J. Michael Seabright, Chief United States District Judge.
Plaintiff Stanley R. Tsuji ("Plaintiff" or "Tsuji") was employed as a security guard with Defendant Kamehameha Schools ("Defendant" or "Kamehameha Schools"). Defendant terminated Plaintiff's employment after he was found sleeping while on duty, and then allowed those who woke him up to enter the campus without verifying their identities. In this action, Plaintiff, proceeding pro se, asserts claims against Defendant for violation of his "rights as an employee ... under numerous State and Federal Statutes," alleging he "suffered a [m]edical [r]elapse at work" and was thereafter "illegally [t]erminated" from his employment. Doc. No. 1-1, Compl. ¶¶ at 1-2. Currently before the court is Defendant's Renewed Motion for Summary Judgment, Doc. No. 56, and Plaintiff's Counter Motion for Summary Judgment. Doc. No. 61. For the following reasons, Defendant's Motion is GRANTED and Plaintiff's Counter Motion is DENIED.
The factual background is derived from Defendant's Concise Statement of Facts ("CSF"), Doc. No. 57, supported by evidence primarily consisting of (1) a Declaration of Lyan Bonn, an employee relations specialist at Kamehameha Schools, Doc. No. 57-8; (2) a Declaration of Michael Moses, Captain of Security at Kamehameha Schools, Doc. No. 57-9; (3) personnel documents disclosed by Defendant, Doc. No. 57-3; (4) Plaintiff's deposition testimony, and related deposition exhibits, Doc. No. 57-4, and (5) Plaintiff's redacted medical records. Doc. No. 57-5.
In response, Plaintiff submitted several exhibits that largely duplicate evidence already submitted by Defendant. Plaintiff did not, however, file a counter-statement of facts (a "separate document containing a single concise statement that admits or disputes the facts set forth" in Defendant's CSF) as instructed and as required by
Tsuji worked as a security guard for Kamehameha Schools from February 26, 2007 until his termination on November 25, 2013. Doc. No. 57-3 at 13-14, Def.'s Ex. A at KS-00013-14 (hiring letter); Doc. No. 57-4 at 82, Tsuji Dep. Ex. 10 at KS-00050 (termination letter).
Id. at 83, Tsuji Dep. Ex. 10 at KS-00051.
And Tsuji's employment records document that in fact he had been suspended for five days (and had been given a final written warning) after an investigation determined that he had falsified security logs in violation of Defendant's code of conduct and employee handbook. See Doc. No. 57-4 at 80-81, Tsuji Dep. Ex. 9. Tsuji also acknowledged that he had been suspended with pay for three days after others observed him sleeping while in a security truck (although the suspension was later rescinded).
Tsuji also does not dispute that he was sleeping during a midnight or "graveyard"
Tsuji's termination letter found him in violation of an employee handbook and a code of conduct stating:
Doc. No. 57-4 at 83, Tsuji Dep. Ex. 10 at KS-00051. He was also found in violation of "KS Procedure 410.10B — Discipline, Section J. Examples of Unacceptable Conduct," which states:
Id.
Tsuji contends that he is under a doctor's care, and was at the time of the October 2013 incident. Doc. No. 59, Pl.'s "Amended Pleadings" ¶ 1. He relies on a June 24, 2011 letter from Sarah J. Seabolt, M.D. (which was provided to Kamehameha Schools in June 2011) stating that "Mr. Stanley Tsuji is under my care. He reports exhaustion because of night shift work. Please consider reducing his work from 5 days a week to 3-4 days a week." Doc. No. 59-1, Pl.'s Ex. 1. Previously, on May 25, 2011, Tsuji had sought a schedule change from full-time to part-time. Doc. No. 57-8, Bonn Decl. ¶ 2. At that time, he was asked if this was a request for a reasonable accommodation under the ADA, and he responded "no." Doc. No. 57-4 at 8-9, Tsuji Dep. at 26, 29, 30; Doc. No. 57-8, Bonn Decl. ¶ 2. Nevertheless, after Kamehameha Schools received Dr. Seabolt's June 24, 2011 letter, "Tsuji was allowed to reduce his weekly work schedule to three first watch (11pm-7:45 am) shifts," Doc. No. 57-8, Bonn Decl. ¶ 3, that is, three days a week.
On July 22, 2011, Dr. Seabolt wrote to Kamehameha Schools that Tsuji's "health has improved significantly with his present work schedule. Based on this improvement, I feel it would now be reasonable to
Tsuji proffers no other evidence that could have indicated to Kamehameha Schools that he was disabled, at least until after the October 2013 sleeping incident. Tsuji testified at his deposition that between July or August of 2011 (when he discussed a modified work shift) until October of 2013 (when he was found sleeping on the job), he never spoke to anyone at Kamehameha Schools regarding a medical condition, a disability, or "problems with midnight shift work or problems with staying awake on duty." Doc. No. 57-4 at 24, Tsuji Dep. at 92-93; see also id. at 85 ("Nothing else was said to anybody else."); id. at 101 (agreeing that between those two events, Tsuji had not discussed feeling exhausted with anyone at Kamehameha Schools).
Tsuji argues that he "ha[d] given the Defendant[] notice of his Midnight shift disability ... which the Defendant[] acknowledge in their ... Exhibits 4 and 5, which documents and acknowledges by Dr. Sarah J. Seabolt M.D. that the Plaintiff suffered a 40% Midnight shift disability, and further diagnosed the Plaintiff with a 100% Midnight shift disability[.]" Doc. No. 61, Pl.'s Opp'n ¶ 3. He claims a violation of the Americans with Disabilities Act ("ADA"), appearing to argue that some type of vog sensitivity constitutes a disability.
Tsuji provides (1) a document dated December 3, 2013 (after his termination), apparently submitted for unemployment purposes where he stated that he had an "[i]mpairment from prolonged midnight shift," Doc. No. 59-3, Pl.'s Ex. 3 at 1, and (2) a December 30, 2013 document from Dr. Seabolt writing that Tsuji's "illness or disability" is "chronic fatigue," and that a limitation is "[n]o midnight shifts." Id. at 2. He also contended on November 8, 2013 during an investigation of the sleeping incident (prior to his termination) that he was "still under doctor's care for my work schedule." Doc. No. 57-9, Moses Decl. ¶ 6. He also claimed during the investigation on November 8, 2013 that:
After the investigation, Kamehameha Schools followed up on Tsuji's November 8, 2013 statements regarding medical care. Doc. No. 57, Def.'s CSF ¶ 20. A meeting was held on November 18, 2013 with Kamehameha Schools' Security Captain, Michael Moses; Employee Relations Specialist Lyan Bonn; Administrator B.J. Mau; and Tsuji. Doc. No. 57-8, Bonn Decl. ¶ 8; Doc. No. 57-4 at 110, Tsuji Dep. Ex. 15. During that meeting, Tsuji admitted that "even though he had told [Moses] in his November 8, 2013 written statement that he was still under a doctor's care, in fact he had not been under a doctor's care for exhaustion since 2011 when he requested the schedule he was working until his termination, and ... that he had never sought medical care concerning Vog symptoms." Doc. No. 57-9, Moses Decl. ¶ 8; see also Doc. No. 57-8, Bonn Decl. ¶ 9 ("Tsuji confirmed that an earlier statement on November 8, 2013 to Moses, that he was under a doctor's care for his work schedule, was false and that he had neither been under his doctor's care since 2011 nor sought medical care regarding Vog symptoms."). Specifically, when Tsuji was asked on November 18, 2013 about his claim of exhaustion, he responded as follows:
Doc. No. 57-4 at 111, Tsuji Dep. Ex. 15 at KS-00148. Tsuji has not contradicted Bonn's or Moses' testimony that he had not sought medical care for vog-related symptoms before November 2013, and the record at the time of termination contains no medical evidence of such a condition.
Tsuji, however, submits (1) a doctor's certificate dated December 4, 2014 (over a year after his termination) stating that he "suffers allergic rhinitis aggravated by VOG, requests indoor assignment," Doc. No. 61-5, Pl.'s Ex. 4, and (2) a new note from Dr. Seabolt dated December 17, 2014 addressed to "whom it may concern" stating that Tsuji "has a moderately severe reaction to the sulfur dioxide in vog" and requesting "indoor duties." Doc. No. 61-6, Pl.'s Ex. 5.
On November 3, 2014, Defendant filed a Motion for Summary Judgment (the "First Motion"). Doc. No. 26. After reviewing the record, the court raised two questions that had not been fully briefed:
Doc. No. 36. Ultimately, however, the court simply denied the First Motion without prejudice (making no rulings on any issue), and referred the case to a Magistrate Judge to assist Plaintiff with obtaining pro bono counsel for purposes of possibly resolving the action short of a motion or trial. Doc. No. 37. Efforts at such a resolution failed, and Defendant filed its Renewed Motion for Summary Judgment on October 30, 2015. Doc. No. 56. It accompanied its Motion with a Concise Statement of Facts, and evidence (much of which is undisputed) supporting its Motion. Doc. No. 57.
On November 20, 2015, Plaintiff filed several documents entitled "Amended Pleadings," Doc. No. 59, which the court construed as a filing related to the Renewed Motion for Summary Judgment. Doc. No. 60. On November 30, 2015, Plaintiff also filed a "2nd Motion in Opposition to Defendant's 2nd Motion for Summary Judgment," Doc. No. 61, as well as a "2nd Countermotion for Summary Judgment." Id. Defendant filed a Reply (also including an Opposition to the Countermotion) on December 7, 2015. Doc. No. 63. The court decides the Motions without a hearing under Local Rule 7.2(d).
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). Rule 56(a) mandates summary judgment "against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir.1999).
"A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact." Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir.2007) (citing Celotex, 477 U.S. at 323, 106 S.Ct. 2548); 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., 475 U.S. at 586-87, 106 S.Ct. 1348 (citation and internal quotation signals omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (stating that a party cannot "rest upon the mere allegations or denials of his pleading" in opposing summary judgment).
"An issue is `genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the non-moving 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, 106 S.Ct. 2505). 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, 106 S.Ct. 1348.
The only claim that Plaintiff exhausted with the Equal Employment Opportunity Commission was discrimination based on disability. See Doc. No. 57-4 at 112, Tsuji Dep. Ex. 16. Accordingly, although Plaintiff's Complaint alleges violations of his "rights as an employee ... under numerous State and Federal Statutes," the court construes the Complaint as alleging claims under the ADA and an equivalent state-law claim (Hawaii Revised Statutes ("HRS") § 378-2(a)(1)(A)).
Title I of the ADA, 42 U.S.C. § 12112(a), prohibits an employer from discriminating "against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." The court applies the burden-shifting analysis derived from McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Raytheon Co. v. Hernandez, 540 U.S. 44, 49-50, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (applying McDonnell Douglas burden shifting framework to ADA disability discrimination claim); Thorn v. BAE Sys. Haw. Shipyards, Inc., 586 F.Supp.2d 1213, 1218-19 (D.Haw.2008).
Under this burden-shifting analysis, Plaintiff must first establish a prima facie disability discrimination claim. See, e.g., Raytheon, 540 U.S. at 49 n. 3, 124 S.Ct. 513. Plaintiff must put forth evidence that: (1) he is "disabled" within the meaning of the statute; (2) he is a "qualified individual" (that is, he is able to perform the essential functions of his job, with or without reasonable accommodations); and (3) he suffered an adverse employment action "because of" his disability. See, e.g., Hutton v. Elf Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir.2001). "At the summary judgment stage, the `requisite degree of proof necessary to establish a prima facie case ... is minimal and does not even need to rise to the level of a preponderance of the evidence.'" Lyons v. England, 307 F.3d 1092, 1112 (9th Cir.2002) (quoting Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir.1994)).
If Plaintiff establishes his prima facie case, the burden then shifts to Defendant
The ADA defines disability with respect to an individual as "(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 an impairment; or (C) being regarded as having such an impairment[.]" 42 U.S.C. § 12102(1).
A reasonable jury could not conclude that Tsuji had a physical or mental impairment that substantially limited a major life activity (much less that he was regarded as having such an impairment) when he was terminated. Some evidence indicates that Tsuji was being treated in 2011 for exhaustion or fatigue — a condition that, according to Tsuji's doctor, was the result of night shift work. See Doc. No. 29-1, Pl.'s Ex. 1 ("He reports exhaustion because of night shift work."). But this condition could not "substantially limit" a "major life activity," such as working or sleeping, for purposes of the ADA. According to his doctor, Tsuji's exhaustion did not render him unable to work night shifts; on the contrary, his night-shift work was causing the exhaustion.
Tsuji argues that he had a "midnight shift disability," Doc. No. 61 at 4, Pl.'s Counter Motion ¶ 3, and thus Kamehameha Schools "could have adjusted the Plaintiff's shift to all dayshifts or evening shifts or some type of job retraining or work transfer." Id. ¶ 2. But a "midnight shift" is not a "physical or mental condition" that substantially limits a major life activity. Plaintiff thus appears to contend that fatigue or exhaustion prevents him from working midnight shifts. But "suffering from fatigue cannot qualify as a major life activity." Sussle v. Sirina Prot. Sys. Corp., 269 F.Supp.2d 285, 300 (S.D.N.Y. 2003). Thus, "[m]ere allegations of fatigue are ... not sufficient to demonstrate that [someone] is disabled under the ADA;
Here, there is no specific evidence of how Tsuji's fatigue significantly restricted a major life activity — there is no evidence, for example, indicating that Tsuji's "midnight shift disability" prevented him from staying awake in general, much less from working any late-night or graveyard shifts. Indeed, his doctor initially simply recommended fewer late shifts, and — when accommodated as she and Tsuji requested — his doctor told Kamehameha Schools a month later that his "health has improved significantly with his present work schedule," Doc. No. 59-2, Pl.'s Ex. 2, and requested additional late schedules be added. Id. ("Based on this improvement, I feel it would now be reasonable to add work on the `first watch' Saturday, Sunday and Monday and on the `2nd watch' Wednesday and Thursday.").
Aside from fatigue, the record contains evidence that Tsuji told Kamehameha Schools on November 8, 2013, during the investigation into the October 2013 sleeping incident (and shortly before his termination) that he was "still under doctor's care for my work schedule[.]" Doc. No. 57-4 at 102, Tsuji Dep. Ex. 11 at KS-00142. Tsuji also told Kamehameha Schools during the investigation that "Heavy Vog" "at times tends to substantially fatigue me greatly depending on the level of the Vog and Sulfur Dioxide level[.]" Id. But the record is undisputed that Kamehameha Schools did not ignore Tsuji's statements regarding vog — it followed up at another meeting on November 18, 2013, where Tsuji clarified that he had not been under his doctor's care for exhaustion since 2011, and had never been under medical care for a vog-related condition. Rather, Tsuji "surmise[d] that [vog] and the lack of trade winds may have contributed to his feeling exhausted." Doc. No. 57-4 at 111, Tsuji Dep. Ex. 15 at KS-00148. Thus, even assuming that vog sensitivity can in some circumstances cause disabling conditions, there is no evidence in this case that he had such a disability in November 2013 (nor that Kamehameha Schools could have known when it terminated him that Tsuji had such a disability). Even considering the relatively low standard upon which to assess whether a condition "substantially limits" a major life activity under the ADAAA, the record establishes no question of fact as to whether Tsuji could have
Moreover, even if Plaintiff could establish that he was disabled for purposes of the ADA, he cannot establish that he is a "qualified individual with a disability." "The ADA [] defines ... `qualified individual with a disability,' as an `individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.'" Nunes v. Wal-Mart, Stores, Inc., 164 F.3d 1243, 1246 (9th Cir.1999) (quoting 42 U.S.C. § 12111(8)). "To determine the essential functions of a position, a court may consider, but is not limited to, evidence of the employer's judgment of a position, written job descriptions prepared before advertising or interviewing applicants for the job, the work experience of past incumbents of the job, and the work experience of current incumbents in similar jobs." Basith v. Cook Cty., 241 F.3d 919, 927 (7th Cir.2001) (citing 29 C.F.R. § 1630.2(n)(3)).
Kamehameha Schools produces evidence establishing an obvious requirement that remaining awake is an essential function of Tsuji's job as a security guard. See Doc. No. 57-4 at 73, Tsuji Dep. Ex. 7 at KS-00063 (indicating that Tsuji was "counseled that it is inappropriate to sleep or give the impression of sleeping in a public area as the expectation is the security officers should be available to respond to emergencies and set a good example for others"); Doc. No. 57-4 at 83, Tsuji Dep. Ex. 10 at KS-00051 (reiterating "KS Procedure 410.10B" that "sleeping [or] giving the appearance of sleeping" is unacceptable conduct). And Tsuji offers no evidence disputing that remaining awake is an essential function of a security officer with Kamehameha Schools. Indeed, he admits that it is "common sense" that a security officer should not sleep on the job. Doc. No. 57-4 at 17, Tsuji Dep. at 65.
Here, although not clear, Plaintiff's theory would be premised on him having a medical condition that prevents or interferes with his ability to stay awake while on duty. Under this theory, he could not perform an indispensable function of a security guard at Kamehameha Schools — remaining alert and awake while on duty. See, e.g., Smith v. Sturgill, 516 Fed.Appx. 775, 776 (11th Cir.2013) ("Smith testified that she ... had trouble staying awake as a result of sleep apnea. Accordingly, she was unable to fulfill the essential functions of a Security Officer as established by the job posting and affidavits from Weiser management."); Roetter v. Mich. Dep't of Corr., 456 Fed.Appx. 566, 570-71 (6th Cir. 2012) (concluding that a prison employee with narcolepsy with "security duties" requiring "the ability to remain alert" as an essential function was not "otherwise qualified" under the ADA); cf. Gonzalez v. Allied Barton Sec. Servs., 2010 WL 3766964, at *5 (S.D.N.Y. Sept. 7, 2010) (concluding that a security officer that violated an employer's policy against sleeping on the job, with primary duties including remaining alert and aware of surroundings, was not satisfactorily performing her job); Donahue v. Consol. Rail Corp., 224 F.3d 226, 232 (3d Cir.2000) (concluding that a person with a condition that prevented being conscious and alert at all times was not qualified to be a train dispatcher); Trawick v. Hantman, 151 F.Supp.2d 54, 61 (D.D.C.2001) (finding no disability discrimination where "staying awake while on duty [was an] essential function[] of a [boiler plant worker] position").
In short, because Tsuji fails to satisfy this element of the prima facie case of disability discrimination, Kamehameha Schools is entitled to summary judgment in its favor.
During proceedings on the First Motion, the court raised a question regarding the
Barnett explains that an employer's obligation to engage in an interactive process is "triggered either by a request for accommodation by a disabled employee or by the employer's recognition of the need for such an accommodation." Id. at 1112; see also Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137 (9th Cir.2001). Likewise, however, there is no obligation to explore possible accommodations unless an employer knows about an employee's disability. See, e.g., 29 C.F.R. § 1630.9(a) ("It is unlawful for a covered entity not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified ... employee with a disability[.]").
Applied here, Kamehameha Schools had no reason to engage in an interactive process. The record establishes that Tsuji told Kamehameha Schools on November 8, 2013 that he was under a doctor's care for exhaustion and had a vog-related condition that "at times tends to substantially fatigue me greatly." Doc. No. 57-9, Moses Decl. ¶ 6. But, after further inquiry, Tsuji admitted on November 18, 2013 that his statement about being under a doctor's care was false (at least since 2011), and that he only "surmised" that vog might have contributed to his exhaustion. That is, Kamehameha Schools could not, at that time, have recognized a need for an accommodation for a disabled person.
In any event, Barnett also makes clear that there is no stand-alone claim for failure to engage in the interactive process. Rather, it held that "employers, who fail to engage in the interactive process in good faith, face liability for the remedies imposed by the statute if a reasonable accommodation would have been possible." Id. at 1116. See also, e.g., Spurling v. C & M Fine Pack, Inc., 739 F.3d 1055 n. 1 (7th Cir.2014) ("Failure of the interactive process is not an independent basis for liability under the ADA. An employee must still show that she is a `qualified individual with a disability' and that a reasonable accommodation would have allowed her to perform the essential functions of her job.") (citations omitted). That is, "failure to engage in [the interactive] process is not itself evidence of failure to reasonably accommodate. There must first exist a reasonable accommodation that will enable the employee to perform the essential functions of the position." Kramer v. Tosco Corp., 233 Fed.Appx. 593, 596 (9th Cir.2007) (mem., cited as persuasive authority) (citation omitted). This is because "[i]f a disabled person cannot perform a job's essential functions (even with a reasonable accommodation), then the ADA's employment protections do not apply." Cripe v. City of San Jose, 261 F.3d 877, 884 (9th Cir.2001). Accordingly, given the conclusion that Plaintiff was not a qualified individual with a disability, Kamehameha Schools cannot be liable for failing to engage in an interactive process.
What's more, even if the record could establish a prima facie case of disability
Kamehameha Schools has given a legitimate, non-discriminatory reason for terminating Tsuji — Tsuji's violation of job duties and work procedures, by his falling asleep on the job and allowing persons on the school campus without verifying their identities, and having had a prior incident of falsifying security logs. And Tsuji has no evidence that could possibly indicate that his termination was pretext for illegal discrimination. Raytheon, 540 U.S. at 49 n. 3, 124 S.Ct. 513 ("The burden then shifts to the employer to articulate a legitimate, nondiscriminatory reason for its employment action. If the employer meets this burden, the presumption of intentional discrimination disappears, but the plaintiff can still prove disparate treatment by, for instance, offering evidence demonstrating that the employer's explanation is pretextual.") (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817).
For example, Tsuji has no "specific" and "substantial" evidence "that the employer's proffered motive[ ] [was] not the actual motive[ ] because [it is] inconsistent or otherwise not believable." Godwin v. Hunt Wesson, Inc., 150 F.3d 1217, 1222 (9th Cir.1998). He has no evidence that the reasons given are "unworthy of credence," Hernandez v. Hughes Missile Sys. Co., 362 F.3d 564, 568 (9th Cir.2004) (quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000)), or "other circumstantial (as well as direct) evidence from which a reasonable jury could conclude that the employee's disability actually motivated the [termination] decision." Id. (citing Desert Palace, Inc. v. Costa, 539 U.S. 90, 101, 123 S.Ct. 2148, 156 L.Ed.2d 84 (2003)).
In sum, absent any evidence that could be construed as pretextual, Tsuji's ADA claim would fail even if he could establish a prima facie case. Accordingly, Kamehameha Schools is entitled to summary judgment on Tsuji's disability claims under the ADA. The same result follows to the extent Tsuji is making a similar claim under HRS § 378-2. See Vanhorn, 979 F.Supp.2d at 1090 n. 5 (applying ADA framework to HRS § 378-2 disability claim). It necessarily follows that Tsuji cannot prevail on his Counter Motion for Summary Judgment, which seeks a ruling as a matter of law that he was the victim of unlawful discrimination.
Next, although the basis is not entirely clear, Tsuji appears also to be claiming retaliation. See Doc. No. 61, Pl.'s Counter Motion ¶ 4 ("The Defendant's representatives... violated their fiduciary duties ... when they [i]llegally and [w]rongfully [terminated] the Plaintiff's employment violating the [ADA] and other federal civil rights violations under Conspiracy and Retaliation."). Such a claim fails.
The ADA contains the following anti-retaliation provision:
42 U.S.C. § 12203(a). "To establish a prima facie case of retaliation under the ADA, an employee must show that: (1) he or she engaged in a protected activity; (2) suffered an adverse employment action; and (3) there was a causal link between the
Tsuji fails to establish a prima facie case of retaliation. There is no evidence he was engaged in a "protected activity." He did not, for example, make a report or complaint of disability discrimination to any relevant authority before being terminated. Although "[p]ursuing one's rights under the ADA constitutes a protected activity," id. at 850, the record contains no evidence that Tsuji was pursuing a right under the ADA when employed with Kamehameha Schools.
Moreover — even assuming there is a question regarding whether Tsuji was pursuing a right under the ADA simply by requesting a schedule change — there is no evidence of a "causal link" between his termination (which occurred in November 2013) and his last request for a schedule change (in June 2011). Absent any other evidence, this 29-month gap is sufficient to break any link between protected activity and the adverse action. See, e.g., Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 274, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001) ("Action taken (as here) 20 months later suggests, by itself, no causality at all."); McCollum v. Cal. Dep't of Corr. & Rehab., 647 F.3d 870, 882 (9th Cir.2011) (concluding that a nearly three year gap "does not support an inference of motive"); Vasquez v. Cty. of Los Angeles, 349 F.3d 634, 646 (9th Cir.2004) (reasoning that a thirteen-month period is too long to support an inference of causality).
Further, as established above with the ADA claim, even if Tsuji could establish a prima facie case, Kamehameha Schools has proffered a legitimate, nondiscriminatory reason for its action (Tsuji's violation of work policy, sleeping on the job, falsifying security records), and there is no evidence of pretext. See, e.g., Vasquez, 349 F.3d at 647 ("[A]ssuming that the transfer is an adverse employment action, [plaintiff] has not shown either a causal link or that the employer's proffered reason was pretextual").
In short, to the extent Plaintiff is claiming illegal retaliation under the ADA, such a claim fails as a matter of law.
For multiple reasons as set forth above, Defendant Kamehameha Schools' Renewed Motion for Summary Judgment, Doc. No. 56, is GRANTED, and Plaintiff's Counter Motion for Summary Judgment, Doc. No. 61, is DENIED. The Clerk of Court shall issue judgment in favor of Defendant and close the case file.
IT IS SO ORDERED.
Vanhorn v. Hana Grp., Inc., 979 F.Supp.2d 1083, 1090 n. 5 (D.Haw.2013) (quoting Thorn v. BAE Sys. Haw. Shipyards, Inc., 586 F.Supp.2d 1213, 1219 (D.Haw.2008)). "Accordingly, the court sets forth a single framework for Plaintiff's claims pursuant to the ADA and HRS § 378-2." Id.
Current regulations indicate that "episodic" impairments can constitute a disability. See 29 C.F.R. § 1630.2(j)(1)(vii) ("An impairment that is episodic or in remission is a disability if it would substantially limit a major life activity when active."); 29 C.F.R. § 1630.2(j)(1)(ix) ("The effects of an impairment lasting or expected to last fewer than six months can be substantially limiting within the meaning of this section.").
