J. MICHAEL SEABRIGHT, District Judge.
Plaintiff Scott Hughes ("Plaintiff"), a former security guard/bellman at the Waikiki Sand Villa Hotel, Inc. (the "Hotel"),
Currently before the court are three Motions for Summary Judgment, including (1) Defendants' Motion as to all claims; (2) the Hotel's Motion as to all claims against it and for back pay; and (3) Mayoral's Motion as to the state law claims alleged against him.
Principle Hotels manages the Hotel's operations and employs all of the Hotel's employees. Doc. No. 35-4, Sheldon Yoshida Decl. ¶¶ 2-3. The Hotel has no employees of its own and is a separate corporation from Principle Hotels. Id. ¶ 3.
On February 22, 2008 Principle Hotels hired Plaintiff as a security guard at the Hotel. Doc. No. 32-6, Yoshida Decl. ¶ 2. Around this time, Plaintiff received Principle Hotel's employee handbook. See Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 170:17-22. The employee handbook explains certain rules, the violation of which will result in discipline up to and including discharge. See id. at Pl.'s Depo. Ex. 10. These rules prohibit, among other things:
Id. In addition to these rules, Plaintiff, as a security guard, was held to higher performance expectations than other employees, including that he handle conflicts with coworkers in a non-threatening manner and not instigate unnecessary confrontations with his coworkers. Doc. No. 32-6, Yoshida Decl. ¶ 21; see also Doc. No. 32-23, Defs.' Ex. R (describing security guard position).
During Plaintiff's employment, there were two incidents between Plaintiff and Mayoral, a Hotel valet. In the first incident, in 2006, Plaintiff was working as a bellman and assisted a Caucasian family with their luggage to their vehicle, where Mayoral was working. The family failed to tip Mayoral and after they drove off, Mayoral yelled, "F___ing white Americans, because I'm a f___ing Filipino, they're not going to tip me, prejudiced f___ing Americans." Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 54:6-55:19. The next day, Mayoral asked Plaintiff to forget about the incident, but also apparently reported some alleged wrongdoing by Plaintiff to the night manager. Id. at 56:18-57:17. When the night manager spoke with Plaintiff about his alleged wrongdoing, Plaintiff reported the incident with Mayoral. Id. After this incident, Plaintiff stopped talking to and avoided Mayoral. Id. at 55:24-56:6.
Plaintiff and Mayoral were involved in a second incident on August 31, 2008. According to Plaintiff, in the early morning, he followed a vehicle into the garage to inform the driver about the Hotel's valet procedures. See Doc. No. 32-5, Defs.' Ex. A, Pl.'s Depo. at Ex. 8. Upon reaching the vehicle, Plaintiff realized the driver was
Just prior to 6:00 a.m., a Hotel employee relayed to Plaintiff a message from Mayoral that he was back at the Hotel to "kick [Plaintiff's] f___ing faggot ass." Id. at 76:12-77:5. Plaintiff again called Tsui to intervene and ask Mayoral to leave. Id. at 76:23-77:5. At 6:00 a.m., Plaintiff punched out of work, saw Mayoral waiting for him, and proceeded to his truck. Id. at 78:2-12. While Plaintiff started his truck, Mayoral confronted Plaintiff, yelling slurs and trying to fight Plaintiff. Id. at 78:12-20. Plaintiff refused to fight and drove away in his truck. Id. at 78:21-79:2; Doc. No. 32-5, Defs.' Ex. A at Pl.'s Depo. Ex. 8.
On September 1, 2009, General Manager Sheldon Yoshida ("Yoshida") learned of the incident and instructed Tsui to gather information from Plaintiff, Mayoral, and any witnesses. See Doc. No. 32-7, Defs.' Ex. B at 1. Plaintiff described the incident in a written statement, Defs.' Ex. A at Pl.'s Depo. Ex. 8, but did not complain to anyone in management about any alleged sexual harassment. See Doc. No. 32-3, Defs.' Ex. A at 135:3-7. After reviewing the witness statements and the video footage from the garage to the lobby, Yoshida concluded there was no conclusive evidence showing who was responsible for the argument. Doc. No. 32-7, Defs.' Ex. B at 2; Doc. No. 32-6, Yoshida Decl. ¶ 5. Mayoral provided a very different version of events than Plaintiff, see Doc. No. 32-7, Defs.' Ex. B at Mayoral Statement, and other witness statements did not fully corroborate Plaintiff's version of events. Id. at Andrew Alce Statement, Kahukina Pearce Statement, Rey Gascon Statement, "Kino" Statement. Yoshida therefore decided to write up both Plaintiff and Mayoral for arguing on Hotel property and warn them that if another incident occurs they would be terminated. Doc. No. 32-6, Yoshida Decl. ¶ 5.
On September 8, 2008, Mayoral received his written warning, including a warning that he would be terminated "if this happens again." See id. ¶ 6; Doc. No. 32-11, Defs.' Ex. F. Yoshida is not aware of any complaints about Mayoral other than from Plaintiff, and Yoshida has received no complaints about Mayoral since the August 31, 2008 incident. Doc. No. 32-6, Yoshida Decl. ¶ 6.
On September 9, 2008, Yoshida and Tsui met with Plaintiff to discuss the August 31, 2008 incident, as well as the fact that Yoshida had received reports about Plaintiff confronting other employees. Id. ¶ 7; Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 82:8-17. Yoshida told Plaintiff that he was being charged with fighting and that another violation would result in termination. See Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 83:2-7. Yoshida further advised Plaintiff that if he has a problem with an employee, he should bring it up with management rather than confront the employee himself. Doc. No. 32-6, Yoshida Decl. ¶ 7; see also Doc. No. 32-12, Defs.' Ex. G. Plaintiff became upset about Yoshida's decision and explained that the August 31, 2008 incident had caused him stress and that he was afraid to go to work. Doc. No.
Around the time of this meeting with Plaintiff, Yoshida was notified of at least three other incidents involving Plaintiff. On September 1, 2008, Hector Torres, a server, reported that Plaintiff confronted him about Torres' performance as a server, yelling at him and asking him if he "wanted to start something." Doc. No. 32-6, Yoshida Decl. ¶ 4; see also Doc. No. 32-9, Defs.' Ex. D, Doc. No. 32-13, Defs.' Ex. H. Yoshida also learned of two alleged altercations Plaintiff had with desk clerk William Finley. In the first, on August 24, 2008, Finley allegedly asked Plaintiff to fill out an incident report that the towel dispenser in the men's lobby restroom was broken. In response, Plaintiff allegedly yelled and cursed at Finley while a customer was present, telling Finley, "Who do you think you[] are?! You['re] nothing to me!! . . . Who the fuck do you think you are?!" See Doc. No. 32-8, Defs.' Ex. C at 1; see also Doc. No. 32-13, Defs.' Ex. H. In the second incident, on September 7, 2008, Plaintiff again allegedly yelled at Finley, calling him an idiot and asserting that he should not work at the Hotel. See Doc. No. 32-8, Defs.' Ex. C at 2; see also Doc. No. 32-13, Defs.' Ex. H; Doc. No. 32-14, Defs.' Ex. I (listing incidents involving Plaintiff).
On September 10, 2008, Plaintiff came to the Hotel to meet with police and give a statement regarding charges he was filing against Mayoral. See Doc. No. 32-13, Defs.' Ex. H. Yoshida met Plaintiff at the Hotel lobby and told Plaintiff that he would have to meet with police in a conference room as opposed to in the lobby. Doc. No. 32-6, Yoshida Decl. ¶ 9. When Plaintiff refused, Yoshida told him that if Plaintiff did not comply, Plaintiff would be trespassed from the property. Id.; see also Doc. No. 32-13, Defs.' Ex. H. Plaintiff asserts that in response to Plaintiff's question of, "why don't you like me?," Yoshida responded, "How many white people do you see on my staff?" Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 192:16-193:21; Doc. No. 32-4, Pl.'s Depo. Ex. 25 at 13-14.
On September 19, 2009, Plaintiff resumed work at the Hotel and met with Yoshida, Tsui, and Controller Pili Ane to discuss terms of Plaintiff keeping his employment and receive his written warning. Doc. No. 32-6, Yoshida Decl. ¶ 10; see also Doc. No. 32-14, Defs.' Ex. I. During this meeting, Plaintiff was advised of the other incident reports and that the Hotel has a zero tolerance for violence. See Doc. No. 32-6, Yoshida Decl. ¶ 11; Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 93:16-22; Doc. No. 32-14, Defs.' Ex. I.
Despite this meeting and warning, Yoshida received several incident reports regarding Plaintiff in the subsequent days. On September 20, 2008, Yoshida received a report that an employee, Andrew Alce, received threatening text messages from Plaintiff. On September 21, 2008, Yoshida met with Alce, who showed Yoshida the text messages. Doc. No. 32-6, Yoshida Decl. ¶ 11. The messages include statements such as "Next time he may pull out a pistol an shoots! All of us." and "U turned UR back on me CU soon! Expect a paper from my friend in blue. I have trumped UR Uncles attorneys!" See Doc. No. 32-15, Defs.' Ex. J.
On September 30, 2008, server Torres reported to Yoshida that Plaintiff had taunted him by calling him Plaintiff's "hero," and that Plaintiff confronted Torres about the fact that he did not have a parking sticker on his car such that Plaintiff may put a boot on it. Doc. No. 32-6, Yoshida Decl. ¶ 12; Doc. No. 32-16, Defs.' Ex. K. Yoshida also received a report from
On September 30, 2008 and October 2, 2008, Yoshida received voice messages from Plaintiff of a toilet flushing. Doc. No. 32-6, Yoshida Decl. ¶ 16. Plaintiff admits that he may have left these messages because at least once, he tried to call Yoshida while using the restroom. Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 119:22-120:16.
On October 2, 2008, Yoshida received a report from Tsui, who had attempted to schedule a meeting with Plaintiff to discuss the most recent incident with Torres. Doc. No. 32-6, Yoshida Decl. ¶ 14; Doc. No. 32-18, Defs.' Ex. M. Plaintiff allegedly told Tsui that Yoshida "better not fire [Plaintiff] because if he does he is one dumb motherfucker: and if this motherfucker does he's gone burn." Doc. No. 32-18, Defs.' Ex. M. On this same day, bartender Brenda Betcher reported that on September 29, 2008, Plaintiff was in the barroom and stated loudly that a customer he dealt with "should just pick-up a box of wine and stay home and drink himself to death." Doc. No. 32-19, Defs.' Ex. N at 1; see also Doc. No. 32-6, Yoshida Decl. ¶ 15; Doc. No. 32-19, Defs.' Ex. N at 2 (relaying that a guest complained to bartender Rita Swetz about Plaintiff's remarks).
Yoshida and Ane reviewed the incident reports received since Plaintiff was given a written warning on September 19, 2008, and jointly reached the preliminary conclusion to terminate Plaintiff's employment. Doc. No. 32-6, Yoshida Decl. ¶ 17. After Plaintiff refused to meet in person, they had a telephonic conference on October 3, 2008, and Plaintiff was terminated effective that same day. Doc. No. 32-6, Yoshida Decl. ¶¶ 18-19.
As of March 9, 2010, Plaintiff remains unemployed. Doc. No. 32-3, Defs.' Ex. A, at Pl.'s Depo. 16:8-14. Since being terminated from the Hotel, Plaintiff has not attended any job interviews, filled out any employment applications, sent any resumes to potential employers, contacted any employment agencies, or used the internet to search for jobs. Id. at 16:15-20, 17:4-6, 20-14-20. Plaintiff did, however, call three employers a week from October 2008 through October 2009, and looked in newspapers once a week for positions. Id. at 17:7-25, 19:15-20.
On July 14, 2009, Plaintiff filed his Complaint in the first circuit court of the state of Hawai`i, and the Hotel subsequently removed the action to this court on August 19, 2010. Plaintiff's Amended Complaint alleges against Hotel Defendants claims for violation of Title VII and Hawai`i Revised Statutes ("HRS") Ch. 378 based on discrimination and sexual harassment (Counts I and II), wrongful termination in violation of public policy (Count III), and vicarious liability (Count V), and against all Defendants claims for negligence (Count IV); negligent infliction of emotional distress (NIED) and intentional infliction of emotional distress (IIED) (Count VI),
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(c). Rule 56(c) 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(c) 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, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) (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 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, 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; 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." (citations omitted)).
Defendants argue that summary judgment should be granted on each of Plaintiff's claims for various reasons.
Counts I and II of the Amended Complaint allege violations of Title VII and Hawai`i State anti-discrimination laws based on discrimination and sexual harassment.
Hotel Defendants argue that summary judgment should be granted on Plaintiff's discrimination claim because, among other reasons, Plaintiff has failed to establish a prima facie case of discrimination. The court first outlines the legal framework for Title VII claims, and then addresses Hotel Defendants' argument.
McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), provides a "useful tool at the summary judgment stage" in addressing Title VII claims. See McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122 (9th Cir.2004). Under this framework, Plaintiff has the initial burden to establish a prima facie case of discrimination. E.E.O.C. v. Boeing Co., 577 F.3d 1044, 1049 (9th Cir.2009) (citation and quotation omitted). "The requisite degree of proof necessary to establish a prima facie case for Title VII . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Cordova v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir.1997) (citation omitted).
After a plaintiff establishes a prima facie showing of discrimination, the burden under the McDonnell Douglas framework shifts to a defendant to put forward a legitimate, non-discriminatory reason for its actions. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. A defendant's burden to articulate some legitimate, nondiscriminatory reason for the challenged action is merely a burden of production, not persuasion. Chuang v. Univ. of Cal. Davis Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir.2000). If a defendant puts forth a legitimate, nondiscriminatory reason, the burden shifts back to the plaintiff to show that the given reason is merely pretext for a discriminatory motive. Boeing Co., 577 F.3d at 1049 (citation and quotation omitted).
Despite this "useful tool" of the McDonnell Douglas framework, there is nothing that "compels the parties to invoke the McDonnell Douglas presumption." McGinest, 360 F.3d at 1122. "When responding to a summary judgment motion. . . [the plaintiff] may proceed by using the McDonnell Douglas framework, or alternatively, may simply produce direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated [the employer]." Metoyer v.
Hotel Defendants rely solely on the McDonnell Douglas framework in their Motions for Summary Judgment. In response, Plaintiff does not address the McDonnell Douglas framework, but instead presents evidence raising the inference that Yoshida ultimately terminated Plaintiff out of racial animus. Doc. No. 52 at 5. Specifically, on September 10, 2008— one day after Plaintiff was warned that another fight would result in his termination, but before he was terminated on October 3, 2008—Yoshida allegedly responded to Plaintiff's question of, "why don't you like me?" by stating, "How many white people do you see on my staff?" Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 192:16-193:21; Doc. No. 32-5, Pl.'s Depo. Ex. 25 at 13-14.
This evidence is sufficient to carry Plaintiff's burden of presenting direct or circumstantial evidence demonstrating that a discriminatory reason more likely than not motivated Yoshida. See Metoyer, 504 F.3d at 931. Viewed in the light most favorable to Plaintiff, Yoshida's response—stating without so many words that he favors non-Caucasians and does not hire and/or does not retain Caucasians on his staff—is a discriminatory statement providing evidence that Yoshida did, in fact, harbor animus towards Caucasian employees, and thus treated Caucasian employees less favorably than non-Caucasian employees. This evidence is sufficient to allow a reasonable jury to find that discrimination more than likely motivated Yoshida in putting Plaintiff on probation and ultimately terminating his employment. Specifically, a jury could find that Yoshida took these actions against Plaintiff not because of the incidents Plaintiff had with the other employees, but because of Plaintiff's race. See also Davis v. Team Elec. Co., 520 F.3d 1080, 1092 n. 7 (9th Cir.2008) ("`[A] single discriminatory comment by a plaintiff's supervisor or decisionmaker is sufficient to preclude summary judgment for the employer.'" (quoting Dominguez-Curry v. Nev. Transp. Dep't, 424 F.3d 1027, 1039 (9th Cir.2005))); Metoyer, 504 F.3d at 937 (finding that summary judgment was inappropriate where the plaintiff "presented direct evidence of discrimination in the form of several remarks by members of senior management suggesting the existence of racial bias").
In opposition, Hotel Defendants argue that Yoshida's statement constitutes a stray remark that is insufficient to establish pretext. See Merrick v. Farmers Ins. Group, 892 F.2d 1434, 1438-39 (9th Cir. 1990) (finding that a supervisor's statement that another candidate was "a bright, intelligent, knowledgeable young man" was a stray remark and, as such, it was insufficient to establish pretext); see also Nesbit v. Pepsico, Inc., 994 F.2d 703, 705 (9th Cir.1993) (finding that the corporate officer's remark that "we don't necessarily like grey hair" was "more than [a] `stray remark'" but at best weak circumstantial evidence). Hotel Defendants argue that Yoshida's statement does not raise a genuine issue of material fact because it occurred three weeks prior to Plaintiff's termination, did not occur in context of discussions regarding termination, and is ambiguous. See Doc. No. 31-1, at 21.
The court disagrees—viewed in a light most favorable to Plaintiff, Yoshida's statement was not "stray" or in the least bit
Because the elements of Title VII and Hawai`i state claims for sexual harassment differ slightly, the court addresses these claims separately.
In establishing a Title VII sexual harassment claim, as a threshold matter, a plaintiff must prove that any harassment took place `because of sex.'" Dominguez-Curry, 424 F.3d at 1034 (citation and quotation signals omitted); see Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir.2001) (stating that a plaintiff is "required to prove that any harassment [that] took place [was] `because of sex.'" (quoting Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79, 118 S.Ct. 998, 140 L.Ed.2d 201 (1998))). Plaintiff must also establish a prima facie case of sexual harassment hostile work environment, by showing that: "(1) [he] was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir.2007) (quoting Fuller v. City of Oakland, 47 F.3d 1522, 1527 (9th Cir.1995)). Finally, "where harassment by a co-worker is alleged, the employer can be held liable only where `its own negligence is a cause of the harassment.'" Swenson v. Potter, 271 F.3d 1184, 1191 (9th Cir.2001) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 759, 118 S.Ct. 2257, 141 L.Ed.2d 633 (1998)).
Hotel Defendants argue, among other things, that summary judgment must be granted on Plaintiff's sexual harassment claim because Plaintiff cannot prove that any harassment by Mayoral took place "because of sex," and in any event, Hotel Defendants had no notice of any sexual harassment by Mayoral. Based on the following, the court agrees.
As to Hotel Defendants' first argument, where the claim involves same-sex sexual harassment, there are several situations in which the harassment may be viewed as discrimination because of sex: (1) when proposals to engage in sexual activity are made by the harasser and there is credible evidence that the harasser is homosexual; (2) when the victim is treated in a sex-specific manner which suggests hostility toward people of the victim's sex; or (3) when men and women are treated differently by the harasser. Oncale, 523 U.S. at 80-81, 118 S.Ct. 998; see also Vickers v. Fairfield Med. Ctr., 453 F.3d 757, 765 (6th Cir.2006); Medina v. Income Support Div., New Mexico, 413 F.3d 1131, 1134 (10th Cir.2005); Bibby v. Phila. Coca Cola Bottling Co., 260 F.3d 257, 262-63 (3d Cir.2001). There may be other examples, but "[w]hatever evidentiary route the plaintiff chooses to follow, he
Plaintiff has not established a genuine issue of material fact that any of these circumstances apply—Plaintiff admits that Mayoral was not proposing to engage in sexual activity with Plaintiff, see Doc. No. 32-3, Defs.' Ex. A at 148:12-14, and there is no evidence suggesting either that Plaintiff was treated in a sex-specific manner suggesting hostility toward men, or that Mayoral treated women differently. Further, Plaintiff does not suggest that the harassment he felt should be viewed as discrimination because of sex based on some other mechanism. Rather, the evidence suggests that Mayoral's conduct was "merely tinged with offensive sexual connotations," see Oncale, 523 U.S. at 81, 118 S.Ct. 998, and that Mayoral simply used this offensive term to provoke a fight and not because of Plaintiff's sex. See Spearman v. Ford Motor Co., 231 F.3d 1080, 1086 (7th Cir.2000) ("[S]exually explicit insults that arise solely from altercations over work-related issues, while certainly unpleasant, do not violate Title VII."); Johnson v. Hondo, 125 F.3d 408, 414 (7th Cir.1997) (affirming summary judgment where the plaintiff's "showing amounts to nothing more than the fact that [co-worker] repeatedly provoked him with a sexually explicit taunt"). Accordingly, Plaintiff has not carried his summary judgment burden of establishing that Mayoral's conduct was harassment "because of sex."
As to Hotel Defendants' second argument, the court finds that even if Mayoral sexually harassed Plaintiff, summary judgment must still be granted on this claim because there is no evidence that Hotel Defendants had any notice of Mayoral's sexually-harassing conduct. "Title VII liability is direct, not derivative: An employer is responsible for its own actions or omissions, not for the co-worker's harassing conduct." Swenson, 271 F.3d at 1191-92. As a result, "an employer cannot be held liable for misconduct of which it is unaware." Id. at 1192. The undisputed evidence presented establishes that Plaintiff did not complain to anyone in management about the alleged sexual harassment by Mayoral before his termination. See Doc. No. 32-3, Defs.' Ex. A at 135:3-7. Rather, Plaintiff complained about the threat of physical violence—specifically, that Mayoral tried to start a fight with Plaintiff, and called Plaintiff a "faggot" because Plaintiff refused to fight, not because of his sexual orientation. See Doc. No. 32-7, Defs.' Ex. B. Accordingly, Plaintiff has failed to raise a genuine issue of material fact that Hotel Defendants should be held liable for Mayoral's alleged sexually harassing conduct.
In sum, the court finds that Plaintiff has failed to carry his prima facie burden of establishing a genuine issue of material fact of a hostile work environment and GRANTS Hotel Defendants' Motion for Summary Judgment on Plaintiff's sexual harassment Title VII claim.
Like Title VII, HRS § 378-2 makes it unlawful to discriminate an employee "because of . . . sex." In order to establish a sexual harassment claim pursuant to HRS § 378-2, a plaintiff must show that:
Nelson v. Univ. of Haw., 97 Haw. 376, 390, 38 P.3d 95, 109 (2001). Further, where the conduct at issue is between employees, "an employer shall be responsible for acts of sexual harassment in the workplace where the employer or its agents or supervisory employees knows or should have known of the conduct and fails to take immediate and appropriate corrective action." Haw. Admin. R. § 12-46-109(d). In evaluating a sexual harassment claim on summary judgment, the court must "look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred." Nelson, 97 Hawai`i at 391, 38 P.3d at 110 (quotations omitted).
Hotel Defendants make the same arguments for summary judgment on this claim as they do for the Title VII claim, and the court finds that they apply with equal force to Plaintiff's claim pursuant to HRS § 378-2.
Regarding Hotel Defendants' argument Plaintiff cannot prove that any harassment by Mayoral took place "because of sex," the court could find no Hawai`i cases discussing when same-sex harassment constitutes discrimination because of sex under HRS § 378-2. While the Hawai`i Supreme Court has recognized a distinction between federal and state law as to the "severe and pervasive" element of a prima facie case, see Arquero v. Hilton Haw. Village LLC, 104 Haw. 423, 91 P.3d 505 (2004), this difference does not suggest that Hawai`i courts would depart from Oncale's interpretation of Title VII's "because of sex" language, especially where HRS § 378-2 includes this same language. Indeed, Hawai`i courts have found federal law instructive in interpreting HRS § 378-2. See, e.g., id. (citing to various federal cases throughout opinion); see also Steinberg v. Hoshijo, 88 Haw. 10, 18, 960 P.2d 1218, 1226 (1998) (citing Oncale and other federal cases favorably in interpreting HRS § 378-2). Accordingly, the court finds that the Hawai`i Supreme Court would apply Oncale's test in evaluating same-sex harassment. Applying this standard, summary judgment in warranted.
As for Hotel Defendants' argument that they had no notice of any sexual harassment by Mayoral, as explained above, there is no evidence that they knew or should have known of Mayoral's potentially sexually harassing conduct. Rather, at most they were aware that Mayoral tried to start a fight with Plaintiff and called Plaintiff a "faggot" when Plaintiff refused to fight. See Doc. No. 32-7, Defs.' Ex. B.
The court therefore GRANTS Hotel Defendants' Motion for Summary Judgment on Plaintiff's sexual harassment claim.
Plaintiff alleges a claim of wrongful termination in violation of public policy based on the same allegations supporting his discrimination and sexual harassment claims. See Am. Compl. ¶¶ 25-27. Hotel Defendants argue that this claim must be dismissed because Title VII and HRS Chapter 378 already provide a sufficient remedy for Plaintiff's allegations.
The Hawai`i Supreme Court recognized the common law tort of wrongful discharge in violation of public policy in Parnar v. Americana Hotels, Inc., 65 Haw. 370, 380, 652 P.2d 625, 631 (1982), holding that an "employer may be held
Ross v. Stouffer Hotel Co., 76 Haw. 454, 464, 879 P.2d 1037, 1047 (1994) (quoting Lapinad v. Pac. Oldsmobile-GMC, Inc., 679 F.Supp. 991, 993 (D.Haw.1988)).
Title VII and HRS § 378 expressly prohibit workplace discrimination because of race and/or sex, and courts have found that as a result, a plaintiff cannot state a Parnar claim based on the same conduct. See, e.g., Lapinad, 679 F.Supp. at 993 ("Thus, even though Title VII is not an exclusive remedy, in that it does not abrogate remedies which already existed, it does not create an additional common law remedy beyond the specific remedies contained in the statute."); Howard v. Daiichiya-Love's Bakery, Inc., 714 F.Supp. 1108, 1113 (D.Haw.1989) (barring public policy claim based upon policy in HRS § 378-2); Lui v. Intercontinental Hotels Corp., 634 F.Supp. 684 (D.Haw. 1986) (barring public policy claim based upon Title VII and HRS § 378-2); Ross, 76 Hawai`i at 464, 879 P.2d at 1047 (affirming circuit court decision "that an independent Parnar claim could not be maintained where the public policy upon which the claim is based is embodied in a statute, i.e., Part I of HRS Chapter 378, that itself provides a sufficient remedy for its violation").
Accordingly, Plaintiff cannot state a claim for wrongful termination in violation of public policy based on the same conduct as his Title VII and HRS § 378 claims because these statutes already provide a sufficient remedy. The court therefore GRANTS Hotel Defendants' Motion for Summary Judgment as to Count III of the Amended Complaint.
The Amended Complaint alleges that at all times, Mayoral was acting in the scope of his employment such that Hotel Defendants are vicariously liable for Mayoral's actions. Am. Compl. ¶ 34. Defendants argue that summary judgment must be granted on this claim because Mayoral's conduct was outside the scope of his employment.
"It is well established that `[a] master is subject to liability for the torts of his [or her] servants committed while acting in the scope of their employment.'" State v. Hoshijo ex rel. White, 102 Haw. 307, 319 76 P.3d 550, 562 (2003) (quoting Restatement (Second) of Agency, § 219(1), at 481). "[T]o recover under the respondeat superior theory, a plaintiff must establish: 1) a negligent act of the employee, in other words, breach of a duty that is the
In determining whether an act was within the employee's scope of employment, Hawai`i courts apply the Restatement (Second) of Agency, § 228, at 504, which provides:
See also Hoshijo, 102 Hawai`i at 319-20, 76 P.3d at 562-63; Wong-Leong, 76 Hawai`i at 438, 879 P.2d at 543 (quoting Henderson v. Prof'l Coatings Corp., 72 Haw. 387, 391-92, 819 P.2d 84, 88 (1991)). "[T]wo key factors must be considered: 1) whether `the enterprise of the employer would have benefitted by the context of the act of the employee but for the unfortunate injury'; and 2) `whether the employer's risks are incident to [the] enterprise.'" Wong-Leong, 76 Hawai`i at 441, 879 P.2d at 547 (quoting Henderson, 72 Haw. at 395, 819 P.2d at 89).
Determining whether an employee is acting within the scope of his employment "is a question of fact to be determined in the light of the evidence of each particular case." Id. (quotations and citation signals omitted). With that said, however, "[w]here the facts are susceptible of but one reasonable conclusion, the question [whether the employee is acting within the scope of his employment] may become a question of law for the court." Id. (quoting Henderson, 72 Haw. at 393, 819 P.2d at 89).
Viewing the evidence in a light most favorable to Plaintiff, there is no genuine issue of material fact that Mayoral was acting on his own behalf during the two incidents with Plaintiff on August 31, 2008. Mayoral was off duty at the time, and there is no evidence suggesting that Mayoral was at the Hotel for purposes relating to his work. Further, there is no evidence suggesting that Mayoral's actions were "actuated, even in part, by a purpose to serve" Hotel Defendants—Hotel Defendants gained no benefit by Mayoral coming to the Hotel during his off hours, much less by him engaging in the intentional conduct of threatening Plaintiff. See Henderson, 72 Haw. at 394, 819 P.2d at 89 (finding that where plaintiff was injured by employee driving employer's vehicle while intoxicated, summary judgment should be granted because the act did not occur during work hours and "[t]here was no intention to act in the employer's interest"); see also Ho-Ching v. City & County of Honolulu, 2009 WL 1227871, at *13 (D.Haw. Apr. 29, 2009) (finding that summary judgment must be granted because sexual harassment by employee "was not the conduct for which he was hired as a police officer and by no means served the interests of Defendant").
In opposition, Plaintiff argues in summary fashion that a fact question exists whether Mayoral was acting within the scope of his employment, but sets forth absolutely no facts to support this argument. Doc. No. 52, at 8-9. The undisputed facts establish, however, that Mayoral was not working at the time of the August 31, 2008 incident, and that his intentional acts were not for the benefit of Hotel
The basis of Plaintiff's IIED claim are the same allegations supporting his discrimination and sexual harassment claims. Am. Compl. ¶¶ 35-37. Defendants argue that summary judgment should be granted on Plaintiff's IIED claim because it is preempted by the Hawai`i Worker's Compensation Statute, HRS § 386-5, and Plaintiff cannot establish the requisite elements for this claim. The court addresses these arguments in turn.
The Hawai`i Workers' Compensation Act provides a remedy to an employee who "suffers personal injury . . . by accident arising out of and in the course of the employment . . . proximately caused by or resulting from the nature of the employment." HRS § 386-3(a). This remedy is exclusive, excluding claims that otherwise encompass this conduct. Specifically, HRS § 386-5 provides:
Section 386-8 "extends [this] immunity from suit to an injured worker's co-employees." Iddings v. Mee-Lee, 82 Haw. 1, 6, 919 P.2d 263, 268 (Haw.1996). Nonetheless, "[a]nother employee of the same employer shall not be relieved of his liability as a third party, if the personal injury is caused by his wilful and wanton misconduct." HRS § 386-8.
While the Hawai`i Workers' Compensation Act bars claims based on negligence, it does not bar claims based on the intentional conduct of an employer or employee because such claims are not based on "accidents" related to employment. See Kahale v. ADT Auto. Servs., Inc., 2 F.Supp.2d 1295, 1302 (D.Haw.1998) (citing Furukawa v. Honolulu Zoological Soc., 85 Haw. 7, 18, 936 P.2d 643 (1997)). Accordingly, the Hawai`i Workers' Compensation Act does not bar Plaintiff's IIED claim,
Defendants assert that there is no outrageous conduct sufficient to support Plaintiff's IIED claim. The court first outlines the framework for IIED claims, and then applies the framework to both Principle Hotels and Mayoral.
"The elements of the tort of intentional infliction of emotional distress are 1) that the act allegedly causing the harm was intentional or reckless, 2) that the act was outrageous, and 3) that the act caused 4) extreme emotional distress to another." Hac v. Univ. of Haw., 102 Haw. 92, 106-07, 73 P.3d 46, 60-61 (2003) (adopting IIED standard from Restatement (Second)
Restatement (Second) of Torts § 46, cmt. d. (1965). "The question whether the actions of the alleged tortfeasor are . . . outrageous is for the court in the first instance, although where reasonable persons may differ on that question it should be left to the jury." Nagata v. Quest Diagnostics Inc., 303 F.Supp.2d 1121, 1127 (D.Haw.2004) (citing Shoppe v. Gucci Am., Inc., 94 Haw. 368, 387, 14 P.3d 1049, 1068 (2000)).
Hawai`i "courts have generally been reluctant to define conduct as outrageous." Id. (citing Shoppe, 94 Hawai`i at 387, 14 P.3d at 1068 (finding that abusive verbal attacks by an employer directed at an employee did not rise to the level of outrageous conduct as a matter of law)); Keiter v. Penn Mut. Ins. Co., 900 F.Supp. 1339, 1348 (D.Haw.1995) (finding that the defendant's conduct which resulted in a significant increase in the premium payment on plaintiff's life insurance policy was not outrageous conduct as a matter of law); Lapinad, 679 F.Supp. at 996 (stating that an employer must have engaged in conduct beyond merely firing an employee for unfair reasons in order for the conduct to possibly be considered outrageous).
An IIED claim cannot be sustained by "threats, annoyances, petty oppressions, or other trivialities." Young v. Allstate Ins. Co., 119 Haw. 403, 425, 198 P.3d 666, 688 (2008) (quoting Restatement (Second) of Torts § 46 cmt. d); see also Bragalone v. Kona Coast Resort Joint Venture, 866 F.Supp. 1285, 1294 (D.Haw.1994). Indeed, a plaintiff "must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind." Restatement (Second) of Torts § 46 cmt. d. With that said, however, "sexually harassing behavior, racial slurs, and accusations of criminal conduct could all possibly be considered outrageous conduct," see Nagata, 303 F.Supp.2d at 1128 (citing Lapinad, 679 F.Supp. at 996), and conduct that does not fit into any of these categories may still raise a question of fact. Cf. id. (determining that defendant's delay in disclosing error in drug test could be considered outrageous).
Construing the facts in the light most favorable to Plaintiff, the court finds that Plaintiff has raised a genuine issue of material fact that Hotel Defendants' conduct was outrageous. As described above, Plaintiff alleges that on September 10, 2008, Yoshida responded to Plaintiff's question of, "why don't you like me?," by stating, "How many white people do you see on my staff?" Doc. No. 32-3, Defs.' Ex. A at Pl.'s Depo. 192:16-193:21. The court finds that reasonable persons may differ as to whether these acts are outrageous. See Nagata, 303 F.Supp.2d at 1128; cf. Lapinad, 679 F.Supp. at 996 (stating that an employer must have engaged in conduct beyond merely firing an
The court therefore DENIES Hotel Defendants' Motion for Summary Judgment on Plaintiff's IIED claim.
Construing the facts in the light most favorable to Plaintiff, the court finds that Plaintiff has raised a genuine issue of material fact that Mayoral's conduct was outrageous.
Specifically, the evidence presented establishes that on August 31, 2008, Plaintiff approached Mayoral's vehicle on the belief that it was a guest vehicle, and then tried to walk away when he realized it was Mayoral. See Doc. No. 32-5, Defs.' Ex. A, Pl.'s Depo. at Ex. 8. Mayoral, completely unprovoked, jumped out of the vehicle, confronted Plaintiff, and tried to start a fight. Plaintiff walked away from Mayoral toward the Hotel lobby, and Mayoral followed the entire distance, pushing on Plaintiff and calling him a "f___ing ahole faggot." Id.; Doc. No. 32-3, Pl.'s Depo. at 66:3-4, 64:24-65:9. This altercation— which lasted ten to fifteen minutes— stopped only after a couple of customers at the bar stepped in and confronted Mayoral. Doc. No. 32-3, Pl.'s Depo. at 66:3-13.
The court can infer that Mayoral knew that Plaintiff did not want to fight—Plaintiff tried to get away from Mayoral, and called Tsui to get Mayoral to leave while Mayoral was pushing and following him. Id. at 69:5-11. Mayoral nonetheless came back several hours later to, as Mayoral put it, "kick [Plaintiff's] f___ing faggot ass." Id. at 76:12-77:5. Mayoral confronted Plaintiff at his car, again yelling slurs and trying to fight Plaintiff. Id. at 78:12-20. Plaintiff refused to fight and drove away in his truck. Id. at 78:21-79:2; see also Doc. No. 32-5, Pl.'s Depo. Ex. 8.
The court finds that reasonable persons may differ as to whether these acts are outrageous. Mayoral's conduct went far beyond mere "threats, annoyances, petty oppressions, or other trivialities." See Restatement (Second) of Torts § 46 cmt. d. Instead, as relayed by Plaintiff, Mayoral attempted to start a fight with Plaintiff, invoking racial and sexually pejorative slurs. Plaintiff, while being pushed by Mayoral, was trying to call Tsui for help. Mayoral then returned some hours later, and again used racial and sexually pejorative slurs and attempted to fight. Mayoral had no apparent reason to threaten Plaintiff with physical violence, had every intention of beating Plaintiff, and knew that Plaintiff did not want to confront Mayoral, much less be around him. Reasonable people could differ as to whether this conduct is outrageous. See Lujano v. Town of Cicero, 691 F.Supp.2d 873, 885 (N.D.Ill. 2010) (listing relevant factors to consider including "(1) the power and influence wielded by the harassing party; (2) the likelihood that the threatened action could be carried out; (3) the legitimate reasons one might have for making the offensive statement; and (4) the defendant's awareness of the plaintiff's susceptibility to emotional stress"); see also Elmowitz v. Exec. Towers at Lido, LLC, 571 F.Supp.2d 370, 379 (E.D.N.Y.2008) ("In the cases that involved some kind of physical altercation, as is alleged here, the courts seem to focus on the extent of the assault, whether it was a one time occurrence or a pattern of behavior, and whether the plaintiff felt she was in imminent harm.").
In opposition, Mayoral argues that there must be a pattern of verbal or physical threats to constitute outrageous conduct. See Doc. No. 33-1, at 8-9. The court rejects a bright-line rule; rather, outrageous conduct must be determined based on the facts and circumstances of the entire case. See Young, 119 Hawai`i at 426, 198 P.3d at 688 (stating that "this tort provides no clear definition of the prohibited
Because Plaintiff's IIED claim survives summary judgment, the court denies Defendants' derivative request for summary judgment of Plaintiff's incidental claim for punitive damages. See Kang v. Harrington, 59 Haw. 652, 660, 587 P.2d 285, 291 (1978) ("An award of punitive damages is purely incidental to the cause of action."); see also Lee v. Aiu, 85 Haw. 19, 34, 936 P.2d 655, 670 (1997) (holding record contained substantial evidence that defendants engaged in "aggravated or outrageous misconduct" required to impose punitive damages where IIED claim also stood). Thus, the court DENIES Defendants' Motion for Summary Judgment on Count VII of the Amended Complaint.
Defendants argue that summary judgment should be granted on Plaintiff's request for back pay because Plaintiff failed to mitigate these damages.
While a plaintiff has a duty to use reasonable diligence in finding other suitable employment, the employer has the burden of proving the plaintiff's failure to mitigate damages. See Odima v. Westin Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir.1995); see also Sangster v. United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980). The employer must prove "that, based on undisputed facts in the record, during the time in question there were substantially equivalent jobs available, which [the plaintiff] could have obtained, and that [the plaintiff] failed to use reasonable diligence in seeking one." Odima, 53 F.3d at 1497 (quoting EEOC v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir.1994)); see also Sias v. City Demonstration Agency, 588 F.2d 692, 696 (9th Cir.1978) ("To satisfy this burden, defendant must establish (1) that the damage suffered by plaintiff could have been avoided, i.e. that there were suitable positions available which plaintiff could have discovered and for which he was qualified; and (2) that plaintiff failed to use reasonable care and diligence in seeking such a position.").
"Substantially equivalent employment is that employment which affords virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as the position from which the Title VII claimant has been discriminatorily terminated." Sellers v. Delgado Coll., 902 F.2d 1189, 1193 (5th Cir.1990); see also Booker v. Taylor Milk Co., 64 F.3d 860, 866 (3d Cir.1995); Rasimas v. Mich. Dep't of Mental Health, 714 F.2d 614, 624 (6th Cir.1983); Cassella v. Mineral Park, Inc., 2010 WL 454992, at *5 (D.Ariz. Feb. 9, 2010). A "claimant need not go into another line of work, accept a demotion, or take a demeaning position," to mitigate damages. Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231-32, 102 S.Ct. 3057, 73 L.Ed.2d 721 (1982); see also Standard Materials, Inc. v. NLRB, 862 F.2d 1188,
To show that there were substantially equivalent positions available after Plaintiff was terminated, Defendants point to classified advertisements contained in the Honolulu Advertiser seeking individuals for security guard, wait staff, and valet positions. See Doc. No. 58-7, Allen Decl. Exs. A-1-A-14. These advertisements do not carry Defendants' burden. Even if all of these positions are "substantially equivalent"—which the court need not decide— Defendants have failed to explain how the positions in these advertisements have virtually identical promotional opportunities, compensation, job responsibilities, working conditions, and status as Plaintiff's position at the Hotel. Cassella, 2010 WL 454992 at *6; see Holocheck v. Luzerne County Head Start, Inc., 2007 WL 954308, at *13 (M.D.Pa. Mar. 28, 2007) (finding that a printout of child care centers that employ individuals with the plaintiff's credentials was insufficient to carry the employer's burden); see also Finley v. Manor Care of Kingsford, MI, L.L.C., 2008 WL 4743715, at *13 (W.D.Mich. Oct. 29, 2008).
The court therefore DENIES Defendants' Motion for Summary Judgment as to Plaintiff's request for back pay.
For the reasons stated above, the court GRANTS in part and DENIES in part Defendants' three Motions for Summary Judgment. Plaintiff's claim against Principle Hotels and the Hotel for discrimination in violation of Title VII, and IIED claim against all Defendants remain.
IT IS SO ORDERED.
