Kuehu v. United Airlines, Inc.

Filing 85

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT re 44 Motion for Summary Judgment. Signed by JUDGE ALAN C. KAY on 05/26/2017. (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
___________________________________
)
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 DEFENDANT’S MOTION FOR SUMMARY JUDGMENT
For the reasons set forth below, the Court GRANTS
Defendant’s Motion for Summary Judgment, ECF No. 44 (“Motion”).
PROCEDURAL BACKGROUND
On January 25, 2010, Plaintiff Donna Kuehu
(“Plaintiff”) filed a Charge of Discrimination with the Equal
Employment Opportunity Commission (“EEOC”) and the Hawaii Civil
Rights Commission (“HCRC”) alleging discrimination based on her
disability and retaliation by Defendant United Airlines
(“Defendant”).

Declaration of Eileen Zorc (“Zorc Decl.”), Ex.

J, ECF No. 45-15.

The EEOC issued a right-to-sue letter on

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September 23, 2015, and the HCRC issued the same on December 17,
2015.

Compl. ¶¶ 105-06, ECF No. 1-2.
On December 22, 2015, Plaintiff filed a complaint

against Defendant in state court.

See Compl.

Plaintiff alleged

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

Compl., ¶¶ 107-22, 162-64.

Defendant removed the

case to federal court on the basis of diversity jurisdiction on
May 4, 2016.

Notice of Removal, ECF No. 1.

On August 23, 2016, the Court granted in part and
denied in part Defendant’s Motion for Partial Dismissal.
No. 27.

ECF

First, the Court held based on the applicable statutes

of limitations that Plaintiff could only base federal claims
under the Americans with Disability Act Amendments Act (“ADA”)
on events on or after April 2, 2009 and state claims under
Hawaii Revised Statute (“HRS”) § 378-2 on events on or after
July 31, 2009.

Id. at 10-11.

Plaintiff’s IIED claim.

Second, the Court dismissed

Id. at 19-22.

Finally, the Court held

that Plaintiff could not seek punitive or compensatory damages
on her federal retaliation claim, but could seek punitive
damages on her federal discrimination claim.

Id. at 23.

Defendant filed the instant Motion on March 1, 2017
seeking summary judgment on all remaining claims.

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Plaintiff

filed her Opposition on May 1, 2017.

ECF No. 65 (“Opp.”).

Defendant filed its Reply on May 8, 2017.

ECF No. 77 (“Reply”).

The Court held a hearing on Defendant’s Motion on May
22, 2017.
FACTUAL BACKGROUND
Until she was terminated on January 8, 2010, Plaintiff
was employed as a Reservations Sales Representative (“RSSR”) in
Defendant’s call center in Honolulu.

Defendant’s Concise

Statement of Facts ¶¶ 1, 24, ECF No. 45 (“Def. CSF”). 1

In 2000,

the call center was relocated to a building at the Honolulu
Airport (“Reservations Center”).

Id. ¶ 1.

On August 22, 2005,

Plaintiff claims she was “exposed to uncontrolled harmful
conditions,” which her doctor advised was hydrogen sulfide.
Declaration of Donna Kuehu ¶¶ 15, 20, ECF No. 55-3 (“Kuehu
Decl.”); 2 Ex. D, ECF No. 56-3 (Dr. Seberg’s conclusion of
hydrogen sulfide exposure).

Plaintiff also complained of an

odor at the Reservations Center on January 25, 2006, which
Plaintiff asserts was due to the “release of a noxious/toxic
substance.”

Kuehu Decl. ¶ 25; Def. CSF ¶ 2.

1

Plaintiff’s

Defendant’s CSF is undisputed apart from paragraphs 5, 8, 14,
19, 21, and 29, which are either partially or wholly disputed.
See Plaintiff’s Concise Statement of Facts, ECF No. 55.
2
Defendant objected to certain portions of Plaintiff’s
declaration and certain exhibits. ECF No. 78. As the Court
does not need to rely on the evidence objected to, it declines
to address Defendant’s objections.
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doctors diagnosed her with multiple chemical sensitivity,
fibromyalgia, and migraine and chronic fatigue syndrome, which
she asserts render her disabled under the ADA.

Kuehu Decl. ¶

48; Opp. at 23-24.
On January 26, 2006, Defendant placed Plaintiff on
Extended Illness Status (“EIS”) pursuant to Plaintiff’s union’s
Collective Bargaining Agreement (“CBA”).

Kuehu Decl. ¶ 28; Def.

CSF ¶ 3; Declaration of Denise Peterson ¶ 3, ECF No. 45-22
(“Peterson Decl.”).
up to three years.

EIS allows an employee to be on leave for
Peterson Decl. ¶ 3.

Termination after the

expiration of EIS is “automatic” unless Defendant exercises its
discretion to extend the EIS.

Zorc Decl., Ex. G, Declaration of

Carolyn A. Schoeneman ¶ 3, ECF No. 45-9.
Defendant informed Plaintiff by letters on August 19,
2009 and September 21, 2009 that her EIS would expire on October
23, 2009.

Def. CSF ¶ 16.

Shortly thereafter, Plaintiff’s

doctors, who had previously certified that she was unable to
work due to “toxic chemical exposure,” released her to work
effective October 21, 2009 on a 20-hour per week schedule in a
location which would not expose her to toxic fumes.
16.

Id. ¶¶ 13,

Defendant requested additional information regarding

Plaintiff’s medical status and limitations and extended her EIS
status to allow time to obtain the information.

Id. ¶ 18.

After that information was provided, Plaintiff met with
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Defendant’s representatives, including Denise Peterson, the
supervisor of the Reservations Center, on November 16, 2006.
Peterson Decl. ¶ 1; see Kuehu Decl. ¶¶ 66, 73.

The parties did

not agree on an accommodation which would enable Plaintiff to
return from leave and resume working as an RSSR in Hawaii.

See

Def. CSF ¶¶ 19-21; Kuehu Decl. ¶¶ 73-77.
Plaintiff then applied for Customer Service
Representative (“CSR”) positions in several locations.
¶ 22.

Def. CSF

Defendant used SourceRight Solutions Manager

(“SourceRight”), an independent, third-party contractor, to
conduct screenings and interviews for the CSR position.
23.

Id. ¶

Laura Butler of SourceRight interviewed Plaintiff for a CSR

position in Kona, Hawaii.

Id.

Defendant agreed to extend

Plaintiff’s EIS pending the results of her CSR interview.
id. ¶ 24.

See

However, Plaintiff’s interview score fell in the “Not

Recommended” category, and as such Ms. Butler determined
Plaintiff was not qualified and did not select her.

Id. ¶ 23.

SourceRight informed Plaintiff on January 7, 2010 of her nonselection, and Defendant then informed Plaintiff of her
termination, effective January 8, 2010.

Id. ¶ 24.

After termination, Plaintiff applied for various jobs,
and worked in a seasonal position for the U.S. Census Bureau
until the end of August 2010.

Kuehu Decl. ¶ 102.

receive responses regarding other job applications.

She did not

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Id.

Plaintiff has also been pursuing her education, including
bachelor’s degrees, a master’s degree, and currently a Ph.D.
Def. CSF ¶ 29. 3

Plaintiff has additionally participated in a

work-study program and worked part-time as a college tutor and
research assistant.

Kuehu Decl. ¶ 103.

During this time, Plaintiff also filed: (1) worker’s
compensation claims regarding both the August 22, 2005 and
January 25, 2006 incidents; and (2) whistleblower claims against
Defendant with the Department of Labor alleging violations of
employee protection provisions in four environmental statutes.
Def. CSF ¶¶ 4, 25; Memorandum of the Intermediate Court of
Appeals at 3, Zorc Decl., Ex. D, ECF No. 45-5 (“ICA Mem. Op.”);
ALJ Decision & Order Denying Claims, Zorc. Decl., Ex. H, ECF No.
45-13 (“ALJ Decision”).
Plaintiff’s worker’s compensation claims were
consolidated and initially found compensable in 2007, but the
Hawaii Labor and Industrial Relations Appeals Board (“LIRAB”)
reversed the decision on appeal finding that she failed to
establish her claimed work injuries of multiple chemical
sensitivity, chronic pain syndrome, fibromyalgia, or candidiasis
existed.

Def. CSF ¶¶ 4, 11; LIRAB Decision & Order, Zorc Decl.,

Ex. C, ECF No. 45-4 (“LIRAB Decision”).
3

The LIRAB also held

Plaintiff only disputes this paragraph “to the extent it
implies [she] has not sought employment.” Plaintiff’s CSF ¶ 29.
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that Plaintiff suffered from an undifferentiated somatoform
disorder based on an “unsubstantiated and incorrect belief that
she was exposed to dangerous levels of toxic substances.”
CSF ¶ 11.

Def.

The Hawaii Intermediate Court of Appeals affirmed the

LIRAB’s decision, and the Hawaii Supreme Court denied a writ of
certiorari.

Def. CSF ¶ 12; see ICA Mem. Op.

Plaintiff’s environmental whistleblower claims, filed
in 2010, were denied on May 25, 2012.
Def. CSF ¶ 25.

ALJ Decision at 22-29;

The ALJ found inter alia that Plaintiff had not

demonstrated a causal connection between her protected activity
as an environmental whistleblower and her termination.
Decision at 22-29; Def. CSF ¶ 25.

ALJ

The ALJ’s decision was

affirmed by the Administrative Review Board (“ARB”) on February
10, 2014.

Final Decision & Order, Zorc. Decl, Ex. I, ECF No.

45-14 (“ARB Decision”); Def. CSF ¶ 27.
further appeal.

Plaintiff did not

Def. CSF ¶ 27.
STANDARD

Summary judgment is proper where there is no genuine
issue of material fact and the moving party is entitled to
judgment as a matter of law.

Fed. R. Civ. P. 56(a).

Federal

Rule of Civil Procedure (“Rule”) 56(a) mandates summary judgment
“against a party who fails to make a showing sufficient to
establish the existence of an element essential to the party’s
case, and on which that party will bear the burden of proof at
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trial.”

Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see

also Broussard v. Univ. of Cal., at Berkeley, 192 F.3d 1252,
1258 (9th Cir. 1999).
“A party seeking summary judgment bears the initial
burden of informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.”

Soremekun v. Thrifty Payless, Inc., 509 F.3d

978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see
also Jespersen v. Harrah’s Operating Co., 392 F.3d 1076, 1079
(9th Cir. 2004).

“When the moving party has carried its burden

under Rule 56[(a)] its opponent must do more than simply show
that there is some metaphysical doubt as to the material facts
[and] come forward with specific facts showing that there is a
genuine issue for trial.”

Matsushita Elec. Indus. Co., Ltd. v.

Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (citation and
internal quotation marks omitted); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 247–48 (1986) (stating that a party
cannot “rest upon the mere allegations or denials of his
pleading” in opposing summary judgment).
“An issue is ‘genuine’ only if there is a sufficient
evidentiary basis on which a reasonable fact finder could find
for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
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In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248).

When considering the evidence on a

motion for summary judgment, the court must draw all reasonable
inferences on behalf of the nonmoving party.

Matsushita Elec.

Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille
Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating
that “the evidence of [the nonmovant] is to be believed, and all
justifiable inferences are to be drawn in his favor”).
DISCUSSION
I.

Disability Discrimination Claims
To establish a prima facie case of disability

discrimination, Plaintiff must demonstrate that “(1) she is a
disabled person within the meaning of the ADA; (2) she is a
qualified individual, meaning she can perform the essential
functions of her job; and (3) [Defendant] terminated her because
of her disability.”). 4

Nunes v. Wal-Mart Stores, Inc., 164 F.3d

4

The Hawaii Supreme Court has expressly adopted the ADA analysis
for purposes of a prima facie case of disability discrimination
under HRS § 378-2. French v. Haw. Pizza Hut, Inc., 105 Haw.
462, 467, 99 P.3d 1046, 1051 (2004) (because of the textual
similarity, the Hawaii Supreme Court “adopt[ed] the analysis for
establishing a prima facie case of disability discrimination
under HRS § 378-2 that was established [under federal law].”).
In addition, it has advised that Hawaii courts “may look to the
interpretations of analogous federal laws by the federal courts
for guidance” in construing claims under § 378-2. Id. (internal
quotation and citation omitted). As the parties have not
pointed to any relevant difference under Hawaii law, nor has the
(Continued...)
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1243, 1246 (9th Cir. 1999).

Under the ADA and HRS § 378-2, a

disability is “a physical or mental impairment that
substantially limits one or more major life activities of such
individual.”

42 U.S.C. § 12102(1)(A); HAR § 12-46-182 (same

definition).

A physical impairment includes “[a]ny

physiological disorder or condition...affecting one or more body
systems,” and a mental impairment is “[a]ny mental or
psychological disorder,” such as an emotional or mental illness.
29 C.F.R. § 1630.2(h).
A. Whether Plaintiff is Precluded From Establishing Her
Claimed Impairments
Defendant asserts that Plaintiff is precluded from
establishing that she is disabled by virtue of the LIRAB
Decision affirmed by the ICA.

Motion at 16-20.

Under 28 U.S.C.

§ 1738, “a federal court ‘must give to a state-court judgment
the same preclusive effect as would be given that judgment under
the law of the State in which the judgment was entered.’”

White

v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (citing
Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 81
(1984)).

“The same rule applies to administrative proceedings

that have been upheld by state courts.”

Id.

In Hawaii,

the test for collateral estoppel has four
elements: (1) the fact or issue in the
Court noted any, the Court will focus on federal caselaw for
Plaintiff’s disability discrimination claims.
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present action is identical to the one
decided in the prior adjudication; (2) there
was a final judgment on the merits in the
prior adjudication; (3) the parties present
in the action are the same or in privity
with the parties in the prior action; and
(4) the fact or issue decided in the prior
action was actually litigated, finally
decided, and essential to the earlier valid
and final judgment.
Dannenberg v. Hawaii, 139 Haw. 39, 60, 383 P.3d 1177, 1198
(2016); see also Sheehan v. Cty. of Kaui, Civ. No. 12-00195 HGBMK, 2013 WL 1342364, at *11 (D. Haw. Mar. 29, 2013) (citing
same elements for purposes of full faith and credit and
collateral estoppel under Hawaii law).
Neither the second nor third element of the collateral
estoppel test is at issue.

There is no question that both

Plaintiff and Defendant here were parties in the worker’s
compensation litigation and that the ICA opinion is a final
decision on the merits.
identity of issues.

The dispute lies in whether there is an

Plaintiff argues that her worker’s

compensation case addressed whether her injuries arose from the
workplace, and disability under the ADA is not limited to the
workplace.

Opp. at 24-25.

Defendant focuses on the factual

findings underlying the LIRAB’s ultimate determination.
Reply at 2-7.

See

After studying the parties’ briefs, the Court

finds that the crux of the dispute is whether the LIRAB’s

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factual determination of what Plaintiff’s condition is
collaterally estops her from proving her claimed impairment.
In order to conclude, as it did, that Plaintiff did
not sustain a personal injury on January 25, 2006 arising out of
and in the course of employment, LIRAB Decision at 25, 28, the
LIRAB necessarily had to decide what injury, if any, Plaintiff
suffered.

See Royal State Nat’l Ins. Co. v. Labor & Indus.

Relations Appeal Bd., 53 Haw. 32, 36, 487 P.2d 278, 281 (1971)
(reversing directed verdict because jury could find claimant did
not suffer claimed neck injuries); Masang v. Target Corp., 136
Haw. 190, 358 P.3d 759, at *6 (Ct. App. 2015) (unpublished
disposition) (finding LIRAB erred in refusing testimony
regarding whether claimant actually sustained claimed neck
injury).

The LIRAB resolved conflicting evidence from various

doctors and medical experts and determined that Plaintiff’s
“condition is an undifferentiated somatoform disorder, not
multiple chemical sensitivity, chronic pain syndrome,
fibromyalgia, or candidiasis.”

LIRAB Decision at 25, 28.

Here, Plaintiff seeks to assert that her impairments
are “Multiple Chemical Sensitivity, Fibromyalgia, Migraine and
Chronic Fatigue Syndrome,” which impairments have resulted in a
host of symptoms that limit a wide range of activities.

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Opp. at

23-24; Kuehu Decl. ¶ 19. 5

Plaintiff appears to rely on the same

medical opinions as she did before the LIRAB.

And while

Plaintiff claims to experience symptoms in places other than
work, such as the grocery store or school, Kuehu Decl. ¶ 19, the
issue of what the underlying impairment causing these symptoms
is has already been litigated and finally determined by the
LIRAB.

As such, Plaintiff is collaterally estopped from proving

her claimed impairments exist, and thus her ADA claim premised
on these impairments is fatally flawed.
The Court also notes that while it appears that an
individual may be disabled under the ADA even if she had a
preexisting condition or if exposure causing the illness was
outside of work, Plaintiff has provided no evidence supporting

5

“These symptoms [dizziness, forgetfulness, poor vision,
difficulty concentrating, ringing in ears, loss of hearing,
confusion, scratchy throat, sneezing, heaviness in legs, racing
heart, very stiff and achy, brain felt swollen, deteriorating
immune system and strength] partially or totally inhibited me
from thinking (can’t focus and fogging or swollen feeling
brain), focusing, eating (nausea), walking (weakness in legs),
working (can’t focus and in aching pain all over my joints),
lifting (weakness), bending (aching and weakness), communicating
(lack of focus or ability to think clearly), talking (lack of
focus or ability to think clearly), caring for myself (weakness
and lack of energy), reading (lack of concentration and focus),
learning (lack of concentration and focus) and breathing (hard
to breath [sic] feel like I can’t inhale)” when the symptoms
were present, which Plaintiff claims were present on essentially
a daily basis during the years 2005 to the present day....”
Kuehu Decl. ¶ 19
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those circumstances here. 6

Indeed, in her HCRC Charge of

Discrimination, Plaintiff specifically asserted that “[i]n
January 2006, I developed a disability while working.”
Decl., Ex. J, ECF No. 45-15.

Zorc

Further, Plaintiff’s evidence

supporting the existence of her impairment and resulting
symptoms appears to be the same as before the LIRAB.

And

Plaintiff points out in her own Opposition that her doctors
determined the Reservations Center location “to be the cause of
her medical condition.”

Opp. at 6.

These assertions belie

Plaintiff’s implication that her conditions arose from something
other than her employment.

No reasonable jury looking at this

record could conclude otherwise, and thus the particular factual
issue is the same as the one the LIRAB addressed.
Accordingly, the Court concludes that Plaintiff is
collaterally estopped from establishing under the ADA and Hawaii
law that she is disabled by virtue of her claimed impairments of
Multiple Chemical Sensitivity, Fibromyalgia, Migraine and
Chronic Fatigue Syndrome.

6

Even if Plaintiff had evidence to support this claim, she would
be collaterally estopped from showing that her work environment
exacerbated her condition, as the ICA noted in its opinion that
she did not challenge the LIRAB’s factual findings that she was
not exposed to a medically significant amount of gas or exposed
for a significant period of time. ICA Mem. Op. at 6.
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B. Whether Plaintiff Can Demonstrate that She Was
Substantially Limited in A Major Life Activity
Defendant argues in the alternative, that even if
Plaintiff is not collaterally estopped from litigating the issue
of her impairment, she is unable to establish that she was
substantially limited in a major life activity, as required by
the first element of her prima facie case.

Motion at 20-22.

The Ninth Circuit has recognized that the term
“substantially limited” should be “‘interpreted consistently
with the findings and purposes of the ADA Amendments Act of
2008’” and that “[d]etermining whether an impairment is
substantially limiting ‘requires an individualized assessment.’”
Weaver v. City of Hillsboro, 763 F.3d 1106, 1111-12 (9th Cir.
2014) (quoting 42 U.S.C. § 12102(4)(A)-(B) and 29 C.F.R. §
1630.2(j)(1)(iv)).

“An impairment is a disability...if it

substantially limits the ability of an individual to perform a
major life activity as compared to most people in the general
population.”

29 C.F.R. § 1630.2(j)(1)(ii); see also id. §

1630.2(j)(4) (relevant factors for comparison include
conditions, manner, and duration of time for performance of
activity). 7

However, the mere existence of an impairment that

7

HAR § 12-46-182 similarly provides that a substantial
limitation “means limited in the ability to perform a major life
activity as compared to most people in the general population”
(Continued...)
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causes difficulty performing a major life activity does not
necessarily rise to the level of a substantial impairment.

See

Kim v. Potter, 460 F. Supp. 2d 1194, 1200 (D. Haw. 2006) (knee
impairment causing a limp was not a substantial impairment).
Plaintiff asserts that her symptoms have “partially or
totally inhibited” her from engaging in numerous major life
activities on a nearly daily basis over the last decade.
supra at 12 n.4; Opp. at 26-27; Kuehu Decl. ¶ 19.

See

However,

aside from her apparent total inability to be at the
Reservations Center, Plaintiff has not established a genuine
dispute as to whether her symptoms are substantially limiting.
Although when Plaintiff’s symptoms are at their worst, she
asserts she is “essentially useless,” Kuehu Decl. ¶ 19, she does
not indicate how often her symptoms limit her to this extent.
It is also not clear from Plaintiff’s declaration which
activities she was only partially inhibited from performing and
which she was totally inhibited from performing, or how severe
her partial limitations are.

Such a conclusory declaration is

insufficient to create a genuine dispute of fact.

See Rohr v.

Salt River Project Agric. Improvement and Power Dist., 555 F.3d
850, 858 (9th Cir. 2009) (While “[a] plaintiff’s testimony may
suffice to establish a genuine issue of material fact,” in order
and allows courts to consider the condition, manner, and
duration of performance of the major life activity.
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to survive summary judgment “an affidavit supporting the
existence of a disability must not be merely self-serving and
must contain sufficient detail to convey the existence of an
impairment.”) (internal quotation marks and citation omitted).
Moreover, the record renders certain assertions in
Plaintiff’s declaration implausible on their face.

For example,

Plaintiff’s academic pursuits and generally successful academic
record suggest that she is not substantially inhibited in her
ability to communicate, read, or learn.

See Wong v. Regents of

Univ. of Cal., 410 F.3d 1052, 1065-66 (9th Cir. 2005) (granting
summary judgment where record of academic success rendered
claimed limited ability to learn implausible).

Plaintiff also

admits that she “wanted and was physically ready to return to
work in October 2009” and was unable to do so as the conditions
at the Reservations Center remained unchanged, Opp. at 27-28,
which further calls into question that Plaintiff was
substantially limited other than in her employment.

Under such

circumstances, the Ninth Circuit requires plaintiffs to “come
forward with more persuasive evidence than otherwise would be
necessary to show that there is a genuine issue for trial,”
which Plaintiff has not done here.

See Wong, 410 F.3d at 1066.

In addition, no reasonable jury could find on this
record that Plaintiff was substantially limited in her ability
to work, as compared to the general population.
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Plaintiff

claims to be able to work in any place with a “safe, non-toxic
environment where there were not chemical exposures.”
27 (emphasis omitted).

Opp. at

As the ALJ concluded that Plaintiff was

exposed to hydrogen sulfide at the Reservations Center on
January 25, 2006, LIRAB Decision at 25, Plaintiff’s asserted
limitation would preclude her from working there. 8

However,

Plaintiff has offered no other evidence to support that her
limitations would prevent her from working at any other job.
The interpretive guidance for the ADA states that “a
substantial limitation in performing the unique aspects of a
single specific job is not sufficient to establish that a person
is substantially limited in the major life activity of working.”
See 29 C.F.R. § Pt. 1630, App.

And in Nimi-Montalbo v. White,

the court concluded that the plaintiff was not substantially
limited from working where the medical evidence only limited her
ability to perform jobs “within the workplace environment to
which she is currently assigned and under the specific
administration and supervision of this workplace setting.”
F. Supp. 2d 1109, 1123 (D. Haw. 2003).
8

243

In so holding, the court

The Court recognizes that Plaintiff is collaterally estopped
from challenging the LIRAB’s finding that she was not exposed to
medically significant amounts of hydrogen sulfide and was not
exposed to such gas for an extended period of time on January
25, 2006. See ICA Mem. Op. at 6. However, taking Plaintiff’s
limitation that she is unable to work at a place with any
chemical exposures as true, Plaintiff is unable to work at the
Reservations Center location.
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noted that the analysis should focus “on the nature and
requirements of jobs at issue, not on the particular people with
whom the claimant works or the ‘environment’ of the particular
workplace.”

Id.

Based on Plaintiff’s stated limitations and the record
before the Court, no reasonable jury could find that Plaintiff
has been substantially limited in working compared to “most
people in the general population.”

See Weaving, 763 F.3d at

1112 (affirming summary judgment where record of job competence
without accommodation showed that plaintiff’s ADHD did not limit
his ability to work compared to most people in the general
population) (citing 29 C.F.R. § 1630.2(j)(1)(ii)).
C. Whether Plaintiff Can Demonstrate that She Was a
“Qualified” Individual
Defendant also argues in the alternative that
Plaintiff cannot establish that she is a qualified individual.
Motion at 22-31.

Given its findings above, the Court does not

need to reach this issue.

Nevertheless, to establish that she

is a qualified individual, Plaintiff must provide evidence
showing that she “can perform the essential functions of the
employment position” with or without reasonable accommodation.
42 U.S.C. § 12111(8); Nunes, 164 F.3d at 1247; see also HAR §
12-46-182 (to be qualified, an individual must satisfy the job’s
qualification standards and be able to perform the essential

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functions of the position with or without reasonable
accommodation).
1. Whether Physical Presence at the Reservations Center
Is an Essential Function
The Ninth Circuit has recognized, along with a
majority of circuits, that “where performance requires
attendance at the job, irregular attendance compromises
essential job functions.”

Samper v. Providence St. Vincent Med.

Ctr., 675 F.3d 1233, 1237 (9th Cir. 2012).

Some jobs, for

instance, “require the employee to work with items and equipment
that are on site.”

Id. (noting Corder v. Lucent Techs., Inc.,

162 F.3d 924 (7th Cir. 1998), which involved telephone customer
support, as an example).
Plaintiff claims that her essential job functions were
“to talk to customers regarding flight reservations and input
the customer’s flight reservations into the computer.”
Decl. ¶ 3; Opp at 28.

Kuehu

However, she has not specifically

contested that “[United] did not have the capabilities or
technology [in 2009] for employees to work remotely” as its
“technology and systems did not provide for rerouting calls or
accessing the reservations software remotely.”
12.

Peterson Decl. ¶

As such, there is no genuine dispute that the RSSR position

required Plaintiff to be at the Reservations Center.

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2. Whether Plaintiff Could Perform the Essential
Functions of the RSSR Position With Or Without a
Reasonable Accommodation
The Court next turns to whether Plaintiff can perform
the essential functions of the job with or without a reasonable
accommodation.

42 U.S.C. § 12111(8).

Neither party contends

that Plaintiff was able to perform this job without a reasonable
accommodation, so the Court will only address whether she could
do so with a reasonable accommodation.

Plaintiff bears the

burden of showing the existence of a reasonable accommodation.
Dark v. Curry Cty., 451 F.3d 1078, 1088 (9th Cir. 2006).

“To

avoid summary judgment, [Plaintiff] ‘need only show that an
accommodation’ seems reasonable on its face, i.e., ordinarily or
in the run of cases.’”

Id. (quoting U.S. Airways, Inc. v.

Barnett, 535 U.S. 391, 401-02 (2002)) (emphasis added in Dark).
Reasonable accommodations require “[m]odifications or
adjustments to the work environment, or to the manner or
circumstances under which the position held or desired is
customarily performed, that enable an individual with a
disability who is qualified to perform the essential functions
of that position.”

29 C.F.R. § 1630.2(o)(1)(ii).

The ADA

specifies that accommodations may include part-time or modified
work schedules and reassignment to a vacant position, 42 U.S.C.
§ 12111(9)(B).

- 21 -

a. Whether Defendant Failed to Engage in the
Interactive Process
In order to identify a reasonable accommodation,
Defendant had “an affirmative obligation to engage in an
interactive process in order to identify, if possible, a
reasonable accommodation that would permit [Plaintiff] to retain
[her] employment.”

Dark, 451 F.3d at 1088.

“The interactive

process requires communication and good-faith exploration of
possible accommodations between employers and individual
employees, and neither side can delay or obstruct the process.”
Humphrey v. Memorial Hosps. Ass’n, 239 F.3d 1128, 1137 (9th Cir.
2001).

The Ninth Circuit has indicated that such engagement

must be undertaken in good faith.

Morton v. United Parcel

Serv., Inc., 272 F.3d 1249, 1256 (9th Cir. 2001) (“Barnett holds
that ‘employers, who fail to engage in the interactive process
in good faith, face liability for the remedies imposed by the
statute if a reasonable accommodation would have been
possible.”) (overruled in part on other issues).

“Good faith

participation in the process is a continuing obligation that may
not be exhausted by one effort.”

Schwartz v. City & Cty. of

Honolulu, Civ. No. 14-00527 HG-KJM, 2017 WL 701357, at *12 (D.
Haw. Feb. 22, 2017) (citing Humphrey, 239 F.3d at 1138).
Plaintiff argues that because Defendant failed to
engage in the interactive process in good faith, summary

- 22 -

judgment is improper.

Opp. at 29-30.

While the Court finds

that Plaintiff has established a genuine dispute of fact as to
Defendant’s good faith, it nevertheless concludes that summary
judgment may still be granted on this alternate ground, in
addition to the other grounds discussed in this Order.
The critical factual issue that Plaintiff has raised
is Defendant’s failure to explain why it could not provide her
requested accommodation or to discuss alternate possibilities or
what Defendant’s ability to accommodate Plaintiff was.
31.

Id. at

Plaintiff also points to the fact that the assessment of

functional limitations provided by Defendant’s own doctor was
more limited than the accommodation it offered to Plaintiff, and
the record does not show that Defendant explained this
discrepancy. 9

Opp. at 30; Kuehu Decl., Ex. MM, ECF No. 62-1.

Failure to provide a meaningful dialogue or explanation can
demonstrate lack of good faith in the interactive process.

See

Livingston v. Fred Meyer Stores, Inc., 388 F. App'x 738, 741

9

Although Defendant explained at the hearing that its doctor did
not examine Plaintiff and thus had to evaluate Plaintiff’s
limitations from the evidence her doctor provided, this does not
resolve Defendant’s failure to explain why its accommodation was
not within those limits. However, the fact that the
accommodation offered differed from doctors’ recommendations is
not, by itself, evidence of bad faith because “[a]n employer is
not obligated to provide an employee the accommodation he
requests or prefers.” Zivkovic v. S. Cal. Edison Co., 302 F.3d
1080, 1089 (9th Cir. 2002) (internal citation and quotation
omitted).
- 23 -

(9th Cir. 2010) (finding triable issue of fact where employer
denied plaintiff’s requested accommodation “without providing a
meaningful dialogue or explanation of its decision”).
Plaintiff has stated that she asked about an 18-hour
work schedule, which she understood was available, or the option
of working in another location or from home.

Kuehu Decl. ¶ 74.

Plaintiff claims that Ms. Peterson did not explain why those
accommodations could not be implemented, and did not offer other
alternatives or offer to assist Plaintiff in applying for the
CSR position.

Id.

Although the evidence Plaintiff offers is

thin, in an abundance of caution the Court will find a genuine
dispute of fact as Plaintiff’s version conflicts with the
summary of the meeting Ms. Peterson provided by letter.

In that

letter, Ms. Peterson stated that they discussed that there were
no other locations in Hawaii where the RSSR position was being
performed, that Plaintiff could transfer outside of Hawaii if
there were open RSSR positions, and that the RSSR position is
only performed in 6-hour shifts.
29.

Zorc Decl., Ex. W, ECF No. 45-

Under Plaintiff’s view of the facts, a reasonable jury

could find that Defendant failed to engage in the interactive
process in good faith.
However, no reasonable jury could come to the same
conclusion as to Plaintiff’s other contentions based on the
record.

Although Plaintiff asserts in her Opposition that Ms.
- 24 -

Peterson “ignored” Plaintiff’s requests for a reasonable
accommodation meeting for six weeks, Opp. at 30, the undisputed
facts show that Ms. Peterson spoke with or emailed Plaintiff on
multiple occasions regarding the information Defendant needed in
order to conduct the meeting and where and when the meeting
would be held.

Kuehu Decl., Ex. II, ECF No. 61-5 (email chain

between Plaintiff and Ms. Peterson regarding reasonable
accommodation process); see Rider v. Lincoln Cty. Sch. Dist.,
No. 6:13-CV-02299-AA, 2015 WL 853071, at *8 (D. Or. Feb. 24,
2015) (multiple requests for more detailed explanation of
limitations constituted good faith effort to seek reasonable
accommodation).
Plaintiff also asserts Ms. Peterson refused to call
the meeting a reasonable accommodation meeting.

However, Ms.

Peterson stated in the summary letter that the purpose of the
meeting was “to discuss a possible accommodation.
Ex. W, ECF No. 45-29; Kuehu Decl. ¶ 75.

Zorc Decl.,

The substance of the

meeting also shows that the subject of the meeting was a
reasonable accommodation.

See Zorc Decl., Ex. V, ECF No. 45-28.

Finally, Plaintiff contests that she was improperly placed on
EIS leave; however, as this placement occurred in 2006 – three
years before Plaintiff requested a reasonable accommodation – it
does not evidence lack of good faith.

In sum, apart from

Defendant’s disputed failure to discuss and explain its position
- 25 -

on potential accommodations, the record would not allow a
reasonable jury to find a lack of good faith based on
Plaintiff’s other contentions. 10
b. Whether a Reasonable Accommodation Was Possible
The foregoing findings do not end the Court’s
analysis.

Where the defendant does not properly engage in the

interactive process, summary judgment is still available “if a
reasonable finder of fact must conclude that there would in any
event have been no reasonable accommodation available.”

Dark,

451 F.3d at 1088 (emphasis in original) (internal citation and
quotation omitted).
Plaintiff’s apparent position is that she is unable to
spend any time at the Reservations Center.

See Opp. at 27-28

(although Plaintiff was ready to return to work in 2009,
conditions at the Reservations Center had not changed and she
could not work there, based on doctor’s recommendation, see Ex.
JJ, ECF No. 61-6).

Plaintiff claims that her medical

restrictions do not allow her “to work or be at” that location.
10

Plaintiff also asserts that the termination documents she was
provided in January 2010, which indicated she was not eligible
for rehire, shows discriminatory animus. Opp. at 32; Kuehu
Decl., Ex. TT, ECF No. 63-3. Defendant has submitted evidence
showing that this notation was made in error and was corrected
in April 2010. Peterson Decl. ¶ 19; Ex. Z, ECF No. 45-32.
Regardless, because this notation was made months after the
reasonable accommodation process began, it is not relevant to
whether Defendant engaged in the interactive process in good
faith prior to her termination.
- 26 -

Kuehu Decl. ¶ 68; Zorc Decl., Ex. X at 3, ECF No. 45-30 (“A
return to the [Reservations Center], is not an option based on
my doctors restrictions.”).

As such, there does not appear to

be any accommodation Plaintiff could have been provided that
would have allowed her to fulfill her essential duties at the
Reservations Center. 11

Cf. Sharp v. Am. Tel. & Tel. Co., No. C

99-1065 TEH, 2000 WL 970665, at *6 (N.D. Cal. July 10, 2000)
(finding that defendant made a good faith effort where it
explained that any potential job would require some repetitive
handwork, which plaintiff was completely unable to perform).
Plaintiff also requested that she be allowed to work
remotely.

Opp. at 30.

However, Plaintiff’s unsupported

speculation that a remote setup was possible, Opp. at 31, does
not create a genuine dispute of fact with Defendant’s evidence
that a remote set up was not technologically possible. 12
Peterson Decl. ¶ 13 (describing how in 2009, Defendant’s

11

As such, the Court does not need to address Plaintiff’s
dispute as to whether Ms. Peterson only offered a paper mask or
whether she more broadly offered any other appropriate personal
protective device or mask. See Kuehu Decl. ¶ 77, Opp. at 17;
Zorc Decl. Ex. W, ECF No. 45-29.
12
Since this means that an accommodation was not possible in
Hawaii, the Court need not address the dispute as to whether
there were part-time work schedules of 20 hours or less
available in Hawaii. See Kuehu Decl. ¶ 74 (18-hour shifts
available); Peterson Decl. ¶ 13; Ex. W, ECF No. 45-29 (no 20hour per week positions available).
- 27 -

technology and systems did not allow for rerouting calls or
accessing reservation software remotely).
The Court next addresses whether a reassignment to
another position was possible.
no other open RSSR positions.

It is undisputed that there were
Def. CSF ¶ 20.

However,

Plaintiff applied to CSR positions, a position outside of her
classification as an RSSR, in various locations.

Id. ¶ 22.

In

order for reassignment to one of these positions to be a
possible accommodation, Plaintiff must have been qualified.
However, it is undisputed that Plaintiff’s performance on her
interview for the Kona CSR position did not result in a
qualifying score.

See id. ¶ 24.

Plaintiff seeks to undermine the interview report by
arguing that Ms. Peterson “poison[ed] the well” and that her
interviewer was distracted and inappropriately discussed her
previous recruiting process for the Reservations Center.
at 32; Kuehu Decl. ¶ 85.

Opp.

However, even if the report were

wholly undermined, Plaintiff’s conclusory assertion that she was
“qualified” for the CSR position, Kuehu Decl. ¶¶ 78, 88, is
insufficient.

Plaintiff offers no evidence supporting how she

met the standards set forth in the CSR interview report form for
the position, Zorc Decl., Ex. F-1, ECF No. 45-7, and has not
contested that Ms. Butler incorrectly recorded any of her
narrative responses or that those narrative responses, if
- 28 -

evaluated objectively, should have led to a higher rating.

As

such, no reasonable jury could conclude that Plaintiff was in
fact qualified and that transfer into the Kona CSR position was
a reasonable accommodation. 13

See Sevcik v. Unlimited Constr.

Servs., Inc., 462 F. Supp. 2d 1140, 1148 (D. Haw. 2006) (Kay,
J.) (although reassignment may be a reasonable accommodation,
the employer is not required to train an employee for a position
he is not qualified to perform).
Finally, Plaintiff has faulted Defendant for not
offering leave as an accommodation. 14

In considering whether a

leave of absence is a reasonable accommodation, “the question is
whether the leave of absence is likely to enable the employee,
upon his return from leave, to resume performing the essential
functions of the job.”

Shim v. United Air Lines, Inc., No. CIV.

13

Plaintiff’s argument that she should have been placed into a
CSR position in another location, such as Maui, Kuehu Decl. ¶
88, also fails because she has not demonstrated she is qualified
for that position either. Nor has Plaintiff challenged
Defendant’s policy that unsuccessful applicants must wait six
months before reapplying to the same position nor shown why she
should be exempt from this policy.
14
Plaintiff argues that the EIS leave does not qualify as a
reasonable accommodation as it was mandated under the CBA,
relying on EEOC v. ValleyLife, No. CV 15-00340-PHX-GMS, 2017
U.S. Dist. LEXIS 7558 (D. Ariz. Jan. 19, 2017). Opp. at 21.
This case is not relevant, as it addresses whether the employer
had a duty to engage in the interactive process and whether the
employees were qualified. In any event, the issue before the
Court is whether Defendant’s exercise of its discretion to twice
extend Plaintiff’s EIS leave constitutes a reasonable
accommodation.

- 29 -

11-00162 JMS, 2012 WL 6742529, at *8–9 (D. Haw. Dec. 13, 2012)
(internal citation and quotation omitted).

Defendant is not

required to extend an indefinite leave to Plaintiff.

See Larson

v. United Natural Foods W. Inc., 518 F. App’x 589, 591 (9th Cir.
2013) (“[A]n indefinite, but at least six-month long, leave of
absence...is not a reasonable accommodation.”).
Here, Plaintiff has not provided any evidence to
suggest that a leave of any length would have allowed her to
return to work at the Reservations Center.

When Plaintiff was

assessed with “long-term limitations” of 90 days or more, she
had already been on EIS leave for almost three years; her EIS
leave was then further extended twice with no sign of
improvement.

Kuehu Decl. ¶ 66; Ex. MM, ECF No. 62-1 (Assessment

of Functional Capabilities); Ex. RR, ECF No. 63-1 (“[B]ecause we
needed to clarify some medical information and then you put in
for the KOACS position so soon after your RAP session, we have
extended [your EIS] pending the results of your interview.”).
See Trujillo v. U.S. Postal Serv., 330 F. App’x 137, 139 (9th
Cir. 2009) (granting summary judgment where previously granted
leave had failed to improve underlying impairment).
For all the foregoing reasons, the Court concludes
that no reasonable jury could find that Plaintiff is able to
show that she is disabled or that a reasonable accommodation was

- 30 -

possible.

As such, the Court GRANTS Defendant’s Motion as to

Plaintiff’s federal and state disability discrimination claims.
II. Retaliation Claims
In order to establish a prima facie case of
retaliation under the ADA, Plaintiff must show that (1) she has
been engaged in protected activity; (2) that she suffered an
adverse action; and (3) that there is a causal link between the
two.

See T.B. v. San Diego Unified Sch. Dist., 806 F.3d 451,

473 (9th Cir. 2015) (noting that the Ninth Circuit uses the
Title VII burden-shifting framework under McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973) in ADA retaliation claims).
The standard for the causal link is but-for causation. 15

15

Id.

Hawaii has adopted the McDonnell-Douglas burden-shifting
analysis for retaliation claims under HRS § 378–2. See Schefke
v. Reliable Collection Agency, Ltd., 96 Haw. 408, 426, 32 P.3d
52, 70 (2001), as amended (Oct. 11, 2001). Plaintiff does not
contest that federal law shifted to a but-for test for causation
in the Supreme Court’s opinion in Univ. of Texas S.W. Med. Ctr.
v. Nassar, 133 S. Ct. 2517, 2528 (2013), but argues that Hawaii
still employs a mixed motive test for causation under Schefke.
Opp. at 32. The Court has been unable to locate any Hawaii
authority post-dating Nassar on this issue, but the Hawaii
Supreme Court has indicated its intention to be consistent with
federal law. See Schefke, 96 Haw. at 426. In addition, in
post-Nassar decisions, district courts have used the but-for
test for both federal and state retaliation claims. See, e.g.,
Machorek v. Marriott Ownership Resorts, Inc., No. CV 15-00230
JMS-KSC, 2016 WL 6963029, at *4-6 & n.3 (D. Haw. Nov. 28, 2016);
see also Hodges v. CGI Fed. Def. & Intelligence, No. CIV. 1200420 LEK, 2014 WL 5528228, at *10–11 (D. Haw. Oct. 31, 2014);
Freitas v. Kyo-Ya Hotels & Resorts, LP, No. CIV. 12-00358 SOM,
(Continued...)
- 31 -

(applying in the ADA context the but-for standard from the
Supreme Court’s opinion in Univ. of Texas S.W. Med. Ctr. v.
Nassar, 133 S. Ct. 2517, 2528 (2013) in the Title VII context).
The but-for standard “requires proof that the unlawful
retaliation would not have occurred in the absence of the
alleged wrongful action or actions of the employer.”

Nassar,

133 S. Ct. at 2533.
Defendant argues that Plaintiff is collaterally
estopped from establishing the causation element of her
retaliation claims because of the ALJ’s findings in Plaintiff’s
environmental whistleblower case that Plaintiff was terminated
because of the expiration of her EIS.
Decision at 23.

Motion at 33; ALJ

The Court has already set forth the principles

of collateral estoppel supra.

Here, there is no question that

both proceedings involve the same parties.

However, Plaintiff

appears to challenge both whether the ALJ decision is a proper
basis for collateral estoppel and whether the issues are
identical.

See Opp. at 33-34.
Plaintiff’s implication that an administrative

decision may not be entitled to preclusive effect is without
merit.

“When an administrative agency is acting in a judicial

2013 WL 6073455, at *7 (D. Haw. Nov. 18, 2013).
also use the but-for test for claims here.

- 32 -

This Court will

capacity and resolves disputed issues of fact properly before it
which the parties have had an adequate opportunity to litigate,
the courts have not hesitated to apply [preclusion] to enforce
repose.”

Astoria Fed. Sav. & Loan Ass’n v. Solimno, 501 U.S.

104, 107 (1991); see also State v. Higa, 79 Haw. 1, 8, 897 P.2d
928, 935 (1995) (noting the same for preclusive effect of agency
action under Hawaii collateral estoppel).

There is no

suggestion that the ALJ and ARB were not acting in a judicial
capacity or that the parties did not have an adequate
opportunity to litigate the issues before either decisionmaker.
Plaintiff did not appeal, despite the availability of judicial
review.

See Def. CSF ¶ 27.

As such, the ARB decision is a

final judgment which may form the basis of collateral estoppel.
See Wehrli v. Cty. of Orange, 175 F.3d 692, 694 (9th Cir. 1999)
(noting that “the availability of judicial review is a crucial
factor in determining preclusive effect” and noting that the
Ninth Circuit “accord[s] preclusive effect where judicial review
of the administrative adjudication was available but unused”).
The issue before the ALJ was whether Plaintiff’s
November 3, 2010 letter to the EPA regarding alleged
environmental violations was a motivating factor in Defendant’s
decision to terminate her.

ALJ Decision at 22.

The issue in

the instant case is whether Defendant terminated Plaintiff
because of her request for reasonable accommodation under the
- 33 -

ADA and opposition to disability discrimination.
33; Compl. ¶¶ 111, 118.
identical.

See Opp. at

On their faces, the two issues are not

Moreover, the ALJ’s ultimate conclusion which was

affirmed by the ARB that the Plaintiff failed to establish a
causal connection between her protected activity in that case
and her termination, ALJ Decision at 23, does not resolve
whether there is a causal connection between her ADA activity in
the instant case and her termination.
Nevertheless, Plaintiff’s attempt to create a dispute
of fact as to causation based on the timing of her request and
termination, Opp. at 33, is insufficient.

“[I]n some cases,

causation can be inferred from timing alone where an adverse
employment action follows on the heels of protected activity” if
it occurs “fairly soon after the employee’s protected
expression.”

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1065 (9th Cir. 2000).

However, the Ninth Circuit has

recently recognized that three months is too remote to infer
causation.

See Serlin v. Alexander Dawson Sch. LLC, 656 F.

App’x 853, 855-56 (9th Cir. 2016) (affirming summary judgment on
causation where the plaintiff relied solely on a three month gap
and did not provide other evidence that protected activity was a
factor in adverse employment decision); see also Arakaki v.
Brennan, No. CV 15-00229 HG-RLP, 2017 WL 1240188, at *9–10 (D.
Haw. Mar. 31, 2017) (granting summary judgment on causation
- 34 -

where 30 days after his complaint, employee was assigned to work
a holiday, despite objection, and the supervisor had previously
worked holidays when employees were unavailable).
As in Serlin and Arakaki, there is no evidence beyond
mere timing to support that Defendant terminated Plaintiff in
retaliation for requesting reasonable accommodation.

Plaintiff

admits that Ms. Peterson notified her on September 21, 2009 that
her EIS would expire on October 23, 2009 and that termination
would be automatic.

Kuehu Decl. ¶ 57.

The Court finds that

under these circumstances, the record does not contain a dispute
of material fact, and no reasonable jury could find that
Plaintiff established a prima facie case that she would not have
been terminated but-for her protected activity.

See also Clark

Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001)
(“Employers need not suspend previously planned transfers upon
discovering that a Title VII suit has been filed, and their
proceeding along lines previously contemplated, though not yet
definitively determined, is no evidence whatever of
causality.”).
Even if Plaintiff was able to set forth a prima facie
case of but-for causation, she has not challenged that Defendant
has met its burden to provide a legitimate non-discriminatory
explanation, according to the next step of the McDonnell-Douglas
burden-shifting framework.

See McDonnell Douglas, 411 U.S. at
- 35 -

804.

As in her environmental whistleblower case, termination of

Plaintiff’s EIS leave is a legitimate, non-discriminatory
explanation.

See ALJ Decision at 24-25.

It is undisputed that

Defendant twice informed Plaintiff that her EIS would expire on
October 23; that Defendant extended her EIS in order to obtain
further medical information regarding her ability to work; that
Defendant again extended her EIS pending the results of the Kona
CSR application; and that Defendant terminated Plaintiff after
she was not selected.

Def. CSF ¶¶ 16, 18, 20, 23-24.

Under the burden-shifting framework, Plaintiff must
then provide evidence showing Defendant’s stated reason is
pretextual.

See McDonnell Douglas, 411 U.S. at 804.

Although

Plaintiff does not appear to explicitly argue pretext, the Court
will construe Plaintiff’s arguments about animus as such.
Opp. at 33.

See

“A plaintiff can show pretext directly, by showing

that discrimination more likely motivated the employer, or
indirectly, by showing that the employer’s explanation is
unworthy of credence.”

Vasquez v. Cty. of Los Angeles, 349 F.3d

634, 941 (9th Cir. 2003).

Direct evidence is usually composed

of “clearly...discriminatory statements or actions by the
employer.”

Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094-95

(9th Cir. 2005).

Circumstantial evidence constitutes “evidence

that requires an additional inferential step to demonstrate
discrimination.”

Id. at 1095.

A plaintiff’s circumstantial

- 36 -

evidence must be both specific and substantial in order to
survive summary judgment.

Becerril v. Pima Cty. Assessor’s

Office, 587 F.3d 1162, 1163 (9th Cir. 2009).
The Court has already addressed supra Plaintiff’s
assertion that she was improperly placed on EIS in 2006.

See

also ALJ Decision at 27 (reasoning that Plaintiff’s extensive
arguments about improper placement on EIS did not show
retaliation).
The Court also finds that no reasonable jury could
agree with Plaintiff that Ms. Peterson “poison[ed] the well” by
volunteering to May Pereles at Sourceright that Plaintiff had
been on EIS for three years.

Kuehu Decl., Ex. SS, ECF No. 63-2.

This is because there is no evidence that this statement was
ever communicated to Plaintiff’s interviewer, Ms. Butler.

Ms.

Butler has also affirmatively stated that she was not made aware
of Plaintiff’s complaints either before or during the interview.
Zorc Decl., Ex. F, Butler Decl. ¶ 13, ECF No. 45-7.

Plaintiff

has attempted to infer that Ms. Butler must have known about
Plaintiff’s complaints, because she “was inappropriate in
discussing her previous recruiting process” for the Reservations
Center and “inappropriately wanted [Plaintiff] to add to her
discussion of the HNLRR building conditions.”

Kuehu Decl. ¶ 85.

However, Plaintiff’s vague conclusion that Ms. Butler acted
inappropriately is not sufficient to create a genuine dispute of
- 37 -

fact.

As might be expected in a job interview, Ms. Butler

explored Plaintiff’s prior work experiences.
Ex. F, ECF No. 45-7 (CSR Interview Guide).

See Zorc Decl.,
Without more

specific evidence of what Ms. Butler said, a reasonable jury
would not have a sufficient basis to conclude that the well was
poisoned and Ms. Butler knew about Plaintiff’s complaints.
Finally, Plaintiff argues that designating her as not
eligible for rehire in the January 2010 termination documents is
evidence of pretext.

See Opp. at 33.

However, the only

evidence Plaintiff relies on is the face of the document.

See

Opp. at 32; Kuehu Decl. ¶ 96; Ex. TT (termination documents).
Defendant does not dispute this document, but has offered
additional evidence showing that the designation was a mistake
that was later corrected.
45-32.

Peterson Decl. ¶ 19; Ex. Z, ECF No.

Plaintiff has offered no evidence contesting that

Defendant did not “honestly believe[]” this was a mistake.
Funai v. Brownlee, 369 F. Supp. 2d 1222, 1231 (D. Haw. 2004)
(Kay, J.); see also Hudson v. Shinseki, No. C11-00939 HRL, 2011
WL 3861689, at *7 (N.D. Cal. Aug. 31, 2011) (“Pretext is more
than a mistake on the part of the employer; pretext means a lie,
specifically a phony reason for some action.”) (internal
quotation and citation omitted).

A reasonable jury would thus

have no basis to find that the initial designation of
ineligibility for rehire shows pretext.
- 38 -

See Sanford v. Landmark

Prot., Inc., No. C 10-0447 RS, 2011 WL 1877904, at *8 (N.D. Cal.
May 17, 2011), aff'd, 495 F. App'x 783 (9th Cir. 2012) (granting
summary judgment where defendant asserted that the adverse
employment action resulted from an administrative mistake and
plaintiff made no showing of pretext).
As such, no reasonable jury could find that
Plaintiff’s protected ADA activity was the but-for cause of her
termination or that Defendant’s stated reasons for terminating
her were pretextual.

See Lombardi v. Castro, No. 15-55276, 2017

WL 104836, at *2 (9th Cir. Jan. 11, 2017) (granting summary
judgment where plaintiff had not shown but-for causation or that
stated reasons were pretextual, as evidenced by interview notes
demonstrating plaintiff interviewed poorly and lacked relevant
experience).

Accordingly, the Court GRANTS Defendant’s Motion

as to the retaliation claims.
CONCLUSION
For the foregoing reasons, the Court declines to
address Defendant’s evidentiary objections, ECF No. 78, GRANTS
Defendant’s Motion for Summary Judgment, ECF No. 44, and
DISMISSES Plaintiff’s remaining claims.

The Court DIRECTS the

Clerk to enter judgment in favor of Defendant.

- 39 -

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, May 26, 2017.

________________________________
Alan C. Kay
Sr. United States District Judge

Kuehu v. United Airlines, Inc., et al., Civ. No. 16-00216 ACK-KJM, Order
Granting Defendant’s Motion for Summary Judgment.

- 40 -