Kuehu v. United Airlines, Inc.

Filing 27

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR PARTIAL DISMISSAL OF COURT re 7 , 25 - Signed by JUDGE ALAN C KAY on 8/23/2016. "For the foregoing reasons, the Court GRANTS in part and DENIES in pa rt Defendant's Motion for Partial Dismissal of Complaint. In sum, the Court DISMISSES with prejudice Plaintiff's IIED claim both because it violates the two-year statute of limitations for IIED claims in Hawaii, and because it is barred by the exclusivity provision of Hawaii's workers' compensation law. Additionally, the Court HOLDS that Plaintiff cannot rely on events occurring prior to April 2, 2009 for purposes of her ADAAA claims, and that she cannot rely on events occurring prior to July 31, 2009 for purposes of her claims brought under Hawaii Revised Statute § 378-2. Finally, the Court HOLDS that Plaintiff may not seek either punitive or compensatory damages for her federal retaliation claim, but that she may seek punitive damages for her federal discrimination claim." (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). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
___________________________________
)
DONNA KUEHU,
)
)
Plaintiff,
)
)
v.
) Civ. No. 16-00216 ACK-KJM
)
UNITED AIRLINES, INC., a foreign
)
profit corporation; JOHN DOES
)
1-10; JANE DOES 1-10; DOE
)
CORPORATIONS 1-10; DOE
)
PARTNERSHIPS 1-10; DOE
)
UNINCORPORATED ORGANIZATIONS 1-10; )
and DOE GOVERNMENTAL AGENCIES
)
1-10,
)
)
Defendants.
)
___________________________________)
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT’S MOTION
FOR PARTIAL DISMISSAL OF COMPLAINT
For the reasons set forth below, the Court GRANTS in
part and DENIES in part Defendant United Airlines, Inc.’s Motion
for Partial Dismissal of Complaint Filed December 22, 2015.

ECF

No. 7.
PROCEDURAL BACKGROUND
On December 22, 2015, Plaintiff Donna Kuehu
(“Plaintiff”) filed a Complaint against Defendant United
Airlines, Inc. (“Defendant”) in the Circuit Court of the First
Circuit, State of Hawaii.

Compl., ECF No. 1-2.

On May 4, 2016,

Defendant removed the case to federal court based on the fact
that the Complaint alleges claims arising under federal law and

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that there is diversity of citizenship between the parties.
Notice of Removal, ECF No. 1.

Plaintiff alleges both federal

and state law claims of disability discrimination and
retaliation, as well as a claim for intentional infliction of
emotional distress (“IIED”).

Compl. ¶¶ 107-22, 162-64.

On May 11, 2016, Defendant filed a Motion for Partial
Dismissal of Complaint Filed December 22, 2015, along with a
Memorandum in Support of Motion (“Motion”), seeking to dismiss
certain claims under the Americans with Disabilities Act
Amendments Act (“ADAAA”) and Hawaii Revised Statute § 378-2 as
time-barred; to dismiss Plaintiff’s IIED claim due to its being
barred by the applicable statute of limitations and the
exclusivity provision of Hawaii’s workers’ compensation law; and
to dismiss Plaintiff’s claims for punitive damages as to her
discrimination claim brought under the ADAAA, as well as her
claims for both punitive and compensatory damages for her
retaliation claim brought under the ADAAA.

Motion at 2.

Plaintiff filed a Memorandum in Opposition to
Defendant’s Motion (“Opposition”) on August 1, 2016, ECF No. 21,
and Defendant filed a Reply Memorandum in Support of Motion
(“Reply”) on August 8, 2016, ECF No. 24.
The Court held a hearing regarding Defendant’s Motion
on August 22, 2016.

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FACTUAL BACKGROUND
On August 28, 1989, Plaintiff accepted a position with
Defendant as a Reservations Sales and Service Representative in
its Honolulu call center, which was located in downtown
Honolulu.

Compl. ¶ 13.

Around September 2000, Defendant

relocated the call center to a warehouse building located at
Honolulu International Airport.

Id. ¶¶ 16, 18.

The Complaint

alleges that while working at the new building, Plaintiff was
“exposed to chronic events of reported ‘rotten egg sewer gas
odor’ and ‘plumbing and sewage problems’, noxious/toxic
substances, gases and/or biological pathogens including
bacteria, viruses and fungus microorganisms over an extended
period of time.”

Id. ¶ 19.

In May 2001, Plaintiff became totally disabled as a
result of a pre-existing condition of chronic lumbalgia (lower
back pain).

Id. ¶ 21; Opposition at 2.

She therefore took a

leave of absence from work from May 30, 2001 through June 11,
2001.

Compl. ¶ 21; Opposition at 2.
On August 22, 2005, Plaintiff was exposed to

“uncontrolled harmful conditions” at the call center and was
evacuated by the Hazardous Material Unit of the Honolulu Fire
Department.

Compl. ¶ 25.

The next day, Plaintiff’s physician

advised her that she was being exposed to hydrogen sulfide in
the form of sewage backup, and certified sick leave for
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Plaintiff from August 22, 2005 to August 29, 2005.
31.

Id. ¶¶ 29-

Plaintiff also filed a workers’ compensation claim in

connection with the August 22 incident.

Id. ¶ 31.

On or around January 25, 2006, following an incident
in Defendant’s building involving the release of a noxious/toxic
substance, Plaintiff’s physician assessed her as medically
unable to work.

Id. ¶ 35-37.

The next day, Defendant placed

Plaintiff on extended illness status.

Id. ¶ 38.

Plaintiff also

appears to have filed another workers’ compensation claim for
the January 25 incident.

Id. ¶ 38, 42.

On October 2, 2009, after meeting with her medical
providers, Plaintiff provided Defendant with a release to return
to work and a request for a reasonable accommodation.

Id. ¶ 66.

On October 26, 2009, pursuant to a request by a physician in
Defendant’s medical department, Plaintiff’s physician provided a
further explanation of conditions and recommendations for
Plaintiff.

Id. ¶ 73.

On October 30, 2009, Defendant’s

physician completed an “Assessment of Functional Capabilities”
for Plaintiff as part of a “post-accident/illness assessment of
suitability for return to work.”

Id.

The physician assessed

Plaintiff with “long-term functional limitations,” and
restricted her from working in the call center building or for
longer than 20 hours per week.

Id.

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Plaintiff contends that throughout October and into
November 2009 she attempted to schedule a meeting with
Defendant’s human resources manager, Denise Peterson, to discuss
the appropriate process for Plaintiff’s reasonable accommodation
request.

Id. ¶¶ 67-72, 74-75, 78-80.

until November 16, 2009.

This meeting was not held

Id. ¶¶ 80, 82.

During the meeting,

Peterson offered Plaintiff a return to work at the call center
building, where she could work 30 hours per week with a paper
mask.

Id. ¶ 80.

Plaintiff did not accept the position because

it did not comport with the physicians’ recommendations.

Id.

¶¶ 80-81.
Meanwhile, while waiting to hear back on her request
for a reasonable accommodation, Plaintiff had applied to an open
job posting for a regular part-time position as a customer
service representative in Kona, Hawaii.

Id. ¶ 74.

Following

her November 16 reasonable accommodation meeting, Plaintiff also
applied for positions in Chicago, Illinois; St. Louis, Missouri;
and Harrisburg, Pennsylvania.

Id. ¶ 83.

On December 9, 2009, Plaintiff was contacted regarding
the position in Kona by a manager from Sourceright Solutions, a
third-party contractor Defendant used to assist in its hiring
processes.

Id. ¶¶ 84-85.

Plaintiff attended a job testing,

group interview, and one-on-one interview for the position on
December 17, 2009.

Id. ¶ 88.

She received a phone call on
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January 7, 2010 informing her that she had not been selected for
the position in Kona, and learned that she received a “very poor
assessment rating” and failed her group interview.
94.

Id. ¶¶ 92,

Plaintiff was told that she had passed the “written part”

of the interview process, but that “her response to ‘teamwork’
[] was not acceptable.”

Id. ¶ 95.

On January 12, 2010,

Plaintiff received a phone call from Peterson informing her that
she had been terminated from her position at the company,
effective January 8, 2010.

Id. ¶ 99.

On January 27, 2010, Plaintiff filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”) and the Hawaii Civil Rights Commission (“HCRC”),
alleging both discrimination based on her disability and
retaliation by Defendant.1

Id. ¶ 102.

1

On September 26, 2015,

Defendant notes in its Motion that Plaintiff’s Complaint
incorrectly states the date Plaintiff filed her Charge of
Discrimination as January 25, 2010. Motion at 4 n.1. As the
Charge of Discrimination form itself indicates, however, the
form was filed on January 27, 2010. Ex. B to Motion, ECF No.
7-4. “In ruling on a 12(b)(6) motion, a court may generally
consider only allegations contained in the pleadings, exhibits
attached to the complaint, and matters properly subject to
judicial notice.” Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th
Cir. 2007). However, “courts may take into account ‘documents
whose contents are alleged in a complaint and whose authenticity
no party questions, but which are not physically attached to the
[plaintiff's] pleading.’” Davis v. HSBC Bank Nev., N.A., 691
F.3d 1152, 1160 (9th Cir. 2012) (quoting Knievel v. ESPN, 393
F.3d 1068, 1076 (9th Cir. 2005) (alteration in original). While
the Charge of Discrimination is not attached to her Complaint,
Plaintiff explicitly refers to the form in her Complaint and
(continued . . .)
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Plaintiff received from the EEOC a right-to-sue letter dated
September 23, 2015.

Id. ¶ 105.

She received a right-to-sue

letter from the HCRC on December 17, 2015.

Id. ¶ 106.

Plaintiff thereafter filed her Complaint in the Circuit Court of
the First Circuit, State of Hawaii, on December 22, 2015.
STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes
the Court to dismiss a complaint that fails “to state a claim
upon which relief can be granted.”

The Court may dismiss a

complaint either because it lacks a cognizable legal theory or
because it lacks sufficient factual allegations to support a
cognizable legal theory.

Conservation Force v. Salazar, 646

F.3d 1240, 1242 (9th Cir. 2011).
On a Rule 12(b)(6) motion to dismiss, the Court
accepts all well-pleaded factual allegations as true and
construes them in the light most favorable to the nonmoving
party.

Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777,

783 (9th Cir. 2012).

The Court may not dismiss a “complaint

containing allegations that, if proven, present a winning
case . . . no matter how unlikely such winning outcome may

does not dispute its authenticity. In fact, Plaintiff concedes
in her Opposition that the form was actually filed on January
27, 2010. Opposition at 10.
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appear to the district court.”

Balderas v. Countrywide Bank,

N.A., 664 F.3d 787, 791 (9th Cir. 2011).
Nonetheless, “conclusory allegations of law and
unwarranted inferences are insufficient to defeat a motion to
dismiss.”

Fayer v. Vaughn, 649 F.3d 1061, 1064 (9th Cir. 2011)

(citations omitted).

“[O]nly pleaded facts, as opposed to legal

conclusions, are entitled to assumption of the truth.”

United

States v. Corinthian Colls., 655 F.3d 984, 991 (9th Cir. 2011).
A “formulaic recitation of the elements of a cause of action”
will not defeat a motion to dismiss.

Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (internal citations and
quotations omitted).

The complaint must contain sufficient

factual matter, accepted as true, to “state a claim to relief
that is plausible on its face.”

Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Twombly, 550 U.S. at 570).

“The

plausibility standard . . . asks for more than a sheer
possibility that a defendant has acted unlawfully.

Where a

complaint pleads facts that are ‘merely consistent with’ a
defendant’s liability, it ‘stops short of the line between
possibility and plausibility of entitlement to relief.’”

Iqbal,

556 U.S. at 678 (quoting Twombly, 550 U.S. at 556-57) (some
quotation marks omitted).
The Court may, but is not required to, “consider
certain materials — documents attached to the complaint,
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documents incorporated by reference in the complaint, or matters
of judicial notice — without converting the motion to dismiss
into a motion for summary judgment.”

United States v. Ritchie,

342 F.3d 903, 908 (9th Cir. 2003); see Davis, 691 F.3d at 115960 (court not required to incorporate documents by reference).
The Court may also consider documents whose contents are alleged
in a complaint and whose authenticity is not questioned by any
party.

Davis, 691 F.3d at 1160.

The Court need not accept as

true allegations that contradict the complaint’s exhibits,
documents incorporated by reference, or matters properly subject
to judicial notice.

Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580,

588 (9th Cir. 2008); Sprewell v. Golden State Warriors, 266 F.3d
979, 988 (9th Cir. 2001).
A court should grant leave to amend “even if no
request to amend the pleading was made, unless it determines
that the pleading could not possibly be cured by the allegation
of other facts.”

Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir.

2000) (en banc) (citations omitted).

Leave to amend “is

properly denied, however, if amendment would be futile.”
Carrico v. City & Cty. of S.F., 656 F.3d 1002, 1008 (9th Cir.
2011).

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DISCUSSION
I.

Time-Barred Claims

Defendant argues that Plaintiff cannot base her
discrimination or retaliation claims on certain acts that
occurred prior to the time bars set out by federal and state
law.

Motion at 6-9.

Where, as here, a plaintiff files charges

with both the EEOC and the HCRC, federal law requires that a
discrimination charge under ADAAA be filed with the EEOC within
300 days after the alleged discriminatory act.

42 U.S.C.

§ 12117(a) (incorporating 42 U.S.C. § 2000e-5(e)); Santa Maria
v. Pac. Bell, 202 F.3d 1170, 1176 (9th Cir. 2000) (overruled on
other grounds).

A charge of discrimination under Hawaii Revised

Statute § 378-2 must be filed with the HCRC within 180 days of
the alleged discriminatory act.

Haw. Rev. Stat. 368-11(c).

A

plaintiff that fails to file a charge for discrete
discriminatory or retaliatory acts within the requisite time
period loses the ability to recover for them.

Nat’l R.R.

Passenger Corp. v. Morgan, 536 U.S. 101, 110 (2002).
Because she filed her charge on January 27, 2010,
Plaintiff’s ADAAA claims are only timely to the extent they are
based on discriminatory or retaliatory acts that occurred on or
after April 2, 2009 (300 days before Plaintiff filed her charge
with the EEOC); and Plaintiff’s state claims under Hawaii
Revised Statute § 378-2 are only timely to the extent they are
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based on discriminatory or retaliatory acts that occurred on or
after July 31, 2009 (180 days before Plaintiff filed her charge
with the HCRC).
Plaintiff concedes that discrete acts occurring before
April 2, 2009 and July 31, 2009 cannot form the basis of her
federal or state law claims, respectively.

Opposition at 10.

However, she argues that these acts can be taken into account by
the Court to “show a pattern of conduct and as background
leading up to the actionable conduct of [Defendant].”

Id.

Yet

Defendant takes issue with this argument, stating, “[T]o the
extent Plaintiff may mean to assert that her claims are not
barred because they involve a ‘continuing violation,’ that
argument fails.”

Reply at 3.

“Generally, under the continuing violations doctrine,
discriminatory conduct contributing to a hostile work
environment claim, but falling outside of the statutory time
period for filing a claim, may be considered by the Court for
purposes of determining liability.”

Aoyagi v. Straub Clinic &

Hosp., Inc., 140 F. Supp. 3d 1043, 1053 (D. Haw. 2015) (citing
Morgan, 536 U.S. at 116-17).

Unlike discrete acts of

discrimination or retaliation, which “occur” on the day that
they “happen” and constitute “separate actionable ‘unlawful
employment practice[s],’” hostile work environment claims
involve repeated conduct and “occur[] over a series of days or
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perhaps years and . . . a single act of harassment may not be
actionable on its own.”

Morgan, 536 U.S. at 110, 114-15.

As

long as one act that contributes to a hostile work environment
claim occurs within the relevant filing period, the entire time
period encompassing the claim may be considered for purposes of
determining liability.

Id. at 117.

In evaluating whether various acts, taken together,
constitute one actionable hostile work environment claim, the
court considers “whether they were sufficiently severe or
pervasive, and whether the earlier and later events amounted to
the same type of employment actions, occurred relatively
frequently, or were perpetrated by the same managers.”

Porter

v. Cal. Dep’t of Corr., 419 F.3d 885, 893 (9th Cir. 2004)
(quotation marks and brackets omitted).

Additionally, while the

Ninth Circuit has “permitted suit on a continuing violation
theory evidenced but not specifically alleged in an EEOC charge
. . . the EEOC charge must at least sufficiently apprise the
EEOC, in general terms, of the alleged discriminatory parties
and the alleged discriminatory acts.”

Freeman v. Oakland

Unified Sch. Dist., 291 F.3d 632, 638 (9th Cir. 2002) (internal
citations and quotation marks omitted).
As Defendant points out, Plaintiff did not check the
“Continuing Action” box on her Charge of Discrimination.
Ex. B to Motion, ECF No. 7-4.

See

Further, the earliest events
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comprising the basis of Plaintiff’s claims to which the charge
makes reference occurred in October and November 2009.

See id.

The charge states that the basis of Plaintiff’s claims are
Defendant’s failure to either engage in an interactive process
regarding her request for a reasonable accommodation or provide
her with an effective reasonable accommodation; Defendant’s
decision not to hire Plaintiff for the position in Kona, for
which she believed she was qualified; and Defendant’s decision
to terminate her employment.

Id.

The EEOC charge does not allude to a pattern of
discriminatory conduct that persisted prior to October 2009.
Plaintiff merely states that she developed a disability while
working in January 2006, that Defendant was made aware of this
condition, and that she was thereafter unable to work until
October 2009.

Id.

Thus, the events asserted in the charge are

cabined to the statutory time periods for filing a claim,
suggesting that it was not Plaintiff’s intent to assert a
continuing violation claim comprised of events that occurred
before the federal and state time bars.
Furthermore, even if the Court were to determine that
Plaintiff asserted a continuing violation claim, the earlier
acts alleged in the Complaint do not give rise to a pattern of
discrimination that is sufficiently “severe or pervasive” or at
the level of frequency that would constitute a hostile work
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environment.

Plaintiff’s Complaint makes reference to instances

where Defendant denied liability for Plaintiff’s January 25,
2006 injury for purposes of Plaintiff’s workers’ compensation
claim, Compl. ¶ 41; sent letters to Plaintiff demanding the
return of temporary disability insurance benefits, due to the
fact that she had a pending workers’ compensation claim, id.
¶¶ 43-45; and failed to pay for Plaintiff’s medical treatments,
despite being ordered to do so pursuant to an award of workers’
compensation Plaintiff had received, id. ¶¶ 49, 54, 60.

The

Court is not persuaded that these actions suggest Defendant was
discriminating against Plaintiff; rather, the actions seem to
reflect certain legal decisions Defendant made in its ongoing
workers’ compensation dispute with Plaintiff.
Plaintiff also alleges that Defendant inquired as to
whether Plaintiff would be taking Family Medical Leave Act leave
in connection with the August 22, 2005 incident, to which
Plaintiff responded that this would not be appropriate and that
she would instead be using her sick leave to make an appointment
with her physician.

Id. ¶ 28.

This simple inquiry does not

appear to involve disability discrimination, especially since
Plaintiff indeed used her sick leave without issue during this
time period.

Id. ¶ 31.

Finally, Plaintiff contends that in January 2006
Defendant placed her on extended illness status despite the fact
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that she had “hundreds of hours of non-occupational and
occupational sick leave available.”

Id. ¶ 38.

During this

time, Defendant made various demands that she attend an
investigative meeting in the building determined to be the cause
of her medical condition.

Id. ¶¶ 45, 47, 51.

If these actions

could be said to evince discrimination at all, a proposition of
which the Court is skeptical, they certainly do not give rise to
a pattern of discrimination, as required for a continuing
violation claim.

See Draper v. Coeur Rochester, Inc., 147 F.3d

1104, 1108 (9th Cir. 1998) (finding that “[b]ecause
[plaintiff’s] hostile work environment claim is not based upon a
series of discrete and unrelated discriminatory actions, but is
instead premised upon a series of closely related similar
occurrences that took place within the same general time period
and stemmed from the same source, her allegations set forth a
claim of a continuing violation”).

The Court therefore

concludes that the acts asserted in the Complaint are not
severe, pervasive, or frequent enough to state a continuing
violation claim.
For the foregoing reasons, the Court HOLDS that
Plaintiff cannot rely on events occurring prior to April 2, 2009
for purposes of her ADAAA claims, and that she cannot rely on
events occurring prior to July 31, 2009 for purposes of her
claims brought under Hawaii Revised Statute § 378-2.
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II.

IIED Claim
a. Statute of Limitations

Defendant next argues that the Court should dismiss
Plaintiffs IIED claim because it is barred by the applicable
statute of limitations.

Motion at 9-12.

Plaintiff does not

oppose this argument in her Opposition.
The Hawaii tort statute provides a two-year statute of
limitations, which has been determined to apply to IIED claims.
Haw. Rev. Stat. § 657-7; see Hale v. Haw. Publ’ns, Inc., 468 F.
Supp. 2d 1210, 1232 (D. Haw. 2006).

Defendant argues that

because the last wrongful act alleged to have been committed by
Defendant was the termination of Plaintiff’s employment, which
occurred in January 2010, any IIED claim Plaintiff can assert is
barred by the statute of limitations.

See Motion at 10.

Further, as Defendant argues in its Motion, “parallel
avenues of relief are generally not tolled by a Title VII
administrative remedy, even if the claims are based on the same
facts and directed toward the same ends.”
at 1232.

Hale, 468 F. Supp. 2d

Thus, “[w]hen a plaintiff fails to timely file claims

that are separate, distinct, and independent from her Title VII
claims, those claims are barred.”

Id.; see also Johnson v. Ry.

Express Agency, 421 U.S. 454, 461 (1975).

This Court has

previously determined that IIED claims are separate, distinct,
and independent from Title VII claims because federal
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administrative proceeds are not a prerequisite to the filing of
an IIED claim.

Hale, 468 F. Supp. 2d at 1232-33.

true of claims brought pursuant to the ADAAA.

The same is

Thus, Plaintiff’s

EEOC charge does not toll the statute of limitations for her
IIED claim.
Defendant likewise asserts that Plaintiff’s HCRC
charge did not toll the statute of limitations for her IIED
claim.

Because the Court has been unable to locate any Hawaii

state law precedent regarding this point, it looks to federal
law, as it did in Hale.

Id. at 1233.

Thus, similar to its

inquiry with respect to federal administrative proceedings, the
Court must determine “whether the administrative process
outlined by Chapter 378 may have been intended to delay
independent avenues of redress for IIED claims.”2

2

Id.

Defendant cites Hale for its contention that Plaintiff’s HCRC
charge did not toll the statute of limitations for her IIED
claim. Motion at 11-12. In Hale, this Court found that state
administrative proceedings regarding plaintiff’s sexual
harassment claims did not toll the statute of limitations on her
related IIED claim. Hale, 468 F. Supp. 2d at 1233. The Court
reasoned that because individuals are not required to file their
sexual harassment claims with the HCRC, “[i]t logically follows
that IIED claims that are related to sexual harassment claims
need not be pursued in an administrative proceeding.” Id.; see
also Haw. Rev. Stat. § 378-3(10) (stating that the general
requirement that complaints alleging discrimination under state
law first be filed with the HCRC does not “preclude any employee
from bringing a civil action for sexual harassment or sexual
assault and infliction of emotional distress”). In the instant
case, Plaintiff alleges discrimination and retaliation based on
disability, which claims Chapter 378 of the Hawaii Revised
(continued . . .)
- 17 -

Hawaii Revised Statute § 368-11 requires a plaintiff
to file with the HCRC a complaint alleging a discriminatory
practice made unlawful by Part I of Chapter 378.

The relevant

question, then, is whether HCRC administrative proceedings are
also a prerequisite to a plaintiff bringing an IIED claim that
is based on the same facts underlying the discrimination and
retaliation claims brought under Chapter 378.

In Simmons v.

Aqua Hotels and Resorts, Inc., the Hawaii Intermediate Court of
Appeals (“ICA”) found that the lower court had erred when it
dismissed plaintiff’s IIED claim against a defendant; the lower
court had dismissed the claim because plaintiff failed to name
that defendant in an HCRC complaint that alleged a claim for age
discrimination.

310 P.3d 1026, 1031 n.3 (Haw. Ct. App. 2013).

The ICA stated that “[t]he IIED claim was a separate claim
independent of [p]laintiff’s HRS § 378-2 claim and was not
subject to the statutory provisions that require filing an HCRC
complaint before filing suit.”

Id.; see also Hale, 468 F. Supp.

2d at 1233 (“The IIED claim is also distinct and independent
from the [state] retaliation claims.”).
Thus, the Court concludes that HCRC administrative
proceedings are not a prerequisite to bringing an IIED claim,
Statutes does require to be filed with the HCRC in the first
instance. See Haw. Rev. Stat. §§ 368-11, 378-4. This portion
of the Court’s analysis in Hale is therefore inapplicable to the
present case.
- 18 -

even if that claim arises from the same conduct that forms the
basis of a plaintiff’s discrimination or retaliation claims.
Accordingly, Plaintiff's HCRC charge did not toll the statute of
limitations for her IIED claim.
Because Plaintiff failed to file her IIED claim within
the applicable two-year statute of limitations, the Court holds
that Plaintiff is barred from bringing this claim.

The Court

therefore GRANTS Defendant’s Motion as to this issue, and
DISMISSES Plaintiff’s IIED claim.
b. Exclusivity Provision of Hawaii Workers’
Compensation Law
Defendant alternatively argues that Plaintiff’s IIED
claim is barred by Hawaii’s workers’ compensation law, which
contains an exclusivity provision stating:
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.
Haw. Rev. Stat. § 386-5.
In Yang v. Abercrombie & Fitch Stores, the ICA
determined that this provision bars IIED claims that do not
- 19 -

relate to sexual harassment or sexual assault.
950, 955 (Haw. Ct. App. 2012).

284 P.3d 946,

Additionally, the Ninth Circuit

has ruled that IIED claims arising out of alleged employment
discrimination are barred by § 386-5.

Courtney v. Canyon

Television & Appliance Rental, Inc., 899 F.2d 845, 851 (9th Cir.
1990).

Defendant argues that because Plaintiff does not raise

allegations of either sexual harassment or sexual assault, her
IIED claim is barred.

Motion at 12-13.

In response, Plaintiff argues that a District of
Hawaii case has “recognized . . . the fact that HRS 386-5 might
not be the exclusive remedy for intentional conduct such as
discrimination.”

Opposition at 11-12 (citing Chan v. Wells

Fargo, 124 F. Supp. 3d 1045 (D. Haw. 2015)).

However, as

Defendant points out, this argument is both misleading and lacks
context.

See Motion at 7.

As Defendant points out, the court

in Chan simply made an observation that it had declined in two
of its prior decisions to reach a definitive ruling on the scope
of the § 386-5 exclusivity bar.
60.

Chan, 124 F. Supp. 3d at 1059-

The court had questioned in those earlier cases whether the

exclusivity provision provided an exception for an IIED claim
resulting from any form of discrimination, but ultimately
concluded in Chan that the provision does in fact bar
“independent IIED claims that are not related to sex.”

- 20 -

Id.

Plaintiff also contends that in an unpublished,
summary disposition order, the ICA noted 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.”

Opposition at 12 (citing Bolla v.

Univ. of Haw., 131 Haw. 252, 2014 WL 80554, at *2 (Haw. Ct. App.
Jan. 8, 2014).

From this language Plaintiff argues that an IIED

claim related to a general claim of discrimination “may not” be
barred by the exclusivity provision.

See Opposition at 12.

Yet

as the Chan court noted, “[t]he Bolla decision may have used
‘sexual’ as an adjective modifying not only ‘harassment,’ but
also ‘assault’ and ‘discrimination.’”
1059.

Chan, 124 F. Supp. 3d at

Thus, Bolla does not appear to expand the IIED exception

to the exclusivity provision, at least as to claims other than
sex-based claims.
At the end of the day, Hawaii courts and federal
courts applying Hawaii law have held time and again that the
exclusivity provision of Hawaii’s workers’ compensation law bars
IIED claims, unless those claims relate to sexual harassment or
sexual assault.

See, e.g., Yang, 284 P.3d at 950, 955; Chan,

124 F. Supp. 3d at 1059-60; see also Shahata v. W Steak Waikiki,
LLC, 494 Fed. App’x 729, 731 (9th Cir. 2012) (“Except in cases
of sexual harassment or abuse, the statute bars civil claims by

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an employee against his employer for negligent infliction of
emotional distress arising from employment.”).
Because Plaintiff alleges disability discrimination
and retaliation, the Court finds that her IIED claim is barred
by § 386–5.

The Court therefore GRANTS Defendant’s Motion in

this respect, and DISMISSES Plaintiff’s IIED claim on this
alternative basis.
III. Punitive and Compensatory Damages Under the ADAAA
Finally, Defendant argues that Plaintiff cannot
recover punitive damages for her federal discrimination claim,
and that she cannot recover either punitive or compensatory
damages for her federal retaliation claim.

Motion at 13-14.

Plaintiff concedes as much in her Opposition.

Opposition at 12.

The Ninth Circuit has held that “punitive and
compensatory damages are not available for ADA retaliation
claims.”

Alvarado v. Cajun Operating Co., 588 F.3d 1261, 1270

(9th Cir. 2009).

“[S]uch claims are limited to the equitable

relief specified in 42 U.S.C. § 2000e-5(g)(1) . . . .”

Id.

However, Defendant is incorrect that Plaintiff may not
seek punitive damages for her federal discrimination claim.
Defendant cites Barnes v. Gorman, 536 U.S. 181, 189 (2002) for
its assertion that “punitive damages may not be awarded in
private suits brought under the ADA.”

Motion at 13.

However,

the holding in Barnes was limited to § 202 of the ADA, which
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“prohibits discrimination against the disabled by public
entities.”3

Barnes, 536 U.S. at 184, 189.

The instant case

alleges employment discrimination by a private corporation.

The

Supreme Court has held, “[P]unitive damages are available in
claims under . . . the Americans with Disabilities Act of 1990
(ADA) . . . . Punitive damages are limited, however, to cases in
which the employer has engaged in intentional discrimination and
has done so ‘with malice or with reckless indifference to the
federally protected rights of an aggrieved individual.’”
Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 529-30 (1999); see
also 42 U.S.C. § 1981a(a)(2) (providing a right of recovery of
punitive damages in cases involving discrimination in violation
of 42 U.S.C. § 12112, section 102 of the ADA).
Accordingly, the Court HOLDS that Plaintiff may not
seek either punitive or compensatory damages for her federal
retaliation claim, but that she may continue to seek punitive
damages as a remedy for her federal discrimination claim.
CONCLUSION
For the foregoing reasons, the Court GRANTS in part
and DENIES in part Defendant’s Motion for Partial Dismissal of

3

The Barnes court also held that punitive damages could not be
awarded in suits brought under § 504 of the Rehabilitation Act,
which “prohibits discrimination against the disabled by
recipients of federal funding, including private organizations.”
Barnes, 536 U.S. at 184, 189.
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Complaint.

In sum, the Court DISMISSES with prejudice

Plaintiff’s IIED claim both because it violates the two-year
statute of limitations for IIED claims in Hawaii, and because it
is barred by the exclusivity provision of Hawaii’s workers’
compensation law.

Additionally, the Court HOLDS that Plaintiff

cannot rely on events occurring prior to April 2, 2009 for
purposes of her ADAAA claims, and that she cannot rely on events
occurring prior to July 31, 2009 for purposes of her claims
brought under Hawaii Revised Statute § 378-2.

Finally, the

Court HOLDS that Plaintiff may not seek either punitive or
compensatory damages for her federal retaliation claim, but that
she may seek punitive damages for her federal discrimination
claim.
IT IS SO ORDERED.
DATED:

Honolulu, Hawai’i, August 23, 2016.

________________________________
Alan C. Kay
Sr. United States District Judge

Kuehu v. United Airlines, Inc., Civ. No. 16-00216 ACK-KJM, Order Granting in
Part and Denying in Part Defendant’s Motion for Partial Dismissal of
Complaint.

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