Cuaresma v. Lockheed Martin Corporation et al

Filing 46

ORDER GRANTING DEFENDANT LOCKHEED MARTIN CORPORATION'S MOTION FOR SUMMARY JUDGMENT re: 28 "For the foregoing reasons, Defendant Lockheed's Motion for Summary Judgment is: 1. GRANTED as to Plaintiff Cuare sma's national origin discrimination claims because Plaintiff Cuaresma has abandoned those claims and agrees that summary judgment is appropriate; 2. GRANTED as to Plaintiff Cuaresma's age discrimination claims because Plaintiff Cuaresma has abandoned those claims and has failed to establish a prima facie case for age discrimination; 3. GRANTED as to Plaintiff Cuaresma's HWPA claim because Plaintiff Cuaresma has failed to establish the causal connection element of a prima facie HWPA retaliation claim." IT IS SO ORDERED. Signed by JUDGE ALAN C. KAY on 1/31/2019 (jo)

UNITED STATES DISTRICT COURT
DISTRICT OF HAWAI`I

MELECIO P. CUARESMA,
Plaintiff,
v.
LOCKHEED MARTIN CORPORATION,
JOHN DOES 1-5, JANE DOES 1-5,
DOE CORPORATIONS 1-5, DOE LLCS
1-5, DOE PARTNERSHIPS 1-5, DOE
NON-PROFIT ORGANIZATIONS 1-5,
and DOE GOVERNMENTAL AGENCIES 15;

CIV. NO. 17-00324 ACK-RT

Defendants.

ORDER GRANTING DEFENDANT LOCKHEED MARTIN CORPORATION’S MOTION
FOR SUMMARY JUDGMENT
For the reasons discussed below, Defendant Lockheed
Martin Corporation’s Motion for Summary Judgment is:
1.

GRANTED as to Plaintiff Cuaresma’s national
origin discrimination claims because Plaintiff
Cuaresma has abandoned those claims and agrees
that summary judgment is appropriate;

2.

GRANTED as to Plaintiff Cuaresma’s age
discrimination claims because Plaintiff Cuaresma
has abandoned those claims and has failed to
establish a prima facie case for age
discrimination;

3.

GRANTED as to Plaintiff Cuaresma’s Hawai`i
Whistleblowers’ Protection Act retaliation claim
because Plaintiff Cuaresma has failed to
establish the causal connection element of a
prima facie HWPA retaliation claim.

- 1 -

PROCEDURAL BACKGROUND
On February 13, 2017, Plaintiff Melecio P. Cuaresma
(“Plaintiff Cuaresma”) filed a Complaint in the Circuit Court of
the First Circuit, State of Hawai`i, in which he asserts two
counts against his former employer, Defendant Lockheed Martin
Corporation (“Defendant Lockheed”), and a series of Doe
defendants.

ECF No. 1-2.

The first count alleges that

Plaintiff Cuaresma was discriminated against because of his
national origin (Filipino) and age (62 at the time of the
alleged discrimination) 1

2

in violation of Hawai`i Revised

Statutes (“H.R.S.”) § 378-2; the second count alleges that
Plaintiff Cuaresma was terminated in retaliation for engaging in
a protected activity in violation of the Hawai`i Whistleblowers’
Protection Act (“HWPA”), H.R.S. § 378-62.

Compl. ¶¶ 11-16.

Prior to filing his Complaint, Plaintiff Cuaresma filed Charges
of Discrimination with the Hawai`i Civil Rights Commission and

1

Plaintiff Cuaresma’s Declaration states that he was born on
November 4, 1952 and was 63 years old at the time of the alleged
discrimination. ECF No. 41-1, Declaration of Melecio P.
Cuaresma, Jr. (“Pl. Decl.”) ¶ 3. Defendant Lockheed’s Concise
Statement of Facts states that Plaintiff Cuaresma was 62 years
old when he was terminated in July 2015. Def. CSF ¶ 2. Based
on the birthdate set forth in Plaintiff Cuaresma’s Declaration,
it appears that Plaintiff Cuaresma was, indeed, 62 years old at
the time of the alleged discrimination.
2 Remarkably, Plaintiff Cuaresma was 57 years old at the time he
was hired on July 19, 2010. Pl. Decl. ¶ 2. This raises serious
questions regarding his having brought an age discrimination
claim.
- 2 -

with the Equal Employment Opportunity Commission.

He received

right-to-sue letters from both agencies on November 15, 2016 and
on December 6, 2016, respectively, thereby exhausting his
administrative remedies.

Id. at ¶¶ 7-8.

On July 11, 2017,

Defendant Lockheed timely filed a Notice of Removal pursuant to
28 U.S.C. § 1446.

ECF No. 1.

Removal is proper pursuant to 28

U.S.C. §§ 1332 and 1441.
On September 12, 2018, Defendant Lockheed filed a
Motion for Summary Judgment (“Mot.”), a Memorandum in Support of
Motion (“Mem.”) and a Concise Statement of Facts (“Def. CSF”).
ECF Nos. 28, 28-1, 29.

On December 24, 2018, Plaintiff Cuaresma

filed his Concise Statement of Facts (“Pl. CSF”) in opposition
to Defendant Lockheed’s Concise Statement of Facts, and on
December 25, 2018, Plaintiff Cuaresma filed his Memorandum in
Opposition to Defendant Lockheed’s Motion (“Opp.”). 3

3

4

ECF Nos.

The Court notes that Plaintiff Cuaresma’s Memorandum in
Opposition and Concise Statement of Facts were not filed
contemporaneously as Local Rule 56.1(b) requires. Counsel for
Plaintiff Cuaresma also failed to timely submit two courtesy
copies of these filings as Local Rule 7.7 requires, and
neglected to tab and attach a copy of the Notice of Electronic
Filing to the courtesy copies that were finally submitted. The
Court directs counsel for Plaintiff Cuaresma to review Local
Rules 56.1 and 7.7 and ensure that future filings are strictly
compliant with the Local Rules.
4 The Court notes that Plaintiff Cuaresma’s Concise Statement of
Facts states that he does not oppose the facts numbered 1-31 as
set forth in Defendant Lockheed’s Concise Statement of Facts.
Pl. CSF at p. 1. Accordingly, those facts are deemed admitted.
See Local Rule 56.1(g).
- 3 -

41, 42.
Reply.

On December 31, 2018, Defendant Lockheed filed its
ECF No. 43.

The Court held a Hearing on Defendant

Lockheed’s Motion on January 15, 2019 at 11:00 a.m.
FACTUAL BACKGROUND
Defendant Lockheed operates a facility on a Navy base
at Ewa Beach that builds and rebuilds torpedoes.
Mem. at 3.

Def. CSF ¶ 1;

Defendant Lockheed hired Plaintiff Cuaresma as a

custodian/janitor at its facility on July 19, 2010.
1; Compl. at ¶ 10(a).

Def. CSF ¶

Because Defendant Lockheed’s facility is

located on a Navy base, Plaintiff Cuaresma was required to
undergo a background check and obtain government clearance prior
to being employed.

Def. CSF ¶ 1;

Mem. at 4.

Plaintiff Cuaresma principally complains that he was
terminated on July 17, 2015 in retaliation for reporting an
unsafe work condition to his union, which in turn notified
Defendant Lockheed of Plaintiff Cuaresma’s report.
¶¶ 9-14.

Pl. Decl. at

Plaintiff Cuaresma also alleges that he was terminated

due to his Filipino national origin and age.

Id.

Plaintiff

Cuaresma further complains that on June 19, 2015, he was
allegedly denied a promotion to the Engineering Technician I
(“Tech. I”) position while other younger, non-Filipino employees
were hired to fill those positions.

Id. at ¶ 6.

Plaintiff

Cuaresma also alleges that on June 30, 2015, he was suspended
because he left his backpack in an area where doing so was
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forbidden, while other younger, non-Filipino employees who did
the same were not similarly suspended.

Id. at ¶ 7.

The

specific facts relevant to each of these events are set forth
below.
I.

Plaintiff Cuaresma’s Work Performance History and the
Tech. I Position
As the sole custodian/janitor for Defendant Lockheed,

Plaintiff Cuaresma was responsible for cleaning Defendant
Lockheed’s building and its smoke shack.

Def. CSF ¶ 5; ECF No.

29-2, Deposition of Melecio P. Cuaresma, Jr. (“Pl. Dep.”) 35:1836:8.

Plaintiff Cuaresma’s responsibilities included cleaning

restrooms, offices, breakrooms and showers.
Dep. at 36:12-20.

Def. CSF ¶ 5; Pl.

Plaintiff Cuaresma was also required to take

out trash, clean tables, mop and wax floors, and clean
refrigerators and microwaves.
21.

Def. CSF ¶ 5; Pl. Dep. at 37:1-

Plaintiff Cuaresma’s direct supervisor was Ralph “Jim” Kirk

(“Mr. Kirk”), who reported to Richard J. Dunn (“Mr. Dunn”),
Defendant Lockheed’s General Manager.

Def. CSF ¶ 4.

The record demonstrates that Plaintiff Cuaresma often
had difficulty cleaning to the level that his position required,
and that he was repeatedly trained and counseled on his cleaning
ability throughout the course of his employment.
¶¶ 6, 8-17, 19-20, 23-24, 26-29, 31.

See Def. CSF

The record indicates that

between April 16, 2012 and June 17, 2015, Plaintiff Cuaresma was

- 5 -

provided with specific cleaning schedules and plans on at least
three occasions, which were designed help him clean more
effectively and better manage his cleaning duties.

See ECF No.

29-3, Declaration of Ralph J. Kirk, Jr. (“Kirk Decl.”) ¶¶ 5, 13,
20.

Plaintiff was also given instructions and/or demonstrations

on how to properly clean on at least fourteen occasions during
that same time period.

See id. ¶¶ 8-13, 16-19; ECF No. 29-4,

Declaration of Timothy Ahern (“Ahern Decl.”) ¶¶ 10-11, 13-14.
Plaintiff Cuaresma received several formal written and verbal
disciplinary warnings regarding the inadequacy of his job
performance.

Plaintiff Cuaresma received written warnings on

July 31, 2012 and on April 4, 2014.

Def. CSF ¶¶ 15, 28; Ahern

Decl. ¶¶ 5, 9; ECF Nos. 29-44, 29-47, Exhs. R, GG.

Plaintiff

Cuaresma received verbal warnings on July 11, 2012 and on April
15, 2013.

Def. CSF ¶ 13; Ahern Decl. ¶ 3; Kirk Decl. ¶ 23; ECF

No. 29-42, Exh. M.
the aforesaid facts.

Plaintiff Cuaresma does not object to any of
Pl. CSF. at p. 1.

Accordingly, pursuant

to Local Rule 56.1(g), 5 the aforesaid facts are deemed admitted.

5

Local Rule 56.1(g) reads “Admission of Material Facts. For
purposes of a motion for summary judgment, material facts set
forth in the moving party’s concise statement will be deemed
admitted unless controverted by a separate concise statement of
the opposing party.”
- 6 -

On May 27, 2015, Plaintiff Cuaresma applied for a
Tech. I position. 6

Def. CSF ¶ 36; Pl. Dep. 123:12-14.

The Tech.

I position involves working with dangerous ammunition, chemicals
and torpedo fuel; it also requires the ability to follow
instructions, computer literacy, and a high level of situational
awareness.

Def. CSF ¶¶ 36-37; ECF No. 29-26, Declaration of

Richard Dunn (“Dunn Decl.”) ¶¶ 26-27, 31.

On June 19, 2015,

Plaintiff Cuaresma learned that he was not selected for the
position.
II.

Def. CSF ¶ 37; Dunn Decl. ¶¶ 28-30; Pl. Decl. ¶ 6.
Plaintiff Cuaresma’s Suspension
On October 1, 2012, Plaintiff Cuaresma left his

backpack in a breakroom rather than storing it in a locker as
was required by a government policy.
¶ 17; Pl. Dep. 205:7-206:2.

Def. CSF ¶ 18; Kirk Decl.

Upon finding the backpack, Mr. Kirk

instructed Plaintiff Cuaresma that he needed to comply with the
government’s policy and store his backpack in a locker.

Def.

CSF ¶ 18; Kirk Decl. ¶ 17; Pl. Dep. 205:7-206:2; ECF No. 29-15,
Exh. U.

On June 25, 2013, Plaintiff Cuaresma again left his

backpack in the breakroom, and Mr. Kirk gave him a written
warning for violating the backpack policy for the second time.
6

Plaintiff Cuaresma appears to have applied for the same
position on numerous other occasions during the course of his
employment with Defendant Lockheed. Pl. Dep. 123:3-25.
However, the Complaint only features allegations related to
Plaintiff Cuaresma’s non-selection for the Tech. I position on
one occasion. See Compl. ¶ 10(e)
- 7 -

Def. CSF ¶ 25; Kirk Decl. ¶ 25; ECF No. 29-22, Exh. BB.
Plaintiff Cuaresma violated the backpack policy for a third time
on July 31, 2013, and on August 2, 2013, he received his second
written warning for having done so.

Def. CSF ¶ 25; Ahern Decl.

¶ 7; Pl. Dep. 208:5-9; ECF No. 29-46, Exh. CC.

On June 9, 2015,

Plaintiff Cuaresma received an Employee Performance Notice
because he violated the backpack policy for a fourth time on
June 4, 2015.
Exh. KK.

Def. CSF ¶ 30; Ahern Decl. ¶ 12; ECF No. 29-50,

Plaintiff Cuaresma was suspended from his employment

for three days beginning on June 10, 2015 as a result of this
fourth violation.

Id.

Plaintiff Cuaresma does not object to

any of the facts related to his suspension, so the aforesaid
facts are deemed admitted.
III.

See Pl. CSF at p. 1; L.R. 56.1(g).

Plaintiff Cuaresma’s Termination
The following events precipitated Plaintiff Cuaresma’s

termination.

At the end of the workday on July 13, 2015,

Plaintiff Cuaresma left a wet cleaning brush pad on an active
electrical transformer in Defendant Lockheed’s facility, which
created a safety hazard.

Def. CSF ¶¶ 32-33; Dunn Decl. ¶ 14.

Mr. Dunn reported this incident to the relevant Navy contracting
officer.

Def. CSF ¶¶ 32-33; Dunn Decl. at ¶ 15; ECF No. 29-35,

Exh. PP.

The Navy subsequently revoked Plaintiff Cuaresma’s

access to Defendant Lockheed’s facility, and Plaintiff Cuaresma
was asked to leave the facility on July 14, 2015.
- 8 -

Def. CSF ¶

33; Dunn Decl. ¶ 16; Pl. Decl. ¶ 8.

Plaintiff Cuaresma submits

that after he was asked to leave Defendant Lockheed’s facility
on July 14, 2015, he reported an unsafe work condition to his
union—the lack of any signage indicating that the transformer on
which he left a wet cleaning brush pad was an electrical hazard.
Pl. Decl. ¶ 10. 7
On the morning of July 15, 2015, Mr. Dunn decided to
terminate Plaintiff Cuaresma’s employment.

Def. CSF ¶ 33; Dunn.

Decl. ¶ 17; ECF No. 43-1, Second Declaration of Richard Dunn
(“Dunn Decl. II”) ¶ 3; ECF No. 29-36, Exh. QQ.

That same day at

11:33 a.m. Hawai`i time, Maria Lillis of Plaintiff Cuaresma’s
union emailed Virginia Lee (“Ms. Lee”), Defendant Lockheed’s
human resources representative, and inquired whether Plaintiff
Cuaresma had been terminated on July 14, 2015.
Dunn Decl. ¶ 18; see Exh. RR.

Def. CSF ¶ 34;

Ms. Lee responded to Ms. Lillis’s

email ten minutes later, with copy to Billy Panui (“Mr. Panui”),
another union representative, and stated that she had emailed
Mr. Panui earlier that morning to inform him that Plaintiff
Cuaresma was not terminated on July 14, 2015, but that his
7

Plaintiff Cuaresma has not submitted any evidence corroborating
these statements from his Declaration. An email submitted by
Defendant Lockheed indicates that at approximately 1:45 p.m.
Hawai`i time on July 14, 2015, Plaintiff Cuaresma told one of
his union representatives, Maria Lillis (“Ms. Lillis”), that he
believed he had been terminated; however, the email does not
indicate that Plaintiff Cuaresma reported an unsafe work
condition. See ECF No. 29-37, Exh. RR.
- 9 -

termination would be effective on July 17, 2015.
Dunn Decl. ¶ 18; Exh. RR.

Def. CSF ¶ 34;

Later on July 15, 2015, at 1:08 p.m.

Hawai`i time, 8 Ms. Lee sent an internal email requesting
preparation of a final paycheck for Plaintiff Cuaresma with an
official termination date of July 17, 2015.

Def. CSF ¶ 34; Dunn

Decl. ¶ 18; ECF No. 29-38, Exh. SS.
Just under two hours after Ms. Lee requested Plaintiff
Cuaresma’s final paycheck, Mr. Panui sent an email to Mr. Dunn
at 2:53 p.m. Hawai`i time requesting further clarification on
whether Plaintiff Cuaresma had been fired.

Mr. Panui also asked

for permission to access Defendant Lockheed’s facilities in
order to conduct a union investigation into the electrical
transformer incident.

Pl. Decl. ¶ 10; ECF No. 41-10, Exh. 9.

On the evening of July 15, 2015, at 6:26 p.m., Mr. Dunn
memorialized the decision he had made that morning to terminate
Plaintiff Cuaresma by inputting a formal termination request
into Defendant Lockheed’s internal human resources system.

8

Def.

Although the timestamp on Ms. Lee’s email indicates that she
sent her email at 4:08 p.m., the email also indicates that Ms.
Lee is based at the Vandenberg Air Force Base which is located
in California. See Exh. SS. During the month of July,
California observes Pacific Daylight Time, while Hawai`i
observes Hawai`i Standard Time. Pacific Daylight Time is three
hours ahead of Hawai`i Standard Time. Pursuant to Federal Rule
of Evidence 201(b)(2), the Court can take judicial notice of the
world’s time zones. See e.g., Papenthien v. Papenthien, 16 F.
Supp. 2d 1235, 1241 n. 4 (S.D. Cal. 1998). Accordingly, Ms.
Lee’s email was sent at 1:08 p.m. Hawai`i time.
- 10 -

CSF ¶ 33; Dunn Decl. ¶¶ 17-18;

Exh. QQ.

Ms. Lee approved the

termination request a few minutes later at 6:34 p.m. Id.
On July 16, 2015, Defendant Lockheed received notice
of an Occupational Safety and Health Administration (“OSHA”)
complaint regarding the electrical transformer incident, which
Plaintiff Cuaresma’s union had filed on his behalf earlier that
same day.

Dunn Decl. ¶ 20; ECF No. 29-40, Exh. UU.

On July 17,

2015, Mr. Dunn sent a letter to Plaintiff Cuaresma formally
notifying him that he was terminated.
Decl. ¶ 19; ECF No. 29-39, Exh. TT.

Def. CSF ¶ 34; Dunn.
The letter states that

Plaintiff Cuaresma was terminated due to his “unsatisfactory
level of situational awareness which create[d] a clear
safety/security risk as [he] demonstrated most recently by
placing wet cleaning materials on top and in front of active
electrical systems.”

Exh. TT.

At the Hearing held on January 15, 2019, counsel for
Plaintiff Cuaresma stated that his client had no reason to
dispute the timing of the aforesaid events as corroborated by
the various emails in the record.
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 56(a) mandates summary judgment “against
- 11 -

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 trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also
Broussard v. Univ. of Cal., 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. v. Zenith

Radio, 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
- 12 -

for the nonmoving party, and a dispute is ‘material’ only if it
could affect the outcome of the suit under the governing law.”
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” (internal
citation and quotation omitted)).
DISCUSSION
I.

H.R.S. § 378-2 Claims (Count One)
Plaintiff Cuaresma alleges that he was subject to

discrimination and terminated from his employment on the basis
of his Filipino national origin and age in violation of H.R.S. §
378-2.

See Compl. at ¶ 10(c)-(i).

H.R.S. § 378-2 states in

relevant part:
(a) It shall be an unlawful discriminatory
practice:
(1) Because of race, sex including gender
identity or expression, sexual orientation,
age, religion, color, ancestry, disability,
marital status, arrest and court record, or
domestic or sexual violence victim status .
. . :
(A) For an employer to refuse to hire or
employ or to bar or discharge from
employment, or otherwise to discriminate
- 13 -

against any individual in compensation or in
the terms, conditions, or privileges of
employment . . . .
H.R.S. § 378-2(a)(1)(A).
The Hawai`i Supreme Court has adopted a modified
version of the McDonnell Douglas burden-shifting framework,
which federal courts use in the context of Title VII and Age
Discrimination in Employment Act claims, when analyzing
discrimination claims involving intentional discrimination on
the basis of membership in a protected class under H.R.S. § 3782.

See Shoppe v. Gucci Am., Inc., 14 P.3d 1049, 1058-60, 94

Haw. 368, 377-79 (Haw. 2000); Furukawa v. Honolulu Zoological
Soc’y, 936 P.2d 643, 648, 85 Haw. 7, 12 (Haw. 1997); see also
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
First, the plaintiff must establish a prima facie case
of discrimination.

Shoppe, 94 Haw. at 378.

Second, once the

plaintiff establishes a prima facie case of discrimination, “the
burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action.”

Shoppe, 94 Haw. at 378.

“The employer’s explanation

must be in the form of admissible evidence and must clearly set
forth the reasons that, if believed by a trier of fact, would
support a finding that unlawful discrimination was not the cause
of the challenged employment action.”

Id.

Last, if the

employer rebuts the prima facie case, the burden shifts back to
- 14 -

the plaintiff to “demonstrate that the defendant’s proffered
reasons were ‘pretextual.’”
Douglas, 411 U.S. at 804).

Id. at 379 (quoting McDonnell
“A [p]laintiff may establish pretext

‘either directly by persuading the court that a discriminatory
reason more likely motivated the employer or indirectly by
showing that the employer’s proffered explanation is unworthy of
credence.’”

Shoppe, 94 Haw. at 379 (quoting Texas Dep’t of

Cmty. Affairs v. Burdine, 450 U.S. 248 at 254-55 (1981)).
Ultimately, the burden of persuasion remains with the plaintiff
at all times.

Id. at 378-79; Furukawa, 85 Haw. at 12-13.

The Court addresses Plaintiff Cuaresma’s national
origin discrimination claims and age discrimination claims in
turn.
A.

National Origin Discrimination Claims
Defendant Lockheed argues that the Court should grant

summary judgment on Plaintiff Cuaresma’s claim that he was
terminated on the basis of his Filipino national origin because
Plaintiff Cuaresma admitted during his deposition that he did
not believe he was terminated on that basis.
Pl. Dep. 198:13-24.

Mem. at 2, 29-30;

Although Plaintiff Cuaresma’s Complaint

does not allege that Defendant Lockheed failed to promote him on
the basis of his national origin, Plaintiff Cuaresma expressed
during his deposition his belief that he was not promoted
because of his Filipino national origin.
- 15 -

See Pl. Dep. 203:21-

204:13.

Plaintiff Cuaresma also stated that his suspension may

have been because of his national origin.

See Pl. Dep. 211:23-

212:3.
However, Plaintiff Cuaresma’s Memorandum in Opposition
states that because “Plaintiff admitted during his deposition
that he was not discriminated against because of his Filipino
ancestry/national origin, Plaintiff agrees that Defendant
Lockheed’s motion should be granted as to those claims.”
at 3.

Opp.

At the Hearing on Defendant Lockheed’s Motion, counsel

for Plaintiff Cuaresma reiterated that his client did not wish
to pursue his national origin discrimination claims.
Accordingly, because Plaintiff Cuaresma has explicitly abandoned
his national origin discrimination claims, Defendant Lockheed’s
Motion is GRANTED as to those claims.
B.

Age Discrimination Claims
Plaintiff Cuaresma alleges that Defendant Lockheed

suspended, failed to promote, and ultimately terminated him
because of his age.

Defendant Lockheed argues that the Court

should grant summary judgment in its favor on each of these
claims because Plaintiff Cuaresma has (1) failed to establish a
prima facie case of discrimination; (2) Defendant Lockheed had
legitimate, non-discriminatory reasons for taking adverse
employment actions against Plaintiff Cuaresma; and (3) Plaintiff
Cuaresma has not established that Defendant Lockheed’s reasons
- 16 -

were pretextual.

See Mem. at 25-29, 32-34.

Plaintiff does not

concede that his age discrimination claims should be dismissed
summarily, stating instead that he “defer[s] to the Court” with
respect to those claims.

Opp. at 4.

At the Hearing on

Defendant Lockheed’s Motion, counsel for Plaintiff Cuaresma
stated that his client did not wish to pursue his age
discrimination claims.
When a plaintiff does not address a claim or otherwise
respond to the defendant’s arguments on summary judgment, the
plaintiff is deemed to have abandoned the claim and entry of
summary judgment is appropriate.

Shakur v. Schriro, 514 F.3d

878, 892 (9th Cir. 2008) (citing Jenkens v. Cty. of Riverside,
398 F.3d 1093, 1095 n. 4 (9th Cir. 2005)).
Here, “Plaintiff does not present any argument in
opposition to Defendant Lockheed’s motion on the age
discrimination claim . . . .”

Opp. at 4.

Accordingly,

Plaintiff Cuaresma has failed to show that there is a genuine
issue for trial, and therefore the Court finds that summary
judgment in Defendant Lockheed’s favor is appropriate.

See,

e.g., Tatum v. DaVita Healthcare Partners, Inc., No. CV-1600185-PHX-SPL, 2018 WL 1586753, at *1 (D. Ariz. Mar. 31, 2018);
Anderson v. City and Cty. of San Francisco, 169 F. Supp. 3d 995,
1011 n. 6 (N.D. Cal. 2016); Scharf v. Trabucco, No. 3:14-CV8183-HRH, 2016 WL 3124621, at *1 (D. Ariz. Jun. 3, 2016).
- 17 -

Notwithstanding the foregoing, the Court holds in the
alternative that summary judgment in Defendant Lockheed’s favor
is appropriate because Plaintiff Cuaresma has failed to
establish prima facie claims of age discrimination.

The Court

addresses the merits of these claims because Plaintiff Cuaresma
did not expressly concede that summary judgment should be
granted in Defendant Lockheed’s favor (as he did with respect to
his national origin discrimination claims), choosing to instead
“defer to the Court.”

Opp. at 4.

To establish a prima facie case of discrimination in
violation of H.R.S. § 378-2, a plaintiff must demonstrate, by a
preponderance of the evidence, the following four elements:
“(1) that plaintiff is a member of a protected class; (2) that
plaintiff is qualified for the position for which plaintiff has
applied or from which plaintiff has been discharged; (3) that
plaintiff has suffered some adverse employment action, such as a
discharge; and (4) that the position still exists.”

Adams v.

CDM Media USA, Inc., 346 P.3d 70, 82, 135 Haw. 1, 13 (Haw. 2015)
(citing Shoppe 94 Haw. at 378-79).
In articulating the elements required to establish a
prima facie case of discrimination under H.R.S. § 378-2,
Defendant Lockheed states that the fourth element requires
Plaintiff Cuaresma to demonstrate that “similarly situated
individuals outside his protected class were treated more
- 18 -

favorably.”

Mem. at 20; see Hawn v. Exec. Jet Mgmt., Inc., 615

F.3d 1151, 1156 (9th Cir. 2010).

However, Hawai`i law does not

actually require the plaintiff to demonstrate that similarly
situated individuals outside of its protected class were treated
more favorably.

Instead, the fourth element of the modified

version of the McDonnell Douglas prima facie analysis used to
analyze H.R.S. § 378-2 claims requires the plaintiff to
demonstrate that “the position still exists.”

Adams, 135 Haw.

at 13 (citing Shoppe 94 Haw. at 378-79); Simmons v. Aqua Hotels
and Resorts, Inc., 310 P.3d 1026, 1031, 130 Haw. 325, 330 (Haw.
Ct. App. 2013).
Accordingly, the Court disregards Defendant Lockheed’s
arguments regarding Plaintiff Cuaresma’s failure to produce
evidence establishing that similarly situated individuals
outside of his protected class were treated more favorably.
The parties do not appear to dispute that Plaintiff
Cuaresma has met his burden with respect to the first, third,
and fourth elements of a prima facie age discrimination case.
The only evidence that Plaintiff Cuaresma proffers in support of
his age discrimination claims is his Declaration.

Opp. at 4.

Plaintiff Cuaresma has not met his burden in
establishing a prima facie case for age discrimination with
respect to any of the adverse employment actions of which he
complains because he has not established that he was qualified
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for the Tech. I position that he applied for, or for the
custodian/janitor position from which he was suspended and
terminated.

The Court first addresses Plaintiff Cuaresma’s

failure to promote claim, and then turns to the suspension and
termination claims.
i.

Failure to Promote Claim

The Tech. I position involves tasks related to
maintaining torpedoes, including working with live ammunitions
and hazardous chemicals and fuels.
¶ 26.

Def. CSF ¶ 37; Dunn Decl. at

The position requires a high level of situational

awareness, high mechanical aptitude, good verbal and written
communication skills, and the ability to follow specific
instructions.

Def. CSF ¶ 36; Dunn Decl. at ¶ 27.

The record

features significant evidence of Plaintiff Cuaresma’s inability
to perform his custodian/janitor job in a satisfactory manner,
which the Court has set forth supra.

Specifically, the record

indicates that Plaintiff Cuaresma was unable to adhere to simple
cleaning schedules and processes, repeatedly violated company
policies, was unable to follow basic instructions, and exhibited
a lack of situational awareness.

Dunn Decl. at ¶ 29.

For these

reasons, Mr. Dunn believed that Plaintiff Cuaresma was not
qualified for the Tech. I position and did not promote him.
Def. CSF ¶ 37; Dunn Decl. ¶¶ 28-30.

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Plaintiff Cuaresma has set forth no evidence in
rebuttal to establish that he was qualified for the Tech. I
position other than his statement that “[p]rior to and after
termination, I was fully capable of doing my job duties with
Defendant.”

Pl. Decl. at ¶ 14.

Accordingly, Plaintiff Cuaresma

has failed to “come forward with specific facts” showing that
there is a genuine triable issue as to his qualifications for
the Tech. I position.
at 247-48.

See Matsushita Indus. Elec. Co., 475 U.S.

As the Court has already noted, Plaintiff Cuaresma

does not object to the facts set forth in Defendant Lockheed’s
Concise Statement of Facts regarding his job performance.
CSF at p. 1.

Pl.

Plaintiff Cuaresma’s failure to object to any of

the aforesaid facts means that they are deemed admitted pursuant
to Local Rule 56.1(f).
Because Plaintiff Cuaresma has failed to provide
evidence establishing that he was qualified for the Tech. I
position, no reasonable factfinder could conclude that he has
established a prima facie case for an age discrimination failure
to promote claim.

For this reason, the Court finds that

Defendant Lockheed is entitled to judgment as a matter of law.
ii.

Suspension and Termination Claims

Plaintiff Cuaresma has similarly failed to establish
prima facie cases with respect to the other adverse employment
actions that he complains of—his suspension and termination.
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In

order to establish prima facie cases that these adverse
employment actions were taken because of his age, Plaintiff
Cuaresma must show that he was qualified for the
custodian/janitor position from which he was suspended and
ultimately terminated.

Because the analysis is the same for

both claims, the Court considers these claims together.
As the Court has discussed at length, Defendant
Lockheed has provided a detailed account of Plaintiff Cuaresma’s
poor performance as a custodian/janitor and history of workplace
infractions, which is uncontested.

Because Plaintiff Cuaresma

has not provided any evidence that he was qualified for the
custodian/janitor position, no reasonable factfinder could
conclude that he has established prima facie cases for age
discrimination claims with respect to his suspension and
termination.

Accordingly, the Court finds that Defendant

Lockheed is entitled to judgment as a matter of law.
II.

HWPA Retaliation Claim (Count Two)
Plaintiff Cuaresma alleges that he was terminated

after his union informed Defendant Lockheed that Plaintiff
Cuaresma reported an unsafe work condition in violation of the
HWPA.

Pl. Decl. ¶ 9; Opp. at 5.

Defendant Lockheed argues,

inter alia, that the Court should grant summary judgment in its
favor because Defendant Lockheed decided to terminate Plaintiff

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Cuaresma before learning of the report that he made to his
union.

Mem. at 36.
The HWPA states in relevant part:
An employer shall not discharge, threaten,
or otherwise discriminate against an
employee regarding the employee’s
compensation, terms, conditions, location,
or privileges of employment because:
(1) The employee, or a person acting on
behalf of the employee, reports or is about
to report to the employer, or reports or is
about to report to a public body, 9 verbally
or in writing, a violation or a suspected
violation of:
(A) A law, rule, ordinance, or regulation
adopted pursuant to law of this State, a
political subdivision of this State, or the
United States . . . .

H.R.S. § 378-62(1)(A).
Under Hawai`i law, three elements are required in
order to assert a prima facie HWPA claim.

Griffin v. JTSI,

Inc., 654 F. Supp. 2d 1122, 1130 (D. Haw. 2008) (citing Crosby
v. State Dep’t of Budget & Fin., 876 P.2d 1300, 1310, 76 Haw.
332, 342 (Haw. 1994)).

First, the plaintiff must establish that

it engaged in protected conduct as defined by the HWPA.
1131.

Id. at

Next, the plaintiff must show that the employer took some

9

The Court notes that HWPA’s definition of “public body” does
not include a labor union. See H.R.S. § 378-61. Accordingly,
Plaintiff Cuaresma did not engage in a protected activity when
he reported an unsafe work condition to his union. The
protected activity occurred when Plaintiff Cuaresma’s union,
acting on his behalf, allegedly informed Defendant Lockheed of
the report. See H.R.S. § 378-62(1).
- 23 -

adverse employment action against the plaintiff.

Id.

Finally,

the plaintiff must establish a causal connection between the
alleged retaliation and the whistleblowing.

Id.

Once the

plaintiff “make[s] a prima facie showing that his or her
protected conduct was a substantial or motivating factor in the
decision to terminate the [plaintiff],” the employer must “show
that the termination would have occurred regardless of the
protected activity.”

Id. at 1131-32.

Defendant Lockheed argues that Plaintiff Cuaresma
failed to establish an HWPA claim for two reasons.

First,

Defendant Lockheed argues that the email from Mr. Panui did not
constitute a protected activity under the HWPA because the email
did not actually inform Defendant Lockheed of Plaintiff’s unsafe
work condition complaint; second, Defendant Lockheed argues that
even if the email reported a protected activity, the email was
not a substantial or motivating factor behind the termination
decision because Defendant Lockheed decided to terminate
Plaintiff Cuaresma’s employment prior to receiving the email.
Reply at 4-5.

The parties do not dispute that Plaintiff

Cuaresma suffered an adverse employment action in the form of
Defendant Lockheed’s decision to terminate his employment.
Thus, the parties’ disputes are whether Plaintiff Cuaresma
engaged in a protected activity, and whether the causal

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connection exists between the protected activity and alleged
retaliation.
Regardless of whether the email from Mr. Panui to Mr.
Dunn reported a protected activity, the Court finds that
Plaintiff Cuaresma has failed to establish a causal connection
between the email and his termination.

Plaintiff Cuaresma

argues that the Court should infer a causal connection between
the alleged protected activity and the termination decision
because both events occurred in close proximity with one
another.

Plaintiff Cuaresma also, at the Hearing on Defendant

Lockheed’s Motion, argued that the Court should deny summary
judgment on the grounds that Defendant Lockheed did not follow
the appropriate investigatory procedure after the electrical
transformer incident occurred.

The Court addresses each

argument in turn.
A.

Causal Connection
Plaintiff Cuaresma argues that the close proximity of

time between Mr. Panui’s email to Mr. Dunn and the decision to
terminate Plaintiff Cuaresma creates a triable issue of fact
with respect to the causal connection requirement of a prima
facie HWPA claim.

Opp. at 12-13.

“Causation may be inferred when an adverse employment
action occurred ‘fairly soon after the employee’s protected
expression.’”

You v. Longs Drugs Stores California, LLC, 937 F.
- 25 -

Supp. 2d 1237, 1258 (D. Haw. 2013) (quoting Villiarimo v. Aloha
Island Air, Inc., 281 F.3d 1054, 1065 (9th Cir. 2002)).
“Causation sufficient to establish the . . . [causal link]
element of the prima facie case may be inferred from
circumstantial evidence, such as the employer’s knowledge that
plaintiff engaged in protected activities and the proximity in
time between the protected action and the allegedly retaliatory
employment decision.”

You, 937 F. Supp. 2d at 1258 (citing

Yartzoff v. Thomas, 809 F.2d 1371, 1376 (9th Cir. 1987)).
“Essential to a causal link is evidence that the employer was
aware that the plaintiff had engaged in the protected activity.”
Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th. Cir. 1982)
(citations omitted).
Plaintiff Cuaresma relies on another HWPA retaliatory
termination case from this Court in support of his argument that
the close proximity of time between the union’s email and the
decision to terminate Plaintiff Cuaresma creates a triable issue
of fact.

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

Haw. 2008).

Griffin is distinguishable from the instant case

for the reasons that follow.
Griffin involved plaintiffs who reported numerous
security violations to management on multiple occasions.
Supp. 2d at 1126-28.

654 F.

Management had knowledge of the complaints

and responded with alleged indifference.
- 26 -

Id.

This Court

determined that the plaintiffs met their burden to establish a
causal connection because plaintiffs “continued to report
alleged security violations” during the two days prior to their
termination, and therefore “[a] reasonable trier of fact could
infer . . . that the Plaintiffs’ persistent reporting . . .
motivated their removal and termination by Defendant JTSI.”

Id.

at 1133.
Griffin is distinguishable from the instant case
because it was undisputed that the Defendant JTSI had knowledge
of the plaintiffs’ complaints prior to terminating the
plaintiffs.

Here, the parties dispute whether Defendant

Lockheed had knowledge of Plaintiff Cuaresma’s complaint prior
making the decision to terminate plaintiff.

Accordingly, the

Court must address whether Defendant Lockheed had knowledge of
Plaintiff Cuaresma’s report prior to making the decision to
terminate his employment.
The record makes clear that Mr. Dunn decided to
terminate Plaintiff Cuaresma prior to receiving the email from
Mr. Panui—that is, before he had knowledge of the alleged
protected activity.

Mr. Dunn states that on the morning of July

15, 2015, he made the decision to terminate Plaintiff Cuaresma’s
employment.
Exh. QQ.

Def. CSF ¶ 33; Dunn. Decl. ¶ 17; Dunn Decl. II ¶ 3;

Mr. Dunn’s declarations and his termination letter to

Plaintiff Cuaresma establish, and the Court so finds, that Mr.
- 27 -

Dunn decided to terminate Plaintiff Cuaresma because the Navy
revoked his authorization to access Defendant Lockheed’s
worksite, as well as his very poor work record, unsatisfactory
level of situational awareness, and failure to take safety
precautions.

Dunn Decls. dated Sept. 10, 2018 and Dec. 28,

2018; Exh. TT.
Defendant Lockheed has submitted two emails
corroborating its position as to the timing of the termination
decision, both of which were sent by Ms. Lee of Defendant
Lockheed’s human resources department on July 15, 2015.

Ms. Lee

sent the first email to one of Plaintiff Cuaresma’s union
representatives at 11:43 a.m. Hawai`i time and informed the
union that Plaintiff Cuaresma was not fired on July 14, 2015,
but that his termination would be effective on July 17, 2015.
Def. CSF ¶ 34; Dunn. Decl. ¶ 18; Exh. RR.

Ms. Lee sent the

second email internally at 1:08 p.m. Hawai`i time 10 and requested
preparation of Plaintiff Cuaresma’s final paycheck with a
termination date of July 17, 2015.
18; Exh. SS.

Def. CSF ¶ 34; Dunn Decl. ¶

The timestamps on these emails indicate that both

were sent prior to 2:53 p.m., the time at which Mr. Panui
emailed Mr. Dunn.

See Pl. CSF ¶ 40, Exh. 9.

10

See footnote 6 supra regarding the timestamp on Ms. Lee’s
email.
- 28 -

Accordingly, the Court finds that even if Mr. Panui’s
email to Mr. Dunn constituted a protected activity, no
reasonable factfinder could conclude that Mr. Dunn decided to
terminate Plaintiff Cuaresma after receiving Mr. Panui’s email.
See You, 937 F. Supp. 2d at 1258 (rejecting the plaintiff’s
retaliatory termination claim because she failed to present any
evidence in support of it, including that the person who fired
her even knew about her complaints).

Thus, Plaintiff Cuaresma

has failed to make a prima facie showing that the alleged
protected activity was a substantial or motivating factor in
Defendant Lockheed’s decision to terminate, and Defendant
Lockheed is entitled to judgment as a matter of law.
The Court also notes that Plaintiff Cuaresma’s union
subsequently filed an OSHA complaint on his behalf on July 16,
2015, and that Defendant Lockheed was notified of the OSHA
complaint on that same day.
Decl. ¶ 12.

See Dunn Decl. ¶ 20; Exh. UU; Pl.

The parties do not dispute that the OSHA complaint

constitutes a protected activity.

However, it is also

undisputed that Defendant Lockheed decided to terminate
Plaintiff Cuaresma on July 15, 2015, and that Defendant Lockheed
received notice of the OSHA complaint on July 16, 2015—after the
termination decision was made.

Accordingly, no causal

connection exists between the OSHA complaint and the termination

- 29 -

decision and Defendant Lockheed is entitled to summary judgment
notwithstanding Plaintiff Cuaresma’s OSHA complaint.
B.

Failure to Investigate the Electrical Transformer
Incident
At the Hearing on Defendant Lockheed’s Motion, counsel

for Plaintiff Cuaresma argued that Defendant Lockheed was not
entitled to summary judgment because it failed to conduct a
proper investigation into the electrical transformer incident
that resulted in Plaintiff Cuaresma’s termination.

Counsel for

Plaintiff Cuaresma directed the Court’s attention to Exhibit 10
of his Concise Statement of Facts, a copy of the July 17, 2015
termination letter.

Pl. Decl. ¶ 24; ECF No. 41-11, Exh. 10.

Attached to the termination letter is a document that appears to
be a copy of the grievance Plaintiff Cuaresma filed with his
union.

Exh. 10 pp. 3-6.

The grievance describes the events

surrounding Plaintiff Cuaresma’s termination, and also alleges
that Defendant Lockheed failed to properly investigate the
electrical transformer incident and provide Plaintiff Cuaresma
with a critique.

Id. at p. 4.

Apparently, Defendant Lockheed

is required to investigate such incidents and critique the
offending employee within five business days of the incident
pursuant to the “IMA’s QA manual.” Id.

The grievance does not

explain what the “IMA’s QA manual” is; however, it appears that
the acronym “IMA” is used to refer to Defendant Lockheed’s

- 30 -

facility.

For example, the grievance alleges that in the

aftermath of the electrical transformer incident, Plaintiff
Cuaresma was “asked to leave the IMA and its premises.”

Id.

The Court is sympathetic to Plaintiff Cuaresma’s
situation and acknowledges that perhaps Defendant Lockheed did
not follow the appropriate internal procedure with respect to
the termination.

However, the question of whether Defendant

Lockheed adhered to an agreed-upon termination procedure is an
inquiry that is not relevant to a retaliation claim under the
HWPA.
CONCLUSION
For the foregoing reasons, Defendant Lockheed’s Motion
for Summary Judgment is:
1.

GRANTED as to Plaintiff Cuaresma’s national
origin discrimination claims because Plaintiff
Cuaresma has abandoned those claims and agrees
that summary judgment is appropriate;

2.

GRANTED as to Plaintiff Cuaresma’s age
discrimination claims because Plaintiff Cuaresma
has abandoned those claims and has failed to
establish a prima facie case for age
discrimination;

3.

GRANTED as to Plaintiff Cuaresma’s HWPA claim
because Plaintiff Cuaresma has failed to
establish the causal connection element of a
prima facie HWPA retaliation claim.

- 31 -

IT IS SO ORDERED.
DATED:

Honolulu, Hawai`i, January 31, 2019.

________________________________
Alan C. Kay
Sr. United States District Judge

Cuaresma v. Lockheed Martin Corporation, et al., Civ. No. 17-00324 ACK-RT,
Order Granting Defendant Lockheed Martin Corporation’s Motion for Summary
Judgment.

- 32 -