the night of March 24, 2017, but
Plaintiff’s response to Defendant’s CSOF and Plaintiff’s
declaration were prepared for filing prior to his departure.
Plaintiff was instructed to come to Mr. Brower’s office on
March 27, 2017 to sign her declaration, but she later informed
Mr. Brower that she could not do so and that she wanted to meet
with him to review the declaration before signing it.
Decl. at ¶¶ 2-5.]

[Brower

Mr. Brower states that, “[d]ue to the

aforesaid trip, [he] could not meet with Plaintiff before
March 27, 2017.”

[Id. at ¶ 6.]

Mr. Brower met with Plaintiff on

April 11, 2017, and she signed her declaration.
9

[Id. at ¶ 7.]

Plaintiff’s declaration – including its exhibits – and
Plaintiff’s response to Defendant’s CSOF are attached to the
Brower Declaration as Exhibits 1 and 2, respectively.
Fed. R. Civ. P. 6(b)(1) states:
When an act may or must be done within a specified
time, the court may, for good cause, extend the
time:
(A) with or without motion or notice if the
court acts, or if a request is made, before
the original time or its extension expires;
or
(B) on motion made after the time has
expired if the party failed to act because of
excusable neglect.
In the instant case, Plaintiff’s memorandum in opposition to the
Motion for Summary Judgment and her response to Defendant’s CSOF
were due by March 24, 2017, but Plaintiff did not file the Motion
for Leave until April 14, 2017.

Thus, Plaintiff must show that

her failure to take timely action was the result of excusable
neglect.

This district court has stated:
To determine whether a party’s failure to meet a
deadline constitutes excusable neglect, courts
must examine: (1) the danger of prejudice to the
opposing party; (2) the length of the delay and
its potential impact on the proceedings; (3) the
reason for the delay; and (4) whether the movant
acted in good faith. See Pioneer Inv. Servs. Co.
v. Brunswick Assocs. Ltd. P’ship, 507 U.S. 380,
395, 113 S. Ct. 1489, 123 L. Ed. 2d 74 (1993);
Comm. for Idaho’s High Desert, Inc. v. Yost, 92
F.3d 814, 825 n.4 (9th Cir. 1996) (concluding that
the Pioneer test applies to Rule 6(b) motions).

Dawkins v. City & Cty. of Honolulu, Civ. No. 10-00086 HG-KSC,
10

2012 WL 1536111, at *3 (D. Hawai`i Apr. 27, 2012).
Defendant would not be prejudiced if this Court granted
the Motion for Leave because this Court would allow Defendant to
file a reply.

Further, while this Court does not condone

Plaintiff’s and her counsel’s failure to abide by the applicable
deadlines, the twenty-one-day delay between the deadline for
Plaintiff’s response to the Motion for Summary Judgment and the
filing of her Motion for Leave would not have a significant
impact on the proceedings.

Thus, the first and second Pioneer

factors weigh in favor of a finding of excusable neglect.
As to the reason for the delay, it is understandable
that Plaintiff wanted to meet with Mr. Brower – who appears to be
the lead counsel for Plaintiff – before signing her declaration,
and this Court does not fault Mr. Brower for taking a trip.
However, Mr. Brower should have prepared Plaintiff’s declaration
with sufficient time before his trip to allow him to meet with
her before his departure.

He asserts that he could not meet with

Plaintiff before March 27, 2017 because of his trip,6 but he does
not explain why the trip prevented him from meeting with
Plaintiff prior to his departure on March 24, 2017.

Moreover,

even if the trip did prevent Mr. Brower from meeting with
Plaintiff prior to his departure, Mr. Brower could have requested

6

As previously noted, by March 27, 2017, Plaintiff’s
response to the Motion for Summary Judgment was already late.
11

a continuance of the hearing and an extension of the deadline to
file Plaintiff’s opposition.

Further, Mr. Brower’s co-counsel,

Michael Healy, Esq., filed the Response on March 27, 2017, and
there is no explanation in the record why Mr. Healy could not
have filed a motion for a continuance instead of filing the
Response.

As previously noted, Plaintiff never filed the motion

for a continuance referred to in the Response.

This Court

therefore finds that the third Pioneer factor – the reason for
the delay in filing the Motion for Leave – weighs against
Plaintiff.
For similar reasons, this Court also finds that there
is insufficient evidence in the record to support a finding that
Plaintiff and her counsel have acted in good faith in responding
to Defendant’s Motion for Summary Judgment.

This Court therefore

finds that the fourth Pioneer factor – whether the moving party
has acted in good faith – weighs against Plaintiff.
This Court acknowledges that it is a close question
whether there was excusable neglect in this case.

This Court has

carefully considered the two factors that weigh in favor of a
finding of excusable neglect and the two factors that weigh
against it.

Under the circumstances of this case, this Court

finds that the two factors weighing against a finding of
excusable neglect are the more persuasive factors.

This Court

therefore finds that Plaintiff’s failure to file either her
12

memorandum in opposition to the Motion for Summary Judgment or a
motion for a continuance was not the result of excusable neglect.
This Court, in the exercise of its discretion, declines to extend
the deadline for the filing of Plaintiff’s memorandum in
opposition to Defendant’s Motion for Summary Judgment and
Plaintiff’s response to Defendant’s CSOF.

Plaintiff’s Motion for

Leave is denied.
In light of Plaintiff’s failure to file a concise
statement of facts responding to Defendant’s CSOF, this Court
deems all statements of material fact in Defendant’s CSOF
admitted.

See Local Rule LR56.1(g) (“For purposes of a motion

for summary judgment, material facts set forth in the moving
party’s concise statement will be deemed admitted unless
controverted by a separate concise statement of the opposing
party.”).
II.

Title VII Discrimination Claim
Plaintiff’s Count I is titled “NATIONAL ORIGIN

DISCRIMINATION.”7

[Complaint at pg. 4.]

Title VII prohibits

employers from, inter alia, “discharg[ing] any individual, or

7

Count I also states that Title VII “prohibits
discrimination and termination due to national origin and based
on retaliation for complaining of the discrimination.”
[Complaint at ¶ 19 (emphasis added).] However, in light of the
title of Count I and the fact that Count III alleges a
retaliation claim, this Court does not construe Count I as
alleging a retaliation claim.
13

otherwise . . . discriminat[ing] against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of such individual’s race, color, religion,
sex, or national origin.”

42 U.S.C. § 2000e-2(a)(1).

Count I

alleges that Plaintiff was subjected to various forms of
disparate treatment during her probationary period, including
having her probation extended and ultimately being terminated,
because she is Chinese.

[Id. at ¶¶ 7-17.]

This district court

has stated:
A plaintiff may establish disparate treatment
in violation of . . . Title VII through direct
evidence or, alternatively, through the familiar
McDonnell Douglas burden shifting framework. See
Surrell v. California Water Serv. Co., 518 F.3d
1097, 1105 (9th Cir. 2008) (discussing standard
with respect to Title VII and [42 U.S.C.] § 1981
claims). . . .
The framework set forth in McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973), begins
by requiring a plaintiff to establish a prima
facie case of discrimination. The degree of proof
required to establish a prima facie case for
summary judgment is minimal. See Coghlan v. Am.
Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005).
A prima facie case of disparate treatment requires
a plaintiff to establish that: (1) the plaintiff
is a member of a protected class; (2) the
plaintiff was qualified for the position in issue;
(3) the plaintiff suffered an adverse employment
decision; and (4) one or more 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).

14

A plaintiff must demonstrate that his or her
situation is similar in all material respects to
that of employees who received more favorable
treatment. 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)).
Under the McDonnell Douglas framework, once a
plaintiff succeeds in presenting a prima facie
case, the burden then shifts to the defendant to
articulate a “legitimate, nondiscriminatory
reason” for its employment decision. Noyes v.
Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007).
“Should the defendant carry its burden, the burden
then shifts back to the plaintiff to raise a
triable issue of fact that the defendant’s
proffered reason was a pretext for unlawful
discrimination.” Id.
Jinadasa v. Brigham Young Univ. - Haw., CIVIL NO. 14-00441
SOM/KJM, 2016 WL 6645767, at *3 (D. Hawai`i Nov. 9, 2016)
(emphasis and some alterations in Jinadasa).
A.

Hostile Work Environment
The Court first notes, because of some of the language

of the Complaint, Count I could be construed as based in part on
a hostile work environment theory.
stated:

15

This Court has previously

In order to prevail on a hostile work environment
claim, a plaintiff is “required to establish a
pattern of ongoing and persistent harassment
severe enough to alter the conditions of
employment.” Dawson v. Entek Int’l, 630 F.3d 928,
939 (9th Cir. 2011). To satisfy this requirement,
a plaintiff must establish that “the conduct at
issue was both objectively and subjectively
offensive: he must show that a reasonable person
would find the work environment to be ‘hostile or
abusive,’ and that he in fact did perceive it to
be so.” Dawson, 630 F.3d at 938 (quoting Faragher
v. City of Boca Raton, 524 U.S. 775, 787, 118 S.
Ct. 2275, 141 L. Ed. 2d 662 (1998)). . . .
U.S. E.E.O.C. v. Glob. Horizons, Inc., 904 F. Supp. 2d 1074, 1085
(D. Hawai`i 2012) (some citations and internal quotation marks
omitted).
The Complaint does allege that Ms. Windrath: repeatedly
harassed Plaintiff by questioning Plaintiff’s understanding of
work directives; and “yelled and communicated with her in a
hostile manner,” although Ms. Windrath did not communicate with
non-Chinese employees in that manner.

[Complaint at ¶¶ 8, 10.]

However, the factual allegations of Complaint, if proven, would
not support a finding that this harassment was so severe as to
alter the terms of Plaintiff’s employment.
at 939.

See Dawson, 630 F.3d

This Court therefore does not construe Count I as

alleging a discrimination claim based on a hostile work
environment.

16

B.

Direct and Circumstantial Evidence
As previously noted, a plaintiff responding to a motion

for summary judgment is not required to rely on the McDonnell
Douglas analysis.

The plaintiff “may instead respond by

producing evidence demonstrating that a discriminatory reason
more likely than not motivated his employer.”

Lalau v. City &

Cty. of Honolulu, 938 F. Supp. 2d 1000, 1011 (D. Hawai`i 2013)
(citing Surrell v. Cal. Water Serv. Co., 518 F.3d 1097, 1105 (9th
Cir. 2013); McGinest v. GTE Service Corp., 360 F.3d 1103, 1122
(9th Cir. 2004)).

This district court has stated:

When a plaintiff does not rely on the
McDonnell Douglas framework to oppose a summary
judgment motion, but seeks to establish her case
through the submission of actual evidence, “very
little such evidence is necessary to raise a
genuine issue of material fact regarding an
employer’s motive[.]” Lowe [v. City of Monrovia],
775 F.2d [998,] 1009 [(9th Cir. 1985), amended by
784 F.2d 1407 (9th Cir. 1986)]. . . .
For an employee to meet this burden, the
Ninth Circuit has “repeatedly held that a single
discriminatory comment by a plaintiff’s supervisor
or decisionmaker is sufficient to preclude summary
judgment for the employer.” Dominguez–Curry v.
Nev. Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir.
2005). Relying on a supervisor’s single
discriminatory comment is consistent with “the
importance of zealously guarding an employee’s
right to a full trial, since discrimination claims
are frequently difficult to prove without a full
airing of the evidence and an opportunity to
evaluate the credibility of the witnesses.”
McGinest, 360 F.3d at 1112. “[W]hen a court too
readily grants summary judgment, it runs the risk
of providing a protective shield for
discriminatory behavior that our society has
17

determined must be extirpated.” Id. When a
plaintiff has established a prima facie inference
of disparate treatment though direct or
circumstantial evidence of discriminatory
intent[8] — even if the employer has a legitimate,
nondiscriminatory reason for taking the adverse
employment action — she “will necessarily have
raised a genuine issue of material fact with
respect to the legitimacy or bona fides of the
employer’s articulated reason for its employment
decision.” Cordova [v. State Farm Ins. Cos.], 124
F.3d [1145,] 1150 [(9th Cir. 1997)] (emphasis in
original).
Machado v. Real Estate Res., LLC, Civil No. 12-00544 RLP, 2013 WL
3944511, at *5 (D. Hawai`i July 30, 2013) (some alterations in
Machado) (some citations omitted).

In Machado, this district

court also explained:
Direct evidence is “evidence which, if
believed proves the fact [of discriminatory
animus] without inference or presumption.”
Vasquez, 349 F.3d at 640 (quoting Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998)
(alteration in original)). “Direct evidence
typically consists of clearly sexist, racist, or
similarly discriminatory statements or actions by
the employer.” Dominguez–Curry, 424 F.3d at 1038
(quoting Coghlan v. Am. Seafoods Co., 413 F.3d
1090, 1095 (9th Cir. 2005)). Circumstantial
evidence, on the other hand, “is evidence that
requires an additional inferential step to
demonstrate discrimination.” Coghlan, 413 F.3d at
1095. . . .
Id. at *6 (some alterations in Machado).

8

“‘Direct evidence is evidence which, if believed, proves
the fact without inference or presumption.’” Lalau, 938 F. Supp.
2d at 1013 (quoting Brown v. E. Miss. Elec. Power Ass’n, 989 F.2d
858, 861 (5th Cir. 1993)).

18

Plaintiff testified at her deposition that Ms. Windrath
said over a hundred times that Chinese people were “nasty,” and
that every Clerk under Ms. Windrath’s supervision during the time
Plaintiff worked for Defendant heard the statement.

[Def.’s

CSOF, Decl. of Counsel at ¶ 4; Suppl. to Def.’s CSOF, filed
3/8/17 (dkt. no. 56), Exh. 19 (excerpts of trans. of Pltf.’s
3/1/17 depo. (“Pltf. Depo.”)) at 145-47.9]

Plaintiff also

testified that Ms. Windrath: said “Chinese food is like doo-doo”;
said Chinese people were “bad”; and made other comments that
Plaintiff did not repeat during the deposition because they were
things she “would never want to say out loud.”
147.]

[Pltf. Depo. at

Further, according to Plaintiff, Ms. Windrath “always

complained about Chinese people.”

[Id. at 203.]

When Plaintiff

first started working with her, Ms. Windrath would make fun of
the Clerks who were Chinese, believing that they would not
complain.

[Id. at 204.]

Ms. Windrath denies making the

statements Plaintiff attributes to her, and she asserts that she
“never made derogatory remarks about Chinese people or immigrants
in the workplace.”

[Windrath Decl. at ¶ 66.]

9

Defendant filed the supplement to Defendant’s CSOF because
counsel inadvertently omitted Exhibit 19 during the filing of
Defendant’s CSOF. [Suppl. to Def.’s CSOF at 2.]
19

Viewing the record in the light most favorable to
Plaintiff,10 this Court finds that some of the statements that
Plaintiff described during her deposition constitute direct
evidence which raises a genuine issue of fact as to whether
Ms. Windrath had a discriminatory animus toward Chinese Clerks.
However, this does not necessarily constitute “direct evidence
that [Ms. Windrath] subjected [Plaintiff] to any adverse
employment action because of that discriminatory mindset.”

See

Lalau, 938 F. Supp. 2d at 1013–14.
According to Plaintiff, Ms. Windrath made the comment
that Chinese people were “nasty” throughout Plaintiff’s
employment.

The temporal proximity between these statements and

the extension of Plaintiff’s probation and her ultimate
termination is circumstantial evidence which Plaintiff contends
shows that the decisions were made because of her national
origin.

Plaintiff also described the following incidents in

which she asserts she was subjected to adverse employment actions
because of her national origin:
-When Plaintiff’s trainer was unavailable, she was not provided
with another trainer, but when Nicole’s – another Clerk who
was in training at the same time as Plaintiff – trainer was

10

The Ninth Circuit has stated, “[w]e review a grant of
summary judgment de novo and must determine, viewing the facts in
the light most favorable to the nonmoving party, whether there
are any genuine issues of material fact . . . .” Crowley v.
Bannister, 734 F.3d 967, 976 (9th Cir. 2013) (citations and
quotation marks omitted).
20

unavailable, Nicole was provided with a substitute trainer.
[Pltf. Depo. at 175-77.]
-At Plaintiff’s first of several training stations, she was not
given instruction sheets, but other Clerks in training were
provided with instruction sheets. [Id. at 181-82.]
-When Plaintiff complained to Ms. Windrath that the chair at her
station was broken, Ms. Windrath did not have the chair
changed, but when other employees – including Nicole – made
similar complaints, their chairs were changed immediately.
[Id. at 186-89.]
-Plaintiff could not access her email to
stub because no one would train her
system. Everyone else had training
Tiffany would not train Plaintiff.

view her electronic pay
on how to use the
from “Tiffany,” but
[Id. at 190-93.]

Plaintiff testified that she believes Nicole was treated better
than she was because of the chair incident, the provision of a
substitute trainer for Nicole, Nicole’s progress through the
training stages, and the fact that Nicole passed probation after
six months while Plaintiff did not.

When Nicole and Plaintiff

were working with the same trainer, the trainer spent more time
with Nicole.

Nicole also stayed in the photo station – which

requires the Clerk to be on her feet – for two or three days
while Plaintiff was there for two to three weeks.

Plaintiff’s

position appears to be that Nicole progressed through the
training stations more quickly and more smoothly than Plaintiff
did.

[Id. at 194-201.]

Plaintiff denied that Nicole’s progress

was attributable to the fact that Nicole was able to learn tasks
faster than Plaintiff was, and Plaintiff testified that Nicole
made “[a] lot of errors.”

[Id. at 200-01.]
21

According to

Plaintiff, Nicole was late to work several times, while Plaintiff
was never late, and Plaintiff did not make as many errors as
Nicole did.

[Id. at 201-02.]

However, Plaintiff also testified:

A.
Later on I figure out all the new employees
have the same process as Nicole. But I have the
same order as the person who [Ms. Windrath] fired
before me.
Q.
I’m going to try to decipher what you just
said. Are you saying that you think because you
had the same order of stations of somebody that
was fired before you that you both are being
discriminated against?
A.

I don’t know her, but to me it is.

Q.
Because she had the same order and she was
fired?
A.
me.
[Id. at 198.]

Yeah.

Because she was almost same order as

Plaintiff asserted that all of the Clerks hired

after Plaintiff were treated better than she was because they all
had the same training process that Nicole did.

[Id. at 205-06.]

Plaintiff believes that Ms. Windrath treated Nicole
better than she treated Plaintiff because Nicole: brought gifts
to Ms. Windrath; had a relative or friend who was in a management
position above them; and is Caucasian.

[Id. at 202-03.]

According to Plaintiff, when talking about the Clerks’
interviews, Ms. Windrath said that she did not like Chinese
people and that she liked Caucasians.

22

[Id. at 204.]

While it is undisputed that the termination of
Plaintiff’s employment was an adverse employment decision, some
of the incidents Plaintiff relies upon to support her disparate
treatment claim may not be.
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.
Jinadasa v. Brigham Young Univ. - Hawaii, CIVIL NO. 14-00441
SOM/BMK, 2016 WL 355470, at *3 (D. Hawai`i Jan. 25, 2016).
However, even if all incidents Plaintiff relies upon are assumed
to constitute adverse employment decisions, Plaintiff still has
not identified sufficient direct and circumstantial evidence to

23

survive summary judgment.
Even if it is assumed, for purposes of this Motion,
that Ms. Windrath made the statements attributed to her,
Plaintiff has only offered circumstantial evidence as to the
issue of whether Ms. Windrath subjected Plaintiff to adverse
employment actions because of Ms. Windrath’s discriminatory
animus toward Chinese Clerks.
The Ninth Circuit has said that, when a plaintiff
opts not to rely on the McDonnell Douglas
framework but instead to produce evidence that an
employer likely acted for a discriminatory reason,
it does not matter whether the evidence is direct
or circumstantial. Thus, in McGinest, the Ninth
Circuit said, “In Costa [v. Desert Palace, Inc.,
539 U.S. 90, 123 S. Ct. 2148 (2003)], the Supreme
Court held that circumstantial and direct evidence
should be treated alike, noting: ‘Circumstantial
evidence is not only sufficient, but may also be
more certain, satisfying and persuasive than
direct evidence.’” 360 F.3d at 1122 [(quoting
Costa, 123 S. Ct. at 2154)]. However, the Ninth
Circuit has also said that “[o]ur circuit has not
clearly resolved” whether, when evidence of
discriminatory animus is circumstantial, the
evidence must be “specific” and “substantial,” a
standard inapplicable to direct evidence. Davis
v. Team Elec. Co., 520 F.3d 1080, 1091 (9th Cir.
2008).
After the Supreme Court decided Costa in
2002, the Ninth Circuit, in Cornwell v. Electra
Central Credit Union, 439 F.3d 1018, 1030 (9th
Cir. 2006), said that “in the context of summary
judgment, Title VII does not require a disparate
treatment plaintiff relying on circumstantial
evidence to produce more, or better, evidence than
a plaintiff who relies on direct evidence.” But
in other post-Costa cases, the Ninth Circuit
required circumstantial evidence of pretext to be
“specific” and “substantial.” Davis, 520 F.3d at
24

1091 n.6 (citing Dominguez–Curry v. Nev. Transp.
Dep’t, 424 F.3d 1027, 1038 (9th Cir. 2005), as an
example of a case in which the higher standard was
required). Thus, when a plaintiff’s evidence is
circumstantial, a court may have to determine
whether the evidence is specific and substantial.
Lalau, 938 F. Supp. 2d at 1014–15 (some alterations in Lalau).
Lalau was Samoan male who was a liquor investigator for the
Honolulu Liquor Commission.

Id. at 1005.

According to Lalau,

the chief investigator and an administrator “stated that they
need to make the office safe from [him] because [he] was just a
typical Samoan.”

Id. at 1006 (internal quotation marks omitted).

Similar to the instant case, the district court noted that Lalau
presented direct evidence of discriminatory animus and
circumstantial evidence that the animus influenced an adverse
employment action.

The district court stated: “[e]ven if a

hybrid is treated as entirely circumstantial, Lalau offers
evidence from which a jury could infer that animus toward Samoans
influenced the City’s actions.”

Id. at 1015.

Relying on Davis,

520 F.3d 1080, the district court concluded that the “typical
Samoan” comment passed the “specific and substantial’ standard”
because it was “made by the plaintiff’s supervisor or by a person
who makes a decision as to an adverse employment action.”

Id.

Similarly, in Machado, the plaintiff was an escrow
manager for a real estate brokerage office.

She was originally

from Indonesia, and English was her second language.

25

2013 WL

3944511, at *1.

According to Machado, the defendant’s Vice

President of Operation informed her that he decided to terminate
her employment “because of her ‘strong accent’ because her accent
‘would not let [her] be successful with their company.’”

Id.

This district court concluded that this evidence – although
disputed – was “‘specific’ and ‘substantial’ because the
statement was (1) made directly to Plaintiff by her supervisor,
(2) as a basis for the adverse employment action, and (3) is
inextricably intertwined with Plaintiff’s national origin.”

Id.

at *9.
In the instant case, Plaintiff has presented evidence
that Ms. Windrath – her supervisor and the person who made the
recommendation to terminate her employment – made statements that
show a discriminatory animus against Chinese people.

Thus, they

were inextricably intertwined with Plaintiff’s national origin.
However, Plaintiff’s evidence also shows that the Ms. Windrath’s
statements were general comments; Plaintiff has not presented
evidence that Ms. Windrath made the statements directly to
Plaintiff.

Even if Ms. Windrath did make the statement directly

to Plaintiff, to the extent that Defendant took adverse
employment actions against Plaintiff – including, but not limited
to, terminating her employment – she has not presented any
evidence that the discriminatory statements were a basis for the
adverse employment actions taken against her.
26

Although there are

some similarities between the evidence presented in the instant
case and evidence presented in cases like Lalau and Machado,
significant differences exist.

The evidence Plaintiff presents

in the instant case does not constitute specific and substantial
evidence supporting her claim that she was discriminated against
based on her national origin.

To the extent that Plaintiff

relies on a hybrid of direct and circumstantial evidence of
disparate treatment, Plaintiff fails to raise a genuine issue of
material fact for trial.
B.

McDonnell Douglas Analysis
1.

Prima Facie Case

Plaintiff may also establish her disparate treatment
claim through the McDonnell Douglas burden-shifting framework.
See Surrell, 518 F.3d at 1105.

Plaintiff has satisfied the first

two elements of her prima facie case: she is a member of a
protected class because her national origin is Chinese;
[Complaint at ¶ 3; Pltf. Depo. at 145;] and she had the basic
qualifications for the Clerk position, as evidenced by the fact
that Defendant hired her and she satisfactorily completed her
first three-month probationary period, [Def.’s CSOF at ¶ 1;
Second Supplement, Exh. 5 (Three-Month PPER)].
As to the third element, the record includes evidence
of two adverse employment decisions – the extension of
Plaintiff’s probationary period and her termination.
27

See Def.’s

CSOF at ¶¶ 13, 15.

Plaintiff also testified that she: was not

provided with a substitute trainer when hers was unavailable; she
was not given instruction sheets for some of the training
stations she was assigned to; her broken chair was not replaced
as quickly as another employee’s; she was not provided with
training on the use of the office email system; and her progress
through the Clerks’ training stations was slower than other
Clerks.

[Pltf. Depo at 177-77, 181-82, 186-201.]

However, there

is insufficient evidence in the current record to support a
finding that any of these purported employment decisions
“materially affect[ed] the compensation, terms, conditions, or
privileges of [Plaintiff’s] employment.”
1089.

See Davis, 520 F.3d at

Thus, for purposes of the McDonnell Douglas analysis, this

Court will only consider the extension of Plaintiff’s
probationary period and her termination.
As to the fourth element of her prima facie case,
Plaintiff points to “Nicole,” a Caucasian Clerk who was in
training at the same time Plaintiff was.
203.]

[Pltf. Depo. at 175-76,

Unlike Plaintiff, Nicole passed probation after six moths,

even though – according to Plaintiff – Nicole was late to work
several times, while Plaintiff never was.

[Id. at 201-02.]

Further, Plaintiff saw Nicole make “[a] lot of errors,” while
Plaintiff made “some.

But not much.”

[Id. at 200-01.]

Viewing

the record in the light most favorable to Plaintiff, she has
28

established that a comparable employee outside of her protected
class did not suffer the adverse employment decisions she did.
Thus, Plaintiff has established all of the elements of her prima
facie case.
2.

Legitimate, Nondiscriminatory Reason

The burden therefore shifts to Defendant to establish a
“legitimate, nondiscriminatory reason” for its extension of
Plaintiff’s probationary period and her termination.
488 F.3d at 1168.

See Noyes,

Ms. Windrath states that, “[d]uring

Plaintiff’s second three months of probation (9/13 to 12/13), she
made numerous errors including the same error numerous times and
errors related to matters she was fully trained on.
[Ms. Windrath] also received complaints about customer service
and rudeness with co-workers.”

[Windrath Decl. at ¶ 35.]

Ms. Windrath describes the errors and complaints in her
declaration, and Defendant submitted the documentation of her
counseling sessions with Plaintiff.
Supplement, Exhs. 7-10.]

[Id. at ¶¶ 36-45; Second

Defendant also submitted the documents

and/or records that Ms. Windrath provided to Plaintiff during the
counseling sessions to show Plaintiff her errors.

[Windrath

Decl., Exh. 16.]
At the end of Plaintiff’s six-month probationary
period, in spite of Plaintiff’s errors, Ms. Windrath still
believed Plaintiff had the potential to succeed in the position
29

and “recommended [Plaintiff] be given an extended probationary
period to overcome her performance deficiencies and be given a
final chance to improve.”

[Windrath Decl. at ¶ 46.]

Ms. Windrath states that she previously “recommended termination
for under-performing employees at the conclusion of the six (6)
month probationary period.”

[Id. at ¶ 47.]

Defendant submitted

the Six-Month PPER for another Clerk who was scheduled to
complete her probationary period on October 31, 2013.
Ms. Windrath rated the Clerk’s performance as substandard overall
and in each individual category, and she recommended that the
Clerk be terminated.

[Second Supplement, Exh. 11.]

Further, as

previously noted another Clerk hired in 2013, who was of Filipino
descent, also had his probationary period extended based on
unsatisfactory performance.

[Windrath Decl. at ¶ 26.]

Even

viewing the record in the light most favorable to Plaintiff,
Defendant has carried its burden to present a legitimate,
nondiscriminatory reason for the extension of Plaintiff’s
probationary period.
During Plaintiff’s extended probationary period, she
“continued to make errors, including repeated errors for which
she was previously counseled.”

[Id. at ¶ 49.]

Ms. Windrath

describes these errors in her declaration, and Defendant
submitted the documentation of her counseling sessions with
Plaintiff.

[Id. at ¶¶ 50-56; Second Supplement, Exhs. 12-15.]
30

Defendant also submitted the documents and/or records that
Ms. Windrath provided to Plaintiff during the counseling sessions
after the extension of her probation to show Plaintiff her
errors.

[Windrath Decl., Exh. 16.]

Further, Ms. Windrath states

that, “[i]n January of 2014, [she] received a petition from
Plaintiff’s co-workers indicating she was difficult to work with
and rude.”

[Windrath Decl. at ¶ 69; Second Supplement, Exh. 18

(petition).]

Ms. Windrath neither initiated the petition nor

solicited the signatures on it.

[Windrath Decl. at ¶ 69.]

Ultimately, “[i]n February 2014, [Ms. Windrath] recommended . . .
that Plaintiff be terminated because she continued making errors,
many errors she had made previously and was counseled on, she did
not improve her relationship with her co-workers, she was
argumentative and combative to supervisors, co-workers and
customers.”

[Id. at ¶ 57, Exh. 17 at 2 (Nine-Month PPER

recommending termination).]

Even viewing the record in the light

most favorable to Plaintiff, Defendant has carried its burden to
present a legitimate, nondiscriminatory reason for the
termination of Plaintiff’s employment.
3.

Pretext

Thus, the burden shifts back to Plaintiff to raise a
triable issue of fact as to whether Defendant’s reasons for the
extension of her probation and her termination were merely
pretext for unlawful discrimination.
31

See Noyes, 488 F.3d at

1168.
An employee can prove pretext either:
(1) “directly, by showing that unlawful
discrimination more likely motivated the
employer”; or (2) “indirectly, by showing that the
employer’s proffered explanation is unworthy of
credence because it is internally inconsistent or
otherwise not believable.” Fonseca v. Sysco Food
Servs. of Ariz., Inc., 374 F.3d 840, 849 (9th Cir.
2004) (internal quotation marks omitted). . . .
Mayes v. WinCo Holdings, Inc., 846 F.3d 1274, 1280 (9th Cir.
2017) (some citations omitted).

In order to survive summary

judgment, the plaintiff must show that a genuine issue of
material fact exists regarding pretext, either directly or
indirectly.

See id.

Plaintiff’s work performance in the period leading up
to her Six-Month PPER and her Nine-Month PPER is well-documented.
However, Plaintiff contests parts of her EPEWs and PPERs.

For

example, Plaintiff alleges that some of the reports in her
personnel file have been falsified.

After Ms. Windrath made a

complaint about Plaintiff being rude to a customer, “Alan”
offered to train Plaintiff.

According to Plaintiff, although a

report in her file states that she failed to change after Alan
coached her, Alan did not actually do any coaching with her.
[Pltf. Depo. at 185.]

Even construing the record in the light

most favorable to Plaintiff, she has not identified sufficient
evidence to raise a triable issue of fact as to whether
Defendant’s explanation that it terminated her employment based
32

on substandard performance “is unworthy of credence because it is
internally inconsistent or otherwise not believable.”

See

Fonseca, 374 F.3d at 849.
The closer question is: has Plaintiff raised a triable
issue of fact as to whether unlawful discrimination motivated
Defendant’s termination of her employment?

Plaintiff has

presented evidence that Ms. Windrath had a discriminatory animus
against Chinese Clerks but the record, even viewed in the light
most favorable to Plaintiff, falls short of raising a genuine
issue of fact for trial as to whether Ms. Windrath’s
discriminatory animus more likely than not motivated both her
recommendation to terminate Plaintiff’s employment, and
Defendant’s ultimate decision to terminate Plaintiff’s
employment.
This Court therefore finds that Plaintiff failed to
raise a genuine issue of fact for trial regarding pretext, either
directly or indirectly.
C.

Summary
Plaintiff has failed to raise a triable issue of fact

as to her Title VII national origin discrimination claim either
based on direct and circumstantial evidence or under the
McDonnell Douglas framework.

Defendant is therefore entitled to

judgment as a matter of law as to Plaintiff’s Title VII national
origin discrimination claim.

See Fed. R. Civ. P. 56(a) (“The
33

court shall grant summary judgment if 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.”).

The Motion for

Summary Judgment is granted as to Count I.
III. IIED Claim
This district court has recognized that:
Courts have similarly determined that IIED claims
arising out of employment discrimination are
barred by [Haw. Rev. Stat.] § 386-5. In Yang v.
Abercrombie & Fitch Stores, the Hawaii
Intermediate Court of Appeals (“ICA”) held that
the exclusivity provision of Hawaii’s Workers’
Compensation Law bars IIED claims that do not
relate to sexual harassment or sexual assault.
284 P.3d 946, 950, 955-56 (Haw. Ct. App. 2012).
The Ninth Circuit has also ruled that an IIED
claim related to employment discrimination is
barred by the exclusivity provision. See Courtney
v. Canyon Television & Appliance Rental, Inc., 899
F.2d 845, 851 (9th Cir. 1990).

Courts in this district, including this
Court, have reached the same determination,
holding that IIED claims not based on sexual
harassment or sexual assault are barred by
Hawaii’s Worker’s Compensation Law. See, e.g.,
Kuehu v. United Airlines, Inc., Civ. No. 16-00216
ACK-KJM, 2016 WL 4445743, at *8 (D. Haw. Aug. 23,
2016); Souza v. Silva, Civ. No. 12-00462 HG-BMK,
2014 WL 2452579, at *16 (D. Haw. May 30, 2014);
Chang v. Straub Clinic & Hosp., Inc., Civ. No. 1200617 DKW-RLP, 2014 WL 47947, at *9 (D. Haw.
Jan. 7, 2014), reconsideration denied, Civ. No.
12-00617 DKW, 2014 WL 712613 (D. Haw. Feb. 21,
2014). . . .
Klingman v. Cty. of Maui, Civ. No. 16-00399 ACK-RLP, 2016 WL
6996986, at *6–7 (D. Hawai`i Nov. 29, 2016).
34

In the instant case, Plaintiff’s IIED claim arises out
of alleged employment discrimination on the basis of her national
origin and because she made complaints about the national origin
discrimination.

Because her IIED claim does not relate to either

sexual harassment or sexual assault, the claim is barred by
§ 386-5.

There are no genuine issues of fact relevant to

Plaintiff’s IIED claim and Defendant is entitled to judgment as a
matter of law as to Count II.
Dismissal of Count II does not preclude Plaintiff from
seeking damages for emotional distress as part of her remaining
Count III claim.
IV.

See Klingman, 2016 WL 6996986, at *7.

Title VII Retaliation Claim
At the outset, this Court notes that Plaintiff brings

her retaliation claim pursuant to 42 U.S.C. § 12203.
at ¶ 28.]

[Complaint

However, § 12203(a) prohibits retaliation against

individuals who oppose acts or practices prohibited by Title 42,
Chapter 126.

Chapter 126 is titled “Equal Opportunity for

Individuals with Disabilities.”

Neither the evidence in the

current record nor the allegations of the Complaint indicate that
Plaintiff is an individual with disabilities.

Although Count III

expressly invokes § 12203, it is apparent to the Court – reading
the Complaint as a whole – that this was an error.

The Court

construes Count III as alleging a Title VII retaliation claim

35

pursuant to 42 U.S.C. § 2000e-3(a).11
As with the disparate treatment discrimination claim,
Plaintiff can establish her Title VII retaliation claim either
through direct evidence or through the McDonnell Douglas
analysis.

See Black v. Correa, Civil No. 07-00299 DAE-LEK, 2009

WL 1789294, at *18 (D. Hawai`i June 22, 2009) (some citations
omitted) (citing Vasquez v. County of Los Angeles, 349 F.3d 634,
640 (9th Cir. 2003)).

“The elements of a prima facie retaliation

claim are, (1) the employee engaged in a protected activity,
(2) she suffered an adverse employment action, and (3) there was
a causal link between the protected activity and the adverse
employment action.”

Davis v. Team Elec. Co., 520 F.3d 1080,

1093–94 (9th Cir. 2008).

“Protected activity includes the filing

of a charge or a complaint, or providing testimony regarding an
employer’s alleged unlawful practices, as well as engaging in
other activity intended to oppose an employer’s discriminatory
practices.”

Raad v. Fairbanks N. Star Borough Sch. Dist., 323

F.3d 1185, 1197 (9th Cir. 2003) (brackets, citation, and internal

11

Section 2000e-3(a) states, in pertinent part:
It shall be an unlawful employment practice for an
employer to discriminate against any of his
employees . . . 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.
36

quotation marks omitted).
Plaintiff made complaints to “Alan” and Rick Akase
about the way that Ms. Windrath treated her.

When she made the

complaint to Rick, “Radford” was also present.
148.]

[Pltf. Depo. at

Radford Cameros was Ms. Windrath’s direct supervisor in

February 2014, when Ms. Windrath recommended to Mr. Cameros and
Mr. Akase that Plaintiff be terminated.
¶ 57.]

[Windrath Decl. at

Thus, there is sufficient evidence in the record to

establish the first element of Plaintiff’s prima facie case –
that she engaged in protected activity.

As previously noted,

Plaintiff’s termination constitutes an adverse employment action.
As with Plaintiff’s disparate treatment claim, very
little evidence is necessary to raise a triable issue of fact
regarding Defendant’s motive for her termination.
F.2d at 1009.

See Lowe, 775

“[A]ny indication of discriminatory motive –

including evidence as diverse as the [defendant’s] reaction, if
any, to [plaintiff’s] legitimate civil rights activities . . . –
may suffice to raise a question that can only be resolved by a
factfinder.”

Id. (some alterations in Lowe).

According to Plaintiff, Ms. Windrath threatened to
terminate her employment if she continued complaining about
discrimination, requesting reevaluation, and “talk[ing] bad about
[Ms. Windrath] to other people.”

[Pltf. Depo. at 174.]

Plaintiff testified that Ms. Windrath made this threat more than
37

ten times, but less than twenty times.

[Id. at 173-74.]

Ms. Windrath states that, until approximately one month after she
recommended Plaintiff’s termination, she did not know that
Plaintiff made a complaint alleging that she discriminated
against Plaintiff because Plaintiff is Chinese.

[Windrath Decl.

at ¶ 65.]
Plaintiff’s testimony about Ms. Windrath’s statements
is specific and substantial evidence of Defendant’s motive for
her termination because the statements were: made directly to
Plaintiff by her supervisor; reflected the basis for the adverse
employment action that occurred thereafter; and were
“inextricably intertwined with” Plaintiff’s protected activity.
See Machado, 2013 WL 3944511, at *9.

Plaintiff has therefore

established the third element of her prima facie case through
direct evidence.

Further, even though Defendant has presented

evidence of a legitimate, nondiscriminatory reason for
Plaintiff’s termination, Plaintiff’s direct evidence of a
retaliatory motive for her termination “necessarily . . .
raise[s] a genuine issue of material fact with respect to the
legitimacy or bona fides of the employer’s articulated reason for
its employment decision.”
(emphasis in Cordova).

See Cordova, 124 F.3d at 1150

Because Plaintiff has raised a genuine

issue of material fact as to the portion of her retaliation claim
based on her termination, Defendant’s Motion for Summary Judgment
38

is denied as to that portion of Count III.
As previously noted, the extension of Plaintiff’s
probationary period was also an adverse employment action, but
Plaintiff has not established that the other actions she bases
her claims upon constitute adverse employment actions.

Plaintiff

has not presented any evidence which suggests that there was a
causal link between the extension of her probationary period and
her complaints about national origin discrimination.

Plaintiff

has therefore failed to establish her prima facie case as to the
portions of her retaliation claim based on either the extension
of her probationary period or any other alleged adverse
employment action.

Defendant is entitled to judgment as a matter

of law as to those portions of Count III.
CONCLUSION
On the basis of the foregoing, Plaintiff’s Motion for
Leave to File Late Opposition to Defendant’s Motion for Summary
Judgment Filed on March 8, 2017, which Plaintiff filed April 14,
2017, is HEREBY DENIED, and Defendant’s Motion for Summary
Judgment, filed March 8, 2017, is HEREBY GRANTED IN PART AND
DENIED IN PART.

This Court GRANTS summary judgment in favor of

Defendant as to Counts I and II of Plaintiff’s Complaint, filed
December 22, 2014, DENIES the Motion for Summary Judgment as to
the portion of Count III alleging that Plaintiff’s termination
was retaliatory, and GRANTS summary judgment in favor of
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Defendant as to all other portions of Count III.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 14, 2017.

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

QIN LI VS. CITY AND COUNTY OF HONOLULU; CIVIL 14-00573 LEK-RLP;
ORDER DENYING PLAINTIFF’S MOTION FOR LEAVE TO FILE LATE
OPPOSITION TO DEFENDANT’S MOTION FOR SUMMARY JUDGMENT FILED ON
MARCH 8, 2017; AND GRANTING IN PARTY AND DENYING IN PART
DEFENDANT’S MOTION FOR SUMMARY JUDGMENT

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