Creamer v. County of Kauai et al

Filing 48

ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S FIRST AMENDED COMPLAINT (ECF NO. 37 ) WITH LEAVE TO AMEND - Signed by JUDGE HELEN GILLMOR on 7/18/2018. If Plaintiff intends to file a Second Amen ded Complaint, Plaintiff is cautioned that it is necessary to remedy the deficiencies in his pleadings, as follows: 1): PLAINTIFF'S FEDERAL EMPLOYMENT DISCRIMINATION CLAIMS AGAINST THE INDIVIDUAL DEFENDANTS ARE DISMISSED WITH PREJUDICE The First Amended Complaint's claims against Defendants Asher and Brede are DISMISSED WITH PREJUDICE. The First Amended Complaint's claims against Defendants Perry, Contrades, Quibilan, Balbarino a nd Wakamoto are DISMISSED WITH PREJUDICE. Plaintiff is unable to assert federal employment discrimination claims against individual Defendants. Plaintiff is precluded from asserting such claims against the individual Defendants or any i ndividual member of the Kauai Police Department pursuant to Title VII of the Civil Rights Act, the Americans With Disabilities Act, or the Age Discrimination in Employment Act in the Second Amended Complaint. (2): PLAINTIFF'S C LAIMS AGAINST THE KAUAI POLICE DEPARTMENT ARE DISMISSED WITH PREJUDICE Plaintiff's claims against the Kauai Police Department are DISMISSED WITH PREJUDICE. The Kauai Police Department is not a proper Defendant and shal l not be named in the Second Amended Complaint. (3): PLAINTIFF'S CLAIMS AGAINST THE COUNTY OF KAUAI ARE DISMISSED The following causes of action against the County of Kauai are DISMISSED WITH LEAVE TO AMEND: FIRST CAUSE OF ACTION for Failure to Accommodate in Violation of the Americans With Disabilities Act SECOND CAUSE OF ACTION for Discrimination on the Basis of Age in Violation of the Age Discrimination in Employment Act THIRD CAUSE OF ACTION for Disparate Treatment on the Basis of Race and Color in Violation of Title VII of the Civil Rights Act of 1964 FOURTH CAUSE OF ACTION for Hostile Work Environment i n Violation of Title VII of the Civil Rights Act FIFTH CAUSE OF ACTION for Retaliation in Violation of Title VII of the Civil Rights Act, the Age Discrimination in Employment Act, and the Americans With Disabilities Act The foll owing causes of action against the County of Kauai are DISMISSED WITH PREJUDICE and may not be reasserted in the Second Amended Complaint: SIXTH CAUSE OF ACTION for Negligence REQUEST FOR PUNITIVE DA MAGES against the County of Kauai Plaintiff may file a Second Amended Complaint curing the deficiencies of his claims against the Defendant County of Kauai on or before Tuesday, September 4, 2018. Failure t o timely amend and cure the pleading deficiencies noted herein will result in dismissal of this action with prejudice for failure to state a claim. (emt, )COURT'S CERTIFICATE of Service - Danny Lee Creamer served by First Class Mail to the address of record listed on the Notice of Electronic Filing (NEF) on July 18, 2018. Participants 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
)
)
Plaintiff,
)
)
vs.
)
)
COUNTY OF KAUAI; KAUAI POLICE )
DEPARTMENT; CHIEF OF POLICE, )
DARRYL PERRY; DEPUTY CHIEF,
)
MICHAEL CONTRADES; ASSISTANT )
CHIEF, ALEJANDRE QUIBILAN;
)
SERGEANT, PATRICK BALBARINO; )
SERGEANT SANDY WAKAMOTO;
)
LIEUTENANT, SCOTT BREDE;
)
ASSISTANT CHIEF, ROY ASHER,
)
)
Defendants.
)
)
_________________________________
DANNY LEE CREAMER,

CIVIL NO. 16-00648 HG-KJM

ORDER GRANTING DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST
AMENDED COMPLAINT (ECF No. 37) WITH LEAVE TO AMEND
Pro se Plaintiff Danny Lee Creamer, a former police officer
with the Kauai Police Department, filed a First Amended Complaint
(ECF No. 31) following the Court’s dismissal of Plaintiff’s
original Complaint.
Plaintiff again alleges that he was discriminated against on
the basis of his race, color, age, and disability.

Plaintiff has

added a state law negligence claim.
Plaintiff also again sued the two originally named members
of the Kauai Police Department and added five more individuals
from the Kauai Police Department as Defendants.
On February 2, 2018, Plaintiff filed an Amended Complaint
entitled both “MEMORANDUM IN SUPPORT OF PLAINTIFF’S MOTION FOR

1

LEAVE TO FILE AMEMDED COMPLAINT FOR (ECF NO. 13)” and “MOTION FOR
LEAVE TO AMEND COMPLAINT”.

The Court construes Plaintiff’s

pleading as the First Amended Complaint.

The allegations in the

First Amended Complaint are insufficient to state a claim upon
which relief may be granted.
Defendants’ Motion to Dismiss (ECF No. 37) is GRANTED WITH
LEAVE TO AMEND.

PROCEDURAL HISTORY

On December 6, 2016, Plaintiff Danny Lee Creamer filed a
COMPLAINT FOR EMPLOYMENT DISCRIMINATION.

(ECF No. 1).

On June 1, 2017, Defendants filed a Motion to Dismiss
Plaintiff’s Complaint.

(ECF No. 13).

On November 30, 2017, the Court issue an Order dismissing
Plaintiff’s Complaint with leave to amend.

(ECF No. 25).

On February 2, 2018, Plaintiff filed an Amended Complaint
which also included in its title: “MEMORANDUM IN SUPPORT OF
PLAINTIFF’S MOTION FOR LEAVE TO FILE AMEMDED COMPLAINT FOR (ECF
NO. 13)” and “MOTION FOR LEAVE TO AMEND COMPLAINT”.
31).

(ECF No.

The Court construes Plaintiff’s filing as a First Amended

Complaint.
On February 20, 2018, Defendants filed a Motion to Dismiss
Plaintiff’s First Amended Complaint.

(ECF No. 37).

On March 8, 2018, Plaintiff filed a pleading bearing the
captions “PLAINTIFF’S PLEAD FOR AN EXTENSION TO FILE OPPOSITION

2

TO THE MOTION TO DISMISS (ECF NO. 13)” and “MOTION FOR AN
EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISS BY
DEFENDANTS.”

(ECF No. 39).

The Court construed Plaintiff’s

filing as a request for an extension of time to file his
Opposition.
On March 16, 2018, the Court granted Plaintiff’s first
request for an extension of time to file his opposition.

(ECF

No. 40).
On April 9, 2018, Plaintiff again filed a pleading bearing
the captions “PLAINTIFF’S PLEAD FOR AN EXTENSION TO FILE
OPPOSITION TO THE MOTION TO DISMISS (ECF NO. 13)” and “MOTION FOR
AN EXTENSION TO COMPLETE OPPOSITION TO THE MOTION TO DISMISS BY
DEFENDANTS.”

(ECF No. 41).

Once more, the Court construed

Plaintiff’s filing as a request for an extension of time to file
his Opposition.
On April 13, 2018, the Court granted Plaintiff’s second
request for an extension of time to file his opposition.

(ECF

No. 42).
On June 1, 2018, Plaintiff filed his Opposition.

(ECF No.

43).
On June 13, 2018, Defendants filed a Reply.

(ECF No. 44).

The court elects to decide the Motion without a hearing
pursuant to Local Rule 7.2(d).
BACKGROUND
Plaintiff Danny Lee Creamer was a police officer with the
3

Kauai Police Department for roughly twenty-four years.
Amended Complaint at p. 1, ECF No. 31).

(First

Plaintiff is African-

American and was fifty-eight years old when he stopped working at
the Department.

(Id. at pp. 6, 7).

Plaintiff names the County of Kauai, the Kauai Police
Department, and seven members of the Kauai Police Department as
Defendants.

(Id. at p. 2).

Of the seven individual Defendants,

only Lieutenant Scott Brede and Assistant Chief Roy Asher are
mentioned in the body of the First Amended Complaint.
According to Plaintiff’s First Amended Complaint:
In late 2013, the Kauai Police Department introduced a new
computer system for filing police reports.

(Id. at p. 3).

Plaintiff had difficulty learning how to use the system and
required overtime to complete inputting his reports.
3-4).

(Id. at pp.

Plaintiff was limited to three hours of overtime to

complete his reports.

(Id. at p. 3).

On January 1, 2014, Plaintiff began to suffer headaches,
stomach pain, diarrhea, sleeplessness, loss of appetite, loss of
weight, and chest pains.

(Id. at p. 4).

Plaintiff attributed

his symptoms to stress caused by his difficulties with the new
computer system.

(Id.)

Plaintiff’s doctor diagnosed him with a

stress related physiological response.

(Id. at pp. 4-5).

This

either caused his symptoms or affected preexisting ailments, such
as Plaintiff’s hypertension.

(Id. at pp. 4-5).

Plaintiff became

depressed when he was unable to meet the requirement that he
4

complete his reports without further assistance, unspecified
medical accommodations, or further training.

(Id. at p. 5).

Plaintiff alleges that he was treated disparately over the
course of his career with the Kauai Police Department.

Without

providing names, dates, or specifics, Plaintiff alleges that he
was passed over for promotions and assignments, denied fringe
benefits, and was not given leave for stress related conditions
because of his race and color.

(Id. at pp. 7, 8, 9, 13).

Plaintiff has not named any officers who were given leave due to
stress, what stress related conditions they experienced, or the
nature of the leave they were given.

(Id.)

Plaintiff states that unnamed officers created a hostile
work environment by saying unspecified things to him throughout
his career.

(Id. at pp. 8, 9).

intimidating, and harassing.

He states they were aggressive,

(Id.)

Plaintiff Also Alleges that:
At some point “[w]hile Plaintiff was in the process of
filing his documents to the court and waiting on the results,”
there was an incident involving an unidentified visitor to his
home.

(Id. at p. 10).

(Id.)

Unnamed officers arrived at the scene and arrested

Plaintiff.

(Id.)

In response, Plaintiff called the police.

Later, Plaintiff states that the charges

against him were dropped.
charges were.

(Id.)

He does not specify what the

Plaintiff alleges that unnamed officers falsified

their report of the incident.

(Id.)
5

Plaintiff claims that on

the day following Plaintiff’s arrest, Defendant Assistant Chief
Asher went to Plaintiff’s house to serve a “department document.”
(Id. at p. 11).

Plaintiff then accused Defendant Asher of having

him arrested the previous day, in retaliation to his claim
against the Kauai Police Department.
claim Plaintiff refers to.

(Id.)

It is not clear what

Plaintiff alleges that Defendant

Assistant Chief Asher responded by becoming upset, yelling at
Plaintiff and walking toward him in an aggressive manner.

(Id.)

STANDARD OF REVIEW
A court must dismiss a complaint as a matter of law pursuant
to Federal Rule of Civil Procedure 12(b)(6) where it fails “to
state a claim upon which relief can be granted.”

Rule (8)(a)(2)

of the Federal Rules of Civil Procedure requires “a short and
plain statement of the claim showing that the pleader is entitled
to relief.”

When considering a Rule 12(b)(6) motion to dismiss,

the Court must presume all allegations of material fact to be
true and draw all reasonable inferences in favor of the nonmoving party.
1998).

Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir.

Conclusory allegations of law and unwarranted inferences

are insufficient to defeat a motion to dismiss.

Id. at 699.

The

Court need not accept as true allegations that contradict matters
properly subject to judicial notice or allegations contradicting
the exhibits attached to the complaint.

Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
In Bell Atl. Corp. v. Twombly, the United States Supreme
6

Court addressed the pleading standards under the Federal Rules of
Civil Procedure in the anti-trust context.

550 U.S. 544 (2007).

The Supreme Court stated that Rule 8 of the Federal Rules of
Civil Procedure “requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action,” and
that “[f]actual allegations must be enough to raise a right to
relief above the speculative level.”

Id. at 555.

Most recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly are applicable
in all civil cases.

129 S.Ct. 1937 (2009).

The Court stated

that “the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an
unadorned, the-defendant-unlawfully-harmed-me-accusation.”
at 1949 (citing Twombly, 550 U.S. at 555).

Id.

To survive a motion

to dismiss, a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on
its face.

Id. (quoting Twombly, 550 U.S. at 570).

A claim has

facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.
Twombly, 550 U.S. at 556).

Id. (citing

The plausibility standard is not akin

to a “probability requirement,” but it asks for more than a sheer
possibility that a defendant has acted unlawfully.
Twombly, 550 U.S. at 556).

Id. (quoting

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
7

‘entitlement to relief.’”

Id. (quoting Twombly, 550 U.S.

at 557).
The complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the opposing
party to defend itself effectively” and “must plausibly suggest
an entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of discovery
and continued litigation.”

AE ex rel. Hernandez v. Cnty of

Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal quotations
omitted).
ANALYSIS
The Court construes Plaintiff’s pro se pleadings liberally.
Eldridge v. Block, 832 F.2d 1132, 1137 (9th Cir. 1987) (“The
Supreme Court has instructed the federal courts to liberally
construe the ‘inartful pleading’ of pro se litigants”) (citing
Boag v. MacDougall, 454 U.S. 364, 365 (1982) (per curiam)).
Allegations in a complaint may not simply recite the
elements of a cause of action, but the complaint must contain
sufficient allegations of underlying facts to give fair notice
and to enable the opposing party to defend itself effectively.
Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).

Factual

allegations taken as true must plausibly suggest an entitlement
to relief.

Id.

Even liberally construed, Plaintiff's First Amended
Complaint is vague and difficult to decipher.

8

I.

PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST THE INDIVIDUAL
DEFENDANTS WHO ARE MEMBERS OF THE KAUAI POLICE DEPARTMENT
A.

Plaintiff Has Failed To State A Claim Against
Lieutenant Brede and Assistant Chief Asher
1.

Plaintiff Is Unable To Bring The Federal
Employment Discrimination Claims Against
Lieutenant Brede And Assistant Chief Asher That
Were Previously Dismissed In The Court’s November
30, 2017 Order As They Fail As A Matter Of Law

Title VII of the Civil Rights Act of 1964, the Americans
with Disabilities Act, and the Age Discrimination in Employment
Act do not provide for personal liability against individuals.
Miller v. Maxwell's Int'l Inc., 991 F.2d 583, 587 (9th Cir.
1993)(no individual liability under Title VII or the Age
Discrimination in Employment Act);

Walsh v. Nevada Dep't of

Human Res., 471 F.3d 1033, 1038 (9th Cir. 2006)(no individual
liability under the Americans with Disabilities Act).
In its detailed Order filed on November 30, 2017, the Court
dismissed Plaintiff’s federal employment discrimination claims
against Defendants Lieutenant Scott Brede and Assistant Chief Roy
Asher brought pursuant to Title VII of the Civil Rights Act, Age
Discrimination in Employment Act, and Americans with Disabilities
Act.

(ECF No. 25).
Plaintiff has attempted to bring such claims against

Defendants Brede and Asher in the First Amended Complaint.
Plaintiff remains barred by the Court’s previous order from
asserting federal employment discrimination and retaliation
claims against Defendants Brede and Asher.
9

Semtek Int'l Inc. v.

Lockheed Martin Corp., 531 U.S. 497, 506 (2001).
In their Motion to Dismiss, Defendants incorrectly assert
that the Court dismissed Defendants Brede and Asher from the case
with prejudice.

(Motion to Dismiss at pp. 6-7, ECF No. 37-1).

Rather, the Court dismissed only the claims against Defendants
Brede and Asher brought pursuant to Title VII of the Civil Rights
act of 1964, the Age Discrimination in Employment Act, and the
Americans with Disabilities Act.

(Order Granting Motion to

Dismiss at p. 7, ECF No. 25).
2.

Plaintiff Is Unable To Bring A Federal Hostile
Work Environment Claim Against Lieutenant Brede
And Assistant Chief Asher

Individuals cannot be held personally liable for a hostile
work environment claim brought pursuant to Title VII of the Civil
Rights Act, the Americans With Disabilities Act, or the Age
Discrimination in Employment Act.

Washington v. Lowe’s HIW Inc.,

75 F.Supp.3d 1240, 1246-47 (N.D. Cal. Dec. 16, 2014) (citing
Holly D. v. Cal. Inst. Of Tech., 339 F.3d 1158, 1179 (9th Cir.
2003)).
Plaintiff’s First Amended Complaint attempts to state a
hostile work environment claim against Defendants Lieutenant
Brede and Assistant Chief Asher in violation of Title VII of the
Civil Rights Act of 1964, the Americans with Disabilities Act,
and the Age Discrimination in Employment Act.
Plaintiff is unable to bring a hostile work environment
claim pursuant to federal employment discrimination law against
10

Defendants Brede and Asher as a matter of law.
Plaintiff’s hostile work environment claim against
Defendants Brede and Asher is DISMISSED WITH PREJUDICE.

B.

Plaintiff Has Failed To State A Claim Against The Other
Five Individual Members Of The Kauai Police Department

Plaintiff must allege sufficient facts to plausibly suggest
that a named Defendant injured him in order to state a claim for
relief.

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556

(2007).
Plaintiff’s First Amended Complaint names Chief of Police
Darryl Perry, Deputy Chief Michael Contrades, Assistant Chief
Alejandre Quibilan, Sergeant Patrick Balbarino, and Sergeant
Sandy Wakamoto as Defendants in the caption of the First Amended
Complaint.
Plaintiff does not make a single factual allegation about
the five new individual defendants.
Defendants Perry, Contrades, Quibilan, Balbarino and
Wakamoto are DISMISSED as no claims have been stated against
them.

The First Amended Complaint alleges no cause of action

that would entitle Plaintiff to relief against these five
Defendants.
II.

Id. at 558.

PLAINTIFF IS UNABLE TO STATE A CLAIM AGAINST THE DEFENDANT
KAUAI POLICE DEPARTMENT
The Kauai Police Department is not an independent legal

11

entity separate from the County of Kauai.

Fisher v. Kealoha, 869

F.Supp.2d 1203, 1214 (D. Haw. 2012).
Plaintiff names the Kauai Police Department in the First
Amended Complaint.
defendant.

The Kauai Police Department is not a proper

Claims against the Kauai Police Department must be

brought against the County of Kauai, which is the proper legal
entity.

Plaintiff’s claims brought against the Kauai Police

Department are duplicative of claims against the County of Kauai.
The Kauai Police Department is DISMISSED from the case.

III. PLAINTIFF HAS FAILED TO STATE A CLAIM AGAINST THE DEFENDANT
COUNTY OF KAUAI

Plaintiff’s First Amended Complaint asserts six causes of
action against the County of Kauai:
First, failure to accommodate his disability.
Second, age discrimination.
Third, disparate treatment.
Fourth, hostile work environment.
Fifth, retaliation.
Sixth, Plaintiff mentions negligence as a claim related to
allegations of inadequate training, failure to provide a
reasonable accommodation, and failure to provide “reasonable due
process.”

12

FIRST CAUSE OF ACTION:

FAILURE TO ACCOMMODATE IN VIOLATION OF
THE AMERICANS WITH DISABILITIES ACT

The Americans with Disabilities Act (“ADA”) prohibits an
employer from discriminating against a qualified individual with
a disability with regards to the terms, conditions, and
privileges of employment because of their disability.

42 U.S.C.

§ 12112(a).
To state a prima facie case for failure to accommodate a
disability, a plaintiff must allege:
(1)

he was “disabled” within the meaning of the ADA
statute;

(2)

he was a “qualified individual,” meaning he was
able to perform the essential functions of his
job, either with or without reasonable
accommodations at the time of his disability; and,

(3)

he suffered an adverse employment action “because
of” his disability.

Hutton v. Elf Atochem North Am., Inc., 273 F.3d 884, 891
(9th Cir. 2001).
Plaintiff appears to state that his difficulties with the
new computer system instituted by the Kauai Police Department
caused him to develop a number of physical maladies and
depression.

Plaintiff suggests that his physical maladies and

depression were not then accommodated.
A.

Disability Under the Americans with Disabilities Act

The Americans with Disabilities Act defines disability with
respect to an individual as:
13

(A)

a physical or mental impairment that substantially
limits one or more of the major life activities of such
individual;

(B)

a record of such impairment; or

(C)

being regarding as having such an impairment.

42 U.S.C. § 12102(1).1
Plaintiff has not sufficiently pled that he is disabled.

In

the First Amended Complaint, Plaintiff alleges that stress
related to his inability to operate the new computer reporting
system caused him to have headaches, stomach pain, diarrhea,
sleeplessness, loss of appetite, loss of weight and chest pains.
(First Amended Complaint at p. 4, ECF No. 31).

Plaintiff later

states that he developed depression as a result of Defendant’s
failure to accommodate his disability.

(Id. at p. 5).

Plaintiff

does not allege that his depression, itself, was not
accommodated.
The nature, severity, duration, and impact of Plaintiff’s
alleged disability is unclear from the First Amended Complaint.
Plaintiff has also not identified a major life activity that has
been substantially limited by his alleged disability.

Walton v.

U.S. Marshals Serv., 492 F.3d 998, 1009 (9th Cir. 2007).
Plaintiff has not sufficiently pled that he is disabled

1

Plaintiff attempts to invoke the definition of disability
contained in the Equality Act of 2010. (Opposition at pp. 9-11,
ECF No. 43). The Equality Act of 2010 is an act of the
Parliament of the United Kingdom and not applicable to this case.
Equality Act 2010: guidance, GOV.UK,
https://www.gov.uk/guidance/equality-act-2010-guidance (last
visited July 18, 2018).
14

within the meaning of the Americans with Disabilities Act.
B.

Id.

Qualified Individual

The Americans with Disabilities Act defines “qualified
individual” as an individual with a disability who, with or
without reasonable accommodation, can perform the essential
functions of the employment position the individual holds or
desires.

42 U.S.C. § 12111(8); Nunes v. Wal-Mart, Stores, Inc.,

164 F.3d 1243, 1246 (9th Cir. 1999).
1.

Essential Functions

A job's essential functions are the fundamental job duties
of the employment position not including the marginal functions
of the position.

29 C.F.R. § 1630.2(n)(1); Bates v. United

Parcel Service, Inc., 511 F.3d 974, 990 (9th Cir. 2007).
Plaintiff states that before the introduction of the new
computer reporting system, he had been filling his reports ontime for over twenty years.
ECF No. 31).

(First Amended Complaint at p. 4,

Construing Plaintiff’s Complaint liberally, the

Court concludes that Plaintiff claims that filing reports is an
essential function of his duties as a police officer.
2.

Reasonable Accommodation

A reasonable accommodation is defined as modifications or
adjustments to the work environment, or to the manner or
15

circumstances under which the position 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).
According to Plaintiff, police officers were limited to
three hours of overtime to file reports.
No. 31).

(Complaint at p. 4, ECF

Plaintiff alleges he needed more than three hours of

overtime to complete his reports, but that “it was clear that
Plaintiff could not put more than 3 hours of overtime when it
wasn’t approved.”

(Id. at p. 6).

Plaintiff appears to argue

that additional overtime would be a reasonable accommodation for
his disability.
At this stage, it is impossible to determine if Plaintiff
has stated facts sufficient to allege that he is a qualified
individual with a disability.

Plaintiff has not sufficiently

alleged the nature of his disability, what accommodation he
believes would have allowed him perform the essential functions
of a police officer, and how such accommodation would have been
reasonable under the circumstances.
3.

Adverse Employment Action Under the Americans with
Disabilities Act

An adverse employment action “materially affects the
compensation, terms, conditions, or privileges of ...
employment.”

Davis v. Team Elec. Co., 520 F.3d 1080, 1089 (9th

Cir. 2008) (brackets omitted).
16

It is unclear what adverse employment action Plaintiff
alleges he was subject to.

Plaintiff states only that there were

“threats of disciplinary actions” and that he “was subject to an
adverse employment action.”
5).

(First Amended Complaint at pp. 4-

Threats of disciplinary action do not constitute an adverse

employment action.
875 (9th Cir. 1998).

Nunez v. City of Los Angeles, 147 F.3d 867,
Plaintiff also alleges that he was “first

to be sanctioned for not learning the system fast enough.”
(First Amended Complaint at p. 10, ECF No. 31).
Plaintiff provides no details about any specific
disciplinary sanction or whether other officers were later
sanctioned for being behind on their reports.

It is also not

clear from the First Amended Complaint whether Plaintiff was
terminated from his position or whether he voluntarily left the
position.

Plaintiff does not specify the date that he stopped

working for the Kauai Police Department.
Plaintiff’s conclusory allegations that he was discriminated
against on the basis of a disability are insufficient.

Pareto v.

F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).
Plaintiff’s First Amended Complaint fails to plead
sufficient facts to support a claim for a violation of the
Americans with Disabilities Act.
Plaintiff’s failure to accommodate claim is DISMISSED WITH
LEAVE TO AMEND.

17

SECOND CAUSE OF ACTION:

DISCRIMINATION ON THE BASIS OF AGE IN
VIOLATION OF THE AGE DISCRIMINATION IN
EMPLOYMENT ACT

The Age Discrimination in Employment Act (“ADEA”) prohibits
discrimination against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's age.

29 U.S.C. § 623(a)(1).

To establish a prima facie case of discrimination under the
Age Discrimination in Employment Act (“ADEA”), a plaintiff must
allege in his complaint that:
(1)

he was at least forty years old;

(2)

he was performing his job satisfactorily;

(3)

there was an adverse employment action; and,

(4)

he was either replaced by a substantially younger
employee with equal or inferior qualifications or
discharged under circumstances otherwise giving rise to
an inference of age discrimination.

Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201, 1207 (9th
Cir. 2008).
In the Court’s previous order dismissing Plaintiff’s
Complaint, the Court found that Plaintiff had not pled any of the
above elements for an age discrimination claim besides his age.
(Order at pp. 12-13, ECF No. 25).

Plaintiff repeats his error.

The First Amended Complaint alleges that he was fifty-eight years
old at the time in question.

(First Amended Complaint at p. 6,

ECF No. 31).
The First Amended Complaint does not provide the other three
elements required to state a prima facie case for age
18

discrimination.

Plaintiff makes contradictory allegations about

whether his performance was satisfactory.

Plaintiff states both

that he “never received less than satisfactory [on his
evaluations] in the 20 plus years of service” and that he
received “low evaluations to hinder his advancement.” (First
Amended Complaint at pp. 8, 9, ECF No. 31).

As explained above,

Plaintiff has not identified an adverse employment action.
In his Opposition to Defendants’ Motion to Dismiss,
Plaintiff for the first time alleges that he was denied
additional computer training granted to younger officers.
(Opposition at pp. 16-17, ECF 43-1).

Plaintiff is prohibited

from putting forth new facts for the first time in his
Opposition.

See Schneider v. Cal. Dept. of Corrections, 151 F.3d

1194, 1197 n.1 (9th Cir. 1998); Clegg v. Cult Awareness Network,
18 F.3d 752, 754 (9th Cir. 1994).
Plaintiff’s First Amended Complaint lacks sufficient detail
to support an Age Discrimination in Employment Act.

Plaintiff’s

Age Discrimination in Employment Act claim is DISMISSED WITH
LEAVE TO AMEND.

THIRD CAUSE OF ACTION:

DISPARATE TREATMENT ON THE BASIS OF RACE
AND COLOR IN VIOLATION OF TITLE VII OF
THE CIVIL RIGHTS ACT OF 1964

To establish a prima facie case of disparate treatment
pursuant to Title VII of the Civil Rights Act of 1964, a
plaintiff must demonstrate that:

19

(1)

he belongs to a protected class;

(2)

he was performing his job satisfactorily;

(3)

he suffered an adverse employment action; and,

(4)

similarly situated employees outside of his protected
class were treated more favorably.

Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028
(9th Cir. 2006) (citing McDonnell Douglas Corp. V. Green, 411
U.S. 792, 802 (1973)).
Plaintiff has sufficiently pled that he is a member of a
protected class in that he states he is African American and
Black.

(First Amended Complaint at p. 10, ECF No. 31).

Plaintiff makes only conclusory statements related to the other
three elements of a disparate treatment claim.

Plaintiff’s First

Amended Complaint requires more than labels and conclusions, and
a formulaic recitation of the elements of his cause of action.
Twombly, 550 U.S. at 555.
As stated earlier, Plaintiff makes contradictory allegations
about whether his performance was satisfactory.

Plaintiff states

both that he “never received less than satisfactory [on his
evaluations] in the 20 plus years of service” and that he
received “low evaluations to hinder his advancement.” (First
Amended Complaint at pp. 8, 9, ECF No. 31).
Plaintiff does not allege with specificity an adverse
employment event.

Plaintiff only states that he was “singled out

and treated with disparate treatment, even though other officers
of non-African Decent [sic] were in the same situation” and that
20

he was passed over for promotion, lateral movement to a different
department, fringe benefits, and assignments.
Complaint at p. 8, ECF No. 31).

(First Amended

His First Amended Complaint does

not provide a way to determine when these events occurred.

The

First Amended Complaint does not allege facts related to the
nature of the promotions, lateral movements, benefits or
assignments in question.

There are no dates in the First Amended

Complaint as to when any of these events allegedly took place.
Plaintiff also does not state the names and races of the
similarly situated officers who were allegedly treated more
favorably.

Plaintiff claims he was the “first to be sanctioned

for not learning the system fast enough” because of his race and
color.

(Id. at p. 10).

Plaintiff does not explain what the

sanction entailed, or whether other officers were later
sanctioned for being behind on their reports.
The conclusory nature of the First Amended Complaint does
not give fair notice for the County of Kauai to defend itself
effectively.

Starr, 652 F.3d at 1216.

Defendant cannot rebut

Plaintiff’s disparate treatment claim without more information.
Plaintiff’s claim for race and color discrimination under
Title VII of the Civil Rights Act of 1964 is DISMISSED WITH LEAVE
TO AMEND.

21

FOURTH CAUSE OF ACTION:

HOSTILE WORK ENVIRONMENT IN VIOLATION OF
TITLE VII OF THE CIVIL RIGHTS ACT

In order to state a claim for hostile work environment under
Title VII of the Civil Rights Act of 1964, a plaintiff must
allege facts to show:
(1)

he was subjected to discriminatory verbal or physical
conduct;

(2)

the conduct was unwelcome; and,

(3)

the conduct was sufficiently severe or pervasive to
alter the conditions of the plaintiff's employment and
create an abusive work environment.

Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 642 (9th Cir.
2003).
Plaintiff provided conclusory statements that “officers said
things ... that were aggressive, intimidating, harassing, and
created an environment of hostile [sic] in the workplace,” that
he was treated unfavorably because of his “hair texture, facial
expressions/features and personal characteristics”, and that he
was subject to unspecified “offhand comments, harassment, when
trying to do the job, aggressive and hostile which made the
Plaintiff feel uncomfortable.”

(First Amended Complaint at p. 8,

9, ECF No. 31).
Plaintiff’s statement is completely lacking in
particularity.

There are no facts to support a hostile work

environment claim.

There are no dates or locations of the

alleged events, no specifics as to any particular individuals

22

involved, and no details as to severity, duration, intensity, or
pervasive nature of these alleged incidents.
The First Amended Complaint does not give fair notice for
the County of Kauai to defend itself effectively.
F.3d at 1216.

Starr, 652

Defendant cannot rebut Plaintiff’s hostile work

environment claim without knowing which officers are alleged to
have made harassing statements, the content of those statements,
and when the statements were made.
Plaintiff’s federal hostile work environment claim is
DISMISSED WITH LEAVE TO AMEND.

FIFTH CAUSE OF ACTION:

RETALIATION IN VIOLATION OF TITLE VII OF
THE CIVIL RIGHTS ACT, THE AGE
DISCRIMINATION IN EMPLOYMENT ACT, AND
THE AMERICANS WITH DISABILITIES ACT

Employers are prohibited under Title VII of the Civil Rights
Act of 1964 from retaliating against employees who have “opposed,
complained of, or sought remedies for, unlawful workplace
discrimination.”

Univ. of Texas Sw. Med. Ctr. v. Nassar, 570

U.S. 338, 362-63 (2013); 42 U.S.C. § 2000e–3(a).
protections apply to police officers.

Title VII’s

Moore v. City of San Jose,

615 F.2d 1265, 1273 (9th Cir. 1980).
The Age Discrimination in Employment Act and Americans with
Disabilities Act contain parallel anti-retaliation provisions to
the anti-retaliation provision contained in Title VII.

Poland v.

Chertoff, 494 F.3d 1174, 1180 n.1 (9th Cir. 2007); Brown v. City
of Tucson, 336 F.3d 1181, 1186–87 (9th Cir. 2003).
23

To establish a prima facie case of retaliation, Plaintiff
must demonstrate that:
(1)

he engaged in a protected activity;

(2)

Defendants subjected him to an adverse employment
action; and

(3)

a causal link existed between the protected
activity and the adverse employment action.

Raad v. Fairbanks N. Star Borough Sch. Dist., 323 F.3d 1185,
1196-97 (9th Cir. 2003).
A.

Protected Activity

Plaintiff appears to argue that he engaged in protected
activities when he “was in the process of filling his documents
to the court and waiting on results” and he had filed an “EEOC
complaint and Workmen’s Compensation complaint.”

(First Amended

Complaint at pp. 10, 13, ECF No. 31); see Nilsson v. City of
Mesa, 503 F.3d 947, 954 (9th Cir. 2007).
There are insufficient facts to determine the timing of
Plaintiff’s protected activities for purposes of his retaliation
claim.

The record demonstrates that Plaintiff received a Right

to Sue Letter from the EEOC on September 27, 2016.

Plaintiff has

not stated the date he filed his complaint with either the EEOC
or with Workmen’s Compensation with the State of Hawaii.
Plaintiff has not provided sufficient particularity with
respect to his alleged protected activity based on “filing his
documents to the court.”

Plaintiff does not specify the exact

date when he engaged in the activity, with which court he filed
24

documents, and what documents he was filing that would constitute
his engagement in a protected activity.

Plaintiff has made

numerous filings in this Court alone.
There are insufficient facts to determine the relevance of
Plaintiff’s protected activities for purposes of his retaliation
claim.
B.

Adverse Employment Action

An adverse employment action materially affects the
compensation, terms, conditions, or privileges of employment.
Davis, 520 F.3d at 1089.

Plaintiff alleges that on some

unspecified date after he was “in the process of filing documents
with the court,” an incident with a visitor took place in his
home which necessitated calling the Police.
Complaint at pp. 10-11, ECF No. 31).

(First Amended

In his attempt to state an

adverse employment action, Plaintiff puts forth the following
statement:
First, Plaintiff didn’t commit any crimes, which
was later dropped, and the victim reported that the
report that they (officers) submitted is not what was
said to the police.
Second, Plaintiff was not given his rights but
handcuffed and transported to police cell block for
booking.
Third, there have been a few officers who
committed crimes and was arrested, and fired but they
were not handcuffed, they were not put in cellblock,
which can be proven at trial.
The next day, ASHER comes to Plaintiff’s house to serve
a department document, and when he was asked how this
could happen when Plaintiff was standing his grounds on
25

his own property to keep the intruder out, ASHER
answered, “sometimes the person calling the police gets
arrested.”
Plaintiff asked ASHER is he doing this because
Plaintiff was making a claim against the police the
department, he got upset and began yelling at me and
walking toward in an aggressive way trying to
intimidate, saying that the Plaintiff shouldn’t be
trying to tell him that he was retaliating against
Plaintiff.
ASHER then got in his police car and left.
That type of attitude is what Plaintiff had to
deal with throughout his career in the Police
department. There was a witness to the incident in my
carport area.
Plaintiff was working as Officer-in-Charge one
day, when he asked a Sargent whether his wife would
come to work because of the shortage. The Sargent got
upset, threw his keys on the floor, kicked the desk and
he rushed out the room. There were witnesses of the
incident as well.
(First Amended Complaint at pp. 10-11, ECF No. 31).
It is difficult to understand how Plaintiff’s arrest is
connected with his ambiguous statements about his various
complaints made with state agencies and an unspecified court.
Plaintiff has not demonstrated how the matters he has identified
could be construed as an adverse employment action by affecting
the compensation, terms, conditions, or privileges of his
employment.
C.

Davis, 520 F.3d at 1089.

Causal Link

The United States Supreme Court has recognized that a
plaintiff alleging unlawful retaliation pursuant to Title VII
must establish “but-for” causation, meaning the employee must
26

demonstrated that he would not have suffered the adverse
employment action but for his engagement in protected activity.
Nassar, 570 U.S. at 360-61.

But-for causation may be shown

through direct and circumstantial evidence.
809 F.2d 1371, 1376 (9th Cir. 1987).

Yartzoff v. Thomas,

Circumstantial evidence may

include employer's knowledge that the plaintiff engaged in
protected activities and the proximity in time between the
protected action and the allegedly retaliatory action.

Id.

The First Amended Complaint does not provide sufficient
allegations of a causal link between filling either the EEOC
Complaint, the Worker’s Compensation complaint, or the Complaint
herein (or in another court) and Plaintiff’s arrest.

Plaintiff’s

conclusory statement that the arrest was retaliatory is
insufficient.
Plaintiff has not provided any details about the timing of
his complaints and the timing of the arrest.

Plaintiff has not

stated on what date the arrest took place, which officers
arrested him, what he was arrested for, or the nature of the
underlying incident which led him to call the police.

In order

to state a claim for retaliation, Plaintiff must provide more
details relating to the circumstances of his arrest.

Plaintiff

has failed to sufficiently allege a causal link between his
alleged protected activities and his arrest.
Plaintiff’s claim for retaliation under either Title VII of
the Civil Rights Act of 1964, the Age Discrimination in

27

Employment Act, or the Americans with Disabilities Act is
DISMISSED WITH LEAVE TO AMEND.

SIXTH CAUSE OF ACTION:

NEGLIGENCE

The Hawaii Workers’ Compensation Law is the exclusive remedy
for negligence claims arising out of, and in the course, of
employment.

Furukawa v. Honolulu Zoological Society, 936 P.2d

643, 654 (Haw. 1997).

It states, in relevant part:

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 . . . 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.

Federal courts have interpreted

§ 386–5 to bar claims for negligence, negligent supervision, and
negligent training in employment discrimination suits.

Antoku v.

Hawaiian Elec. Co., 266 F.Supp.2d 1233, 1236–37 (D. Haw. 2003);
Dowkin v. City & Cty. of Honolulu, Civ. 10-00087 LEK, 2015 WL
4232424, at *3 (D. Haw. July 10, 2015).

To the extent Plaintiff

brings negligence claims, they are barred by Hawaii Workers’
Compensation Law.

Haw. Rev. Stat. § 386–5.

Plaintiff's negligence claim is DISMISSED WITH PREJUDICE.

28

PLAINTIFF’S REQUEST FOR PUNITIVE DAMGES
A.

Punitive Damages Are Not Available Against Public
Entities Pursuant to Title VII OF The Civil Rights Act

In his original Complaint, Plaintiff sought punitive damages
against the County of Kauai for his race discrimination claim
pursuant to Title VII of the Civil Rights Act of 1964.
(Complaint at p. 7, ECF No. 1).

In the detailed Order filed on

November 30, 2017, Plaintiff’s request for punitive damages
pursuant to his Title VII claim was dismissed with prejudice.
(ECF No. 25).
Punitive damages are not available against the County of
Kauai for Plaintiff’s Title VII claim as a matter of law.

Souza

v. Silva, Civ. 12-00462 HG-BMK, 2014 WL 2452579, at *16 (D. Haw.
May 30, 2014); Lauer v. Young Men's Christian Ass'n of Honolulu,
557 P.2d 1334, 1342 (Haw. 1976).
B.

Punitive Damages Are Not Available Against Public
Entities Pursuant to the Americans With Disabilities
Act and the Age Discrimination In Employment Act

Punitive damages may not be awarded in suits brought against
public entities under the Americans Disabilities Act or the Age
Discrimination in Employment Act.

Barnes v. Gorman, 536 U.S.

181, 189 (2002) (punitive damages are unavailable under the
Americans with Disabilities Act); Ahlmeyer v. Nevada Sys. of
Higher Educ., 555 F.3d 1051, 1059 (9th Cir. 2009) (punitive

29

damages are unavailable under the Age Discrimination in
Employment Act).
Plaintiff’s First Amended Complaint does not provide a cause
of action that would allow him to seek punitive damages against
the County of Kauai.
Plaintiff’s request for punitive damages against the County
of Kauai is DISMISSED WITH PREJUDICE.

CONCLUSION
The First Amended Complaint does not provide sufficient
detail in terms of dates, names, or locations to allow the County
of Kauai to defend itself.

Starr, 652 F.3d at 1216.

A pro se litigant must be given leave to amend his or her
complaint unless it is absolutely clear that the deficiencies of
the complaint may not be cured by amendment.

Karim–Panahi v. Los

Angeles Police Dept., 839 F.2d 621, 623 (9th Cir. 1988).
The Ninth Circuit Court of Appeals has held that the policy
of “freely” permitting a party to amend “is to be applied with
extreme liberality.”

Eminence Capital, LLC v. Aspeon, Inc., 316

F.3d 1048, 1051 (9th Cir. 2003).
Plaintiff filed his initial Complaint at the end of 2016.
(ECF No. 1).

After a Motion to Dismiss was filed against his

Complaint, Plaintiff was granted three separate extensions to
file his Opposition.

(ECF Nos. 17, 18, 21).

Plaintiff was then

granted an extension to file his First Amended Complaint.
No. 30).

(ECF

After the operative Motion to Dismiss was filed against
30

Plaintiff’s First Amended Complaint, he was again granted two
extensions to file his current Opposition.

(ECF No. 40, 42).

Plaintiff has been informed that both his Complaint and
First Amended Complaint lack particularity.

If Plaintiff intends to file a Second Amended Complaint,
Plaintiff is cautioned that it is necessary to remedy the
deficiencies in his pleadings, as follows:

(1): PLAINTIFF’S FEDERAL EMPLOYMENT DISCRIMINATION CLAIMS AGAINST
THE INDIVIDUAL DEFENDANTS ARE DISMISSED WITH PREJUDICE
The First Amended Complaint’s claims against Defendants
Asher and Brede are DISMISSED WITH PREJUDICE.
The First Amended Complaint’s claims against Defendants
Perry, Contrades, Quibilan, Balbarino and Wakamoto are DISMISSED
WITH PREJUDICE.
Plaintiff is unable to assert federal employment
discrimination claims against individual Defendants.

Plaintiff

is precluded from asserting such claims against the individual
Defendants or any individual member of the Kauai Police
Department pursuant to Title VII of the Civil Rights Act, the
Americans With Disabilities Act, or the Age Discrimination in
Employment Act in the Second Amended Complaint.

31

(2): PLAINTIFF’S CLAIMS AGAINST THE KAUAI POLICE DEPARTMENT ARE
DISMISSED WITH PREJUDICE
Plaintiff’s claims against the Kauai Police Department are
DISMISSED WITH PREJUDICE.
The Kauai Police Department is not a proper Defendant and
shall not be named in the Second Amended Complaint.

(3): PLAINTIFF’S CLAIMS AGAINST THE COUNTY OF KAUAI ARE DISMISSED
The following causes of action against the County of Kauai are
DISMISSED WITH LEAVE TO AMEND:
FIRST CAUSE OF ACTION for Failure to Accommodate in
Violation of the Americans With Disabilities Act
SECOND CAUSE OF ACTION for Discrimination on the Basis of
Age in Violation of the Age Discrimination in Employment Act
THIRD CAUSE OF ACTION for Disparate Treatment on the Basis
of Race and Color in Violation of Title VII of the Civil Rights
Act of 1964
FOURTH CAUSE OF ACTION for Hostile Work Environment in
Violation of Title VII of the Civil Rights Act
FIFTH CAUSE OF ACTION for Retaliation in Violation of Title
VII of the Civil Rights Act, the Age Discrimination in Employment
Act, and the Americans With Disabilities Act
The following causes of action against the County of Kauai are
DISMISSED WITH PREJUDICE and may not be reasserted in the Second
Amended Complaint:
SIXTH CAUSE OF ACTION for Negligence
REQUEST FOR PUNITIVE DAMAGES against the County of Kauai

32

Plaintiff may file a Second Amended Complaint curing the
deficiencies of his claims against the Defendant County of Kauai
on or before Tuesday, September 4, 2018.
Failure to timely amend and cure the pleading deficiencies
noted herein will result in dismissal of this action with
prejudice for failure to state a claim.

IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, July 18, 2018.

Danny Lee Creamer v. County of Kauai; Kauai Police Department;
Chief of Police, Darryl Perry; Deputy Chief, Michael Contrades;
Assistant Chief, Alejandre Quibilan; Sergeant, Patrick Balbarino;
Sergeant, Sandy Wakamoto; Lieutenant, Scott Brede; Assistant
Chief, Roy Asher, Civ No. 16-00648 HG-KJM; ORDER GRANTING
DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S FIRST AMENDED COMPLAINT
(ECF No. 37) WITH LEAVE TO AMEND
33