Ross vs. Rengo Packaging, Inc.

Filing 20

MEMORANDUM OPINION AND ORDER GRANTING DEFENDANT RENGO PACKAGING, INC.'S MOTION TO DISMISS : re 10 MOTION to Dismiss Plaintiff's Complaint Filed on May 3, 2017 filed by Rengo Packaging, Inc. Signed by MAGISTRATE JUDGE RICHARD L. PUGLISI on 08/31/2017. The Court GRANTS Defendant Rengo Packaging, Inc.'s Motion to Dismiss and GRANTS Plaintiff leave to file an amended complaint addressing the deficiencies identified above no later tha n September 15, 2017. If Plaintiff does not file an amended complaint by September 15, 2017, the Clerk of Court is directed to enter judgment in favor of Defendant. (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
IAN ROSS,
Plaintiff,
vs.
RENGO PACKAGING, INC.,
Defendant.

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CIVIL NO. 17-00200 RLP
MEMORANDUM OPINION AND ORDER
GRANTING DEFENDANT RENGO
PACKAGING, INC.’S MOTION TO
DISMISS

MEMORANDUM OPINION AND ORDER GRANTING
DEFENDANT RENGO PACKAGING, INC.’S MOTION TO DISMISS
Before the Court is Defendant Rengo Packaging, Inc.’s
Motion to Dismiss, filed on July 13, 2017 (“Motion”).
10.

Plaintiff filed his Opposition on August 9, 2017.

15.

Defendant filed its Reply on August 29, 2017.

ECF No.
ECF No.

ECF No. 19.

The Court finds this matter suitable for disposition without a
hearing pursuant to Rule 7.2(d) of the Local Rules of Practice
for the United States District Court for the District of Hawaii
and VACATES the hearing set for September 15, 2017.
13.

See ECF No.

After carefully reviewing the parties’ submissions and the

relevant legal authority, the Court GRANTS the Motion.
BACKGROUND
In his Complaint, Plaintiff alleges that he was hired
by Defendant on August 1, 2014.

ECF No. 1 ¶ 7.

Plaintiff

alleges that between August 1, 2014, and May 29, 2015, Plaintiff
was subjected to racial harassment by another employee who
repeatedly called Plaintiff a “f-ing haole,” even after Plaintiff

repeatedly told the employee to stop referring to him in that
manner.

Id. ¶¶ 8, 9.

Plaintiff alleges that he complained about

the harassment to the Defendants’ human resources manager, but no
action was taken to address the matter.

Id. ¶ 10.

Plaintiff

alleges that he was suspended from his job two times for leaving
in early 2015.

Id. ¶ 11.

Plaintiff alleges that he did not

violate the company’s workplace violence policy.

Id. ¶ 12.

Plaintiff alleges that he was terminated from employment with
Defendant on May 29, 2015, “due to discrimination based on his
race which is White, and in retaliation for complaining about
discrimination.”

Id. ¶¶ 4, 13.

Plaintiff asserts claims for race discrimination and
retaliation in violation of Title VII of the Civil Rights Act of
1964 and a claim under Hawaii’s Whistleblower’s Protection Act
(“HWPA”).

Id. ¶¶ 16-26.

Plaintiff also seeks damages for

intentional infliction of emotional distress.

Id. at 5.

In the present Motion, Defendant argues that
Plaintiff’s Complaint must be dismissed because it fails to
plausibly allege facts in support of Plaintiff’s Title VII and
HWPA claims.

ECF No. 10-1.

Defendant also argues that

Plaintiff’s claim for intentional infliction of emotional
distress must be dismissed because it is barred by the
exclusivity provision of Hawaii’s Workers’ Compensation Law.

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Id.

DISCUSSION
Under Rule 12(b)(6), the Court may dismiss a complaint
that fails “to state a claim upon which relief can be granted.”
Fed. R. Civ. P. 12(b)(6).

The Court must construe the complaint

in the light most favorable to the plaintiff and accept all
well-pleaded factual allegations as true.

Sateriale v. R.J.

Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012).

The

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

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting

Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).

“The

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

Id.

A

complaint that merely “offers ‘labels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action’” is
not sufficient.

Id. (quoting Twombly, 550 U.S. at 555).

If the

complaint is dismissed, the Court should grant leave to amend
unless the Court determines that the pleading cannot be cured by
new factual allegations.

OSU Student All. v. Ray, 699 F.3d 1053,

1079 (9th Cir. 2012).
I. Defendant’s Request to Dismiss Plaintiff’s Claim for
Intentional Infliction of Emotional Distress is GRANTED.
Defendant seeks dismissal of Plaintiff’s intentional
infliction of emotional distress claim on the basis that Hawaii’s
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Workers’ Compensation Statute, Hawaii Revised Statutes Section
386–5, provides the exclusive remedy for work-related injuries,
including emotional distress.

ECF No. 10-1 at 12-13.

“Generally, the workers’ compensation scheme serves to bar a
civil action for physical and emotional damages resulting from
work-related injuries and accidents.”
38 P.3d 95, 112 (Haw. 2001).

Nelson v. Univ. of Haw.,

“Under the workers’ compensation

statute, the workers’ compensation benefits provided to an
employee on account of a work injury ‘shall exclude all other
liability of the employer to the employee’ on account of that
injury.”

Yang v. Abercrombie & Fitch Stores, 284 P.3d 946, 950

(Haw. Ct. App. 2012); see also Chan v. Wells Fargo Advisors, LLC,
124 F. Supp. 3d 1045, 1060 (D. Haw. 2015) (holding that the
plaintiff’s claim for intentional infliction of emotional
distress related to his disability discrimination was barred by
section 386-5).

Although specific exceptions are enumerated in

the statute, they do not apply here.
5.

See Haw. Rev. Stat. § 386-

Plaintiff agrees that his claim for intentional infliction of

emotional distress should be dismissed.

See ECF No. 15 at 8.

Accordingly, Defendant’s request to dismiss this claim is
GRANTED.
II.

Defendant’s Request to Dismiss Plaintiff’s Title

VII Claims is GRANTED.
Title VII of the Civil Rights Act of 1964 prohibits
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employment discrimination based on race, color, religion, sex or
national origin.

42 U.S.C. § 2000e et seq.

“Title VII’s

anti-retaliation provision forbids employer actions that
discriminate against an employee . . . because he has opposed a
practice that Title VII forbids.”

Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 62 (2006) (citations omitted).
A.

Race Discrimination

To establish a prima facie case of unlawful
discrimination under Title VII, a plaintiff must plausibly allege
that: (1) he is a member of a protected class; (2) he was
qualified for his position; (3) he experienced an adverse
employment action; and (4) similarly situated individuals outside
the protected class were treated more favorably or other
circumstances surrounding the adverse employment action give rise
to an inference of discrimination.

Hawn v. Exec. Jet Mgmt., 615

F.3d 1151, 1156 (9th Cir. 2010); Berry v. Dep’t of Social Servs.,
447 F.3d 642, 656 (9th Cir. 2006).
Here, Defendant argues that Plaintiff’s race
discrimination claim fails because Plaintiff did not allege that
similarly situated individuals were treated more favorably.
No. 10-1 at 4-6.

The Court agrees.

ECF

Plaintiff has failed to

allege that similarly situated individuals outside of the
protected class were treated more favorably.

Although Plaintiff

alleges that another employee called him a “f-ing haole,” the

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Complaint does not contain any other allegations regarding other
employees or how they were treated by Defendant.

Additionally,

Plaintiff does not allege any other facts regarding the
circumstances of his termination that would “give rise to an
inference of discrimination.”

See Hawn, 615 F.3d at 1156.

Plaintiff alleges that he was “suspended from his job for
leaving” and “denies that he violated the company’s workplace
violence policy,” but these allegations do not suggest that he
was terminated based on discrimination.

Because Plaintiff fails

to allege that Defendant treated other similarly situated
employees more favorably or other facts that give rise to an
inference of discrimination, Plaintiff’s Complaint fails to state
a claim under Title VII for unlawful discrimination.

Defendant’s

request to dismiss this claim is GRANTED.
B.

Hostile Work Environment

Although Plaintiff’s Complaint does not expressly state
a claim for hostile work environment, Defendant argues in its
Reply that Plaintiff’s Opposition attempts to recharacterize
Plaintiff’s unlawful termination claim as a claim for hostile
work environment.

See ECF No. 19 at 5-9.

To state a hostile

work environment claim under Title VII, a plaintiff must
plausibly allege:

“(1) that he was subjected to verbal or

physical conduct of a racial nature; (2) that the conduct was
unwelcome; and (3) that the conduct was sufficiently severe or

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pervasive to alter the conditions of the plaintiff’s employment
and create an abusive work environment.”

Vasquez v. Cnty. of

L.A., 349 F.3d 634, 642 (9th Cir. 2003).

Whether conduct at

issue is “sufficiently severe or pervasive” to violate Title VII
turns on “all the circumstances, including the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.”

Id.

Additionally, “[t]he working environment must

both subjectively and objectively be perceived as abusive.”

Id.

Here, Plaintiff alleges that another employee
repeatedly called Plaintiff a “f-ing haole” even after Plaintiff
told that employee to stop referring to him in that manner.
No. 1 ¶¶ 8, 9.

ECF

However, the Complaint fails to allege conduct

that was so severe or pervasive to alter the conditions of
Plaintiff’s employment and create an abusive work environment.
Although Plaintiff alleges that another employee repeatedly
called him an offensive name, Plaintiff does not allege any facts
regarding the frequency and severity of the conduct or whether it
interfered with Plaintiff’s job performance.

Because Plaintiff

does not allege sufficient facts demonstrating that any conduct
was severe or pervasive enough to violate Title VII, Plaintiff’s
Complaint fails to state a claim under Title VII for hostile work
environment.

Defendant’s request to dismiss this claim is

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GRANTED.
C.

Retaliation

To state a prima facie case of retaliation, Plaintiff
must show that:

(1) he engaged in a protected activity; (2) he

was subjected to an adverse employment action; and (3) a causal
link exists between the protected activity and the adverse
employment action.

See Ray v. Henderson, 217 F.3d 1234, 1240

(9th Cir. 2000); Nidds v. Schindler Elevator Corp., 113 F.3d 912,
919 (9th Cir. 1996).

Here, Defendant argues that Plaintiff’s

retaliation claim fails because Plaintiff does not allege a
causal connection between the protected activity and the adverse
employment actions.

ECF No. 10-1 at 7-10.

The Court finds that

Plaintiff has failed to allege the required causal connection.
Plaintiff does not allege any direct evidence that Defendant
suspended him or terminated him because he complained about the
alleged racial harassment.

See ECF No. 1.

Plaintiff does not

allege any facts regarding when he complained about the alleged
racial harassment, which might allow the Court to infer a causal
link.

See id. ¶ 10; Villiarimo v. Aloha Island Air, Inc., 281

F.3d 1054, 1068 (9th Cir. 2002) (stating that “temporal proximity
between the protected action and the termination [would] give
rise to an inference of causation”).

Further, Plaintiff does not

allege any facts to suggest that the person who suspended or
terminated Plaintiff had knowledge of Plaintiff’s protected

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activity.

See Kapu v. Sears, Roebuck & Co., No. 09-00602 DAE

BMK, 2010 WL 2943339, at *10 (D. Haw. July 27, 2010) (dismissing
retaliation claim where the plaintiff failed to allege that the
person who terminated the plaintiff had knowledge of the
plaintiff’s protected act).

Because Plaintiff fails to allege a

causal link between his suspension or termination and his
protected activity, Plaintiff’s Complaint fails to state a claim
under Title VII for retaliation.

Defendant’s request to dismiss

this claim is GRANTED.
III.

Defendant’s Request to Dismiss Plaintiff’s Claim

Under Hawaii’s Whistleblowers’ Protection Action is GRANTED.
To state a claim under HWPA, Plaintiff must allege
that:

(1) he engaged in protected whistleblowing conduct;

(2) Defendant took some adverse action against him; and (3) there
is a causal connection between the adverse action and the
whistleblowing.

See Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122,

1131 (D. Haw. 2008) (citing Crosby v. State Dept. of Budget &
Fin., 876 P.2d 1300, 1310 (Haw. 1994)).

For the same reasons

discussed above regarding Plaintiff’s Title VII retaliation
claim, Plaintiff fails to allege a causal link between his
suspension or termination and his protected activity.
Defendant’s request to dismiss this claim is GRANTED.
Although Plaintiff’s Complaint fails to state a claim,
the Court cannot say at this initial stage that amendment would
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be futile.

Accordingly, with the exception of Plaintiff’s claim

for intentional infliction of emotional distress, the dismissal
of the Complaint is without prejudice and with leave to amend.
CONCLUSION
The Court GRANTS Defendant Rengo Packaging, Inc.’s
Motion to Dismiss and GRANTS Plaintiff leave to file an amended
complaint addressing the deficiencies identified above no later
than September 15, 2017.

If Plaintiff does not file an amended

complaint by September 15, 2017, the Clerk of Court is directed
to enter judgment in favor of Defendant.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, AUGUST 31, 2017.

_____________________________
Richard L. Puglisi
United States Magistrate Judge

ROSS v. RENGO PACKAGING, INC.; CIVIL NO. 17-00200 RLP; MEMORANDUM
OPINION AND ORDER GRANTING DEFENDANT RENGO PACKAGING, INC.’S MOTION TO
DISMISS

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