Chun v. City and County of Honolulu et al

Filing 49

ORDER Granting City and County of Honolulu's Motion To Dismiss With Leave to Amend, ECF 9 "For the foregoing reasons, the City's Motion to Dismiss is GRANTED, and the Complaint is DISMISSED with leave to amend. Chun is GRANTED until February 15, 2019 to file an Amended Complaint. Failure to file an Amended Complaint by February 15, 2019 will result in automatic dismissal of this action." Signed by JUDGE JILL A. OTAKE on 1/9/2019. (jo)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CIV. NO. 18-00131 JAO-RT

CURTIS CHUN,

ORDER GRANTING CITY AND
COUNTY OF HONOLULU’S
MOTION TO DISMISS WITH
LEAVE TO AMEND, ECF NO. 9

Plaintiff,
vs.
CITY AND COUNTY OF
HONOLULU, et al.
Defendants.

ORDER GRANTING CITY AND COUNTY OF HONOLULU’S MOTION
TO DISMISS WITH LEAVE TO AMEND, ECF NO. 9
I. INTRODUCTION
On April 10, 2018, Plaintiff Curtis Chun (“Plaintiff” or “Chun”) filed
this action alleging claims against Defendants City and County of Honolulu
(“City”), and City and County of Honolulu Department of Environmental Services
(“DES”)1 for violation of Title VII of the Civil Rights Act of 1964 (“Title VII”),

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The Court considers the claims against DES to be brought against the City
because DES is not an independent legal entity. For example, courts in the Ninth
Circuit have concluded that police departments are not independent legal entities,
and thus the municipality is the proper defendant. See, e.g., Eager v. Honolulu
Police Dep’t, 2016 WL 471282, at *1 n.1 (D. Haw. Feb. 4, 2016); Fisher v.
Kealoha, 869 F. Supp. 2d 1203, 1214 (D. Haw. 2012) (“Courts in the Ninth Circuit
(continued . . .)
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42 U.S.C. § 2000e et seq. Compl., ECF No. 1. Specifically, Chun brings two
claims: (1) “Hazardous Work Environment”; and (2) Wrongful Termination. Id.
Currently before the Court is the City’s Motion to Dismiss for failure
to state a claim. ECF No. 9. Based on the following, the Court GRANTS the
City’s Motion to Dismiss, with leave to amend.
II. BACKGROUND
A.

Factual Background
The factual allegations in the Complaint2 are as follows: Chun

worked for DES from 2003 to 2012. Compl. ¶¶ 11, 14. While working for DES,
he was exposed to hydrogen sulfide when he inspected wastewater areas. Id. ¶ 15.
As a result of this cumulative exposure, Chun suffers from toxic encephalopathy

(. . . continued)

generally have treated police departments as part of a municipality.”) (collecting
cases) (footnote omitted); Dowkin v. Honolulu Police Dep’t, 2010 WL 4961135, at
*3 (D. Haw. Nov. 30, 2010) (stating that the proper municipal defendant is the
City, not the Honolulu Police Department, because the police department is not an
independent legal entity). Further, the Hawaiʻi Supreme Court has held that
individual departments — such as the Building Department and the Department of
Housing and Community Development — are not independent legal entities and
thus separate from the City. City & Cty. of Honolulu v. Toyama, 61 Haw. 156,
161, 598 P.2d 168, 172 (1979).
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“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as
true all of the factual allegations contained in the complaint.” Erickson v. Pardus,
551 U.S. 89, 94 (2007).
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with symptoms including: collapsing, losing balance, trouble breathing, sensitivity
to many common odors and fumes, an anxiety disorder, weight loss, elevated blood
pressure, and sensitivity to microphones, televisions, and fluorescent lights. Id.
¶¶ 13-14, 17, 21-23. Chun sought medical treatment for his condition in 2006 and
several times in 2008. Id. ¶¶ 19-20. In 2009, his physician advised Chun to stay
away from hydrogen sulfide. Id. ¶ 20. It also appears that at some point Chun
brought a work injury claim to the Hawaii Department of Labor, which was
denied. Id. ¶ 18. Chun claims that “healthy people . . . are ridiculing him . . . and
discriminating against his disability.” Id. ¶ 25. Chun reported safety violations to
DES concerning hydrogen sulfide exposure. Id. ¶ 27. In retaliation for Chun’s
reporting these violations, DES terminated his employment on July 25, 2012. Id.
¶ 28.
B.

Procedural History
Chun filed his Complaint on April 10, 2018, alleging one count of

“hazardous work environment” and one count of wrongful termination. ECF
No. 1. On May 15, 2018, the City filed a Motion to Dismiss (the “Motion”). ECF
No. 9. The Motion was stayed pending resolution of Chun’s original counsel’s
Motion to Withdraw as Counsel, ECF No. 5. ECF No. 10. The Motion to
Withdraw as Counsel was granted on June 1, 2018. ECF No. 12. At that point,

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Chun proceeded on a pro se basis until a Notice of Appearance was filed on behalf
of Chun by new counsel on September 24, 2018. ECF No. 35. Chun filed his
Opposition to the Motion on September 24, 2018. ECF No. 36. The City filed its
Reply on October 8, 2018. ECF No. 39. The Court found the matter suitable for
decision without a hearing under Local Rule 7.2(d). ECF No. 47.
III. STANDARD OF REVIEW
Federal Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be granted.” A Rule 12(b)(6)
dismissal is proper when there is either a “lack of a cognizable legal theory or the
absence of sufficient facts alleged.” UMG Recordings, Inc. v. Shelter Capital
Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica
Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990)).
“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.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of Veterans Affairs,
521 F.3d 1061, 1065 (9th Cir. 2008). This tenet — that the court must accept as
true all of the allegations contained in the complaint — “is inapplicable to legal
conclusions,” and “[t]hreadbare recitals of the elements of a cause of action,

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supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678
(citing Twombly, 550 U.S. at 555). Rather, “[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.” Id. (citing
Twombly, 550 U.S. at 556). Factual allegations that only permit the court to infer
“the mere possibility of misconduct” do not show that the pleader is entitled to
relief. Id. at 679.
IV. DISCUSSION
The Court dismisses both of Chun’s claims: (1) the Title VII wrongful
termination claim; and (2) the “hazardous work environment” claim. To the extent
that Chun alleged a claim under the Americans with Disabilities Act (“ADA”), that
claim is also dismissed. The Court grants Chun leave to amend his Complaint,
with some conditions.
The City moves to dismiss the Complaint for failure to state a claim
upon which relief can be granted. ECF No. 9. The City argues that: (1) Chun’s
complaint is void of facts necessary to sustain a Title VII claim; (2) Chun’s work
injury claim is barred by the exclusive remedy provisions of the Hawaii Workers’
Compensation System; and (3) Chun’s claims are time-barred by Title VII’s statute
of limitations. ECF No. 9-1 at 4-7. In Chun’s Opposition, he argues that he

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“essentially brings his claim” under the ADA, 42 U.S.C. § 12101 et seq., and that
the ADA claim can survive a Rule 12(b)(6) motion. ECF No. 36 at 3. In the
City’s Reply, it argued that the Complaint should be dismissed because Chun did
not exhaust his administrative remedies prior to bringing suit. ECF No. 39 at 3-5.
The Complaint does not state either a Title VII or ADA claim that is
“plausible on its face.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570).
Title VII prohibits employers from discriminating against an employee based on
race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2. Among other
elements for a prima facie case of either disparate treatment or retaliation under
Title VII, the plaintiff must show that he or she belongs to a protected class. See
Cornwell v. Electra Cent. Credit Union, 439 F.3d 1018, 1028, 1034-35 (9th Cir.
2006) (describing prima facie elements for Title VII disparate treatment and
retaliation claims). A protected class under Title VII is based on “race, color,
religion, sex, or national origin.” 42 U.S.C. § 2000e-2. Chun never mentions race,
color, religion, sex, or national origin in his Complaint. Except for Chun asserting
in the Complaint that “[t]his is a civil action for . . . violations of the [sic] Title VII
of the Civil Rights Act[,]” Compl. ¶ 10, there is nothing in the Complaint that
actually invokes Title VII.

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The ADA prohibits employers from discriminating against “a
qualified individual on the basis of disability in regard to . . . terms, conditions, and
privileges of employment.” 42 U.S.C. § 12112(a). The prima facie elements for
an ADA claim for unlawful discharge are: “(1) [plaintiff] is a disabled person
within the meaning of the statute; (2) [plaintiff] is a qualified individual with a
disability; and (3) [plaintiff] suffered an adverse employment action because of his
disability.” Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001).
Nowhere does the Complaint assert that Chun suffered an adverse employment
action because of his disability. The only mention of discrimination in the
Complaint is that “healthy people who never experienced such condition are
ridiculing [Chun] are bullying him and discriminating against his disability.”
Compl. ¶ 25. Plaintiff does not assert that these “healthy people” are connected to
Chun’s employment or the City in any way. While the Complaint asserts that
Plaintiff was fired in retaliation, the alleged retaliation occurred because Chun
complained of safety violations from gas exposure not because of his disability.
Compl. ¶ 28.
As a final matter, there is no cause of action for “hazardous work
environment” to the Court’s knowledge, and the Complaint cited no basis
(statutory or otherwise) for such a cause of action. See Rollins v. VSE Corp., 2018

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WL 2077609, at *1 (E.D. Tex. May 4, 2018) (“Plaintiff’s ‘unsafe and hazardous
work environment’ claim fails because the Occupational Safety and Health Act
does not create a private cause of action for employees . . . .”). Chun does not
discuss the “hazardous work environment” claim in any meaningful way in the
Opposition. See ECF No. 36 at 3.
Thus, Chun fails to make a plausible Title VII claim, ADA claim, or
“hazardous work environment” claim. The Complaint fails to state a claim upon
which relief can be granted, therefore the Motion is granted with leave to amend.
Accordingly, the Court need not reach the other asserted grounds for dismissal.
Nevertheless, because Chun is granted leave to amend, the Court will
briefly address some of these issues. A plaintiff alleging employment
discrimination must file a charge with the Equal Employment Opportunity
Commission (“EEOC”) within 300 days of the unlawful employment practice. See
42 U.S.C. § 2000e-5(e)(1); Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
104-05 (2002); EEOC v. Global Horizons, Inc., 904 F. Supp. 2d 1074, 1090 n.2
(D. Haw. 2012) (“The 300-day limitations period is applicable . . . because Title
VII extends the 180-day period to 300 days if filed in a ‘worksharing’ jurisdiction
[like Hawaii].”). The same requirements apply to disability discrimination under
the ADA. See 42 U.S.C. § 12117(a). However, the time period for filing a charge

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with the EEOC is “subject to equitable doctrines such as tolling or estoppel.”
Morgan, 536 U.S. at 113. The plaintiff must exhaust administrative remedies prior
to bringing a lawsuit in federal district court. See, e.g., Pratt v. Haw., Dep’t of
Pub. Safety, 308 F. Supp. 3d 1131, 1142 (D. Haw. 2018) (discussing the
administrative steps required to be undertaken by plaintiff prior to bringing a Title
VII action in federal district court). The Complaint does not provide any
information about whether Chun has filed an EEOC claim or exhausted
administrative remedies. Chun must assert those facts in his amended complaint if
he chooses to file one.3
Finally, to the extent that Chun’s “hazardous work environment”
claim may be a common law negligent employment claim that arises “on account”

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If Chun has not already filed a charge with the EEOC or Hawaii Civil
Rights Commission, he faces a statute of limitations problem because his
employment was terminated well over six years ago. Compl. ¶ 28. Recognizing
this issue, Chun requested an evidentiary hearing on whether he is entitled to
equitable tolling. ECF No. 36 at 6. However, this request is premature. See, e.g.,
Huynh v. Chase Manhattan Bank, 465 F.3d 992, 1003-04 (9th Cir. 2006)
(“Generally, the applicability of equitable tolling depends on matters outside the
pleadings, so it is rarely appropriate to grant a Rule 12(b)(6) motion to dismiss
(where review is limited to the complaint) if equitable tolling is at issue.”);
Veronda v. Cal. Dep’t of Forestry & Fire Prot., 11 F. App’x 731, 735 (9th Cir.
2001) (“[E]quitable tolling is rarely resolved at the pleading stage.”). At
minimum, equitable tolling in this instance should be addressed after Chun is
allowed to file an amended complaint.

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of a work injury, Hawaii’s workers’ compensation statutes contain an exclusivity
provision that bars such a claim. See Hawaii Revised Statutes § 386-5; Clemmons
v. Haw. Med. Servs. Ass’n, 273 F.R.D. 653, 659 (D. Haw. 2011) (“[T]he court’s
conclusion today is in accordance with decisions in other cases in this district
holding that section 386-5 bars common law negligent employment claims arising
out of allegations of discrimination.”) (collecting cases). If Chun chooses to
amend the Complaint, he may not raise a common law negligent employment
claim that arises “on account” of a work injury.
V. CONCLUSION
For the foregoing reasons, the City’s Motion to Dismiss is
GRANTED, and the Complaint is DISMISSED with leave to amend. Chun is
GRANTED until February 15, 2019 to file an Amended Complaint. Failure to file
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an Amended Complaint by February 15, 2019 will result in automatic dismissal of
this action.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, January 9, 2019.

Chun v. City & Cty. of Honolulu, et al., Civ No. 18-00131 JAO-RT, Order Granting Motion to
Dismiss, ECF No. 9

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