ALAN C. KAY, SR., District Judge.
On May 21, 2009, Ismail Shahata ("Plaintiff") filed a complaint against W Steak Waikiki, LLC ("Defendant") alleging five claims (1) Promissory Estoppel, (2) Infliction of Emotional Distress, (3) Invasion of Privacy, (4) Wrongful Discharge, and (5) Breach of Contract.
By way of a document titled "Attorney Substitution" dated October 27, 2009, and received by the Court on October 29, 2009, Plaintiff informed the Court that he had relieved his attorney, Mr. Geshell. On November 2, 2009, Mr. Geshell filed a Motion to Withdraw as Attorney for Plaintiff, which the Court granted on November 18, 2009. Magistrate Judge Kevin S.C. Chang found that Plaintiff discharged Mr. Geshell without fault in his Special Master Report Recommending that the Motion of R. Steven Geshell for an Award of Attorney's Fees, Costs and Lien for Representing Plaintiff be Granted in Part, and Denied in Part.
On March 31, 2010, Defendant filed a Motion for Summary Judgment ("Motion"). Doc. No. 61. At the same time, Defendant filed a Separate and Concise Statement of Facts in Support of the Motion for Summary Judgment ("Motion CSF"). Doc. No. 62. Attached to the Motion CSF are declarations of Shannon H. Sagum ("Sagum Decl."), Amr Ibrahim ("Ibrahim Decl."), and Jeanne Kawamoto ("Kawamoto Decl.").
On May 7, 2010, Magistrate Judge Chang held a settlement conference in this case. At this settlement conference, Plaintiff for the first time made an oral request for a continuance of the hearing on Defendant's Motion scheduled for June 14, 2010, at 10 a.m. Defendant's counsel objected to any continuance. In response, Magistrate Judge Chang indicated that any request for a continuance with respect to Defendant's Motion should be directed to the undersigned United State District Judge presiding over Defendant's Motion.
On May 12, 2010, this Court issued a Judge's Inclination indicating that the "Court [was] inclined to reject Plaintiff's oral telephonic request for a continuance; however, Plaintiff may make an appropriate motion for a continuance should he nevertheless wish to do so." Doc. No. 70.
On May 17, 2010, Plaintiff filed a motion for a continuance and "to enforce litigant rights." Doc. No. 71. On May 18, 2010, this Court denied Plaintiff's Motion for a Continuance and referred Plaintiff's Motion to Enforce Litigant Rights to Magistrate Judge Chang. Doc. No. 73. On May 19, 2010, Magistrate Judge Chang denied Plaintiff's Motion to Enforce Litigant Rights. Doc. No. 74.
On May 28, 2010, Plaintiff filed a "Separate and Concise Statement of Facts in Support of Objection to Summary Judgment" ("Opposition").
On June 8, 2010, Defendant filed a Reply Memorandum in Support of Its Motion for Summary Judgment filed on March 31, 2010 ("Reply"). Doc. No. 94. Attached to the Reply is an additional declaration of Shannon Sagum ("Sagum Reply Decl.") and Exhibits A & B. Also on June 8, 2010, Defendant filed an Errata to Exhibits re: Defendant W Steak Waikiki, LLC's Reply Memorandum in Support of Its Motion for Summary Judgment filed on March 31, 2010; Declaration of Shannon H. Sagum; Exhibits A-C ("Reply Errata").
A hearing was held on Defendant's Motion for Summary Judgment on June 14, 2010.
Defendant owns and operates Wolfgang's Steakhouse by Wolfgang Zweiner in Waikiki ("W Steakhouse Waikiki"), which is located in the Royal Hawaiian Center in Waikiki. Motion CSF ¶ 1 (citing Kawamoto Decl. ¶ 2, Ibrahim Decl. ¶ 2). There are three other restaurants known as Wolfgang's Steakhouse by Wolfgang Zweiner in the United States. Id. ¶ 2 (citing Kawamoto Decl. ¶ 3-6, Ibrahim Decl. ¶ 3). These additional restaurants are affiliated with W Steak Waikiki but are not owned by Defendant. Id. The W Steakhouse restaurants are known for being upscale steakhouses intended to provide diners with a fine-dining experience. Id. ¶ 3 (citing Kawamoto Decl. ¶ 7, Ibrahim Decl. ¶ 5). Amiro Cruz is the corporate executive chef for the W Steakhouse Restaurants. Id. ¶ 4 (citing Kawamoto Decl. ¶ 8, Ibrahim Decl. ¶ 5).
Plaintiff emigrated to the United States from Egypt in 1984. Since moving to the United States, Plaintiff has worked primarily in the restaurant/food-service industry, particularly as a cook. Motion CSF ¶ 5 (citing Ex. A at 13:10-14:6, 24:6-50:5).
Although the parties disagree about who contacted whom regarding the executive chef position at W Steakhouse Waikiki, they ultimately agreed that Plaintiff would assume that position at an annual base salary of $60,000 and signed a contract to that effect. See Motion at 4 n. 1, Compl. Ex. A, Ibrahim Declaration ¶¶ 9-10. The parties also agreed that Defendant would pay up to $5,000 in moving expenses, the cost of a plane ticket to Hawai`i for Plaintiff, his wife, and one child, and that Defendant would provide temporary housing for Plaintiff for one month. Id.
In early January 2009, Plaintiff traveled to New York where he worked at W Steakhouse Tribeca to prepare for his employment at W Steakhouse Waikiki. Ibrahim Decl. ¶ 11; Ex. A at 56:21-59:9. On January 25, 2009, Plaintiff arrived in Hawai`i by way of an airline ticket purchased and paid for by Defendant. Motion CSF Ex. A at 129:25-131:1.
The remainder of the facts surrounding the circumstances under which Plaintiff ceased working for Defendant are disputed as discussed herein.
After leaving W Steakhouse Waikiki, Plaintiff moved back to Virginia, where he has worked in a number of restaurants. Motion CSF Ex. A at 24:6-26:20.
The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Summary judgment is therefore appropriate if the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c).
"A fact is `material' when, under the governing substantive law, it could affect the outcome of the case. A `genuine issue' of material fact arises if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir.2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)) (internal citation omitted).
Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes
Before addressing the merits of Defendant's Motion, the Court will address Plaintiff's apparent request for a Rule 56(f) continuance. Plaintiff asserts that "Plaintiff is not a lawyer and due to the short of time [sic] the plaintiff is rushing his time to answer and the discovery has not been completed by the defendants." Opposition at 4, Reply at 5-6. Plaintiff also appears to argue that an audio recording and other documents are necessary for him to oppose summary judgment. See Opposition at 4, see also Reply at 7-10.
First, the Court has already rejected Plaintiff's request for a continuance of the hearing on Defendant's Motion. See Doc. Nos. 70, 73. Second, to the extent that Plaintiff seeks to make a Fed.R.Civ.P. 56(f) ("Rule 56(f)") argument that he needs additional time for discovery before opposing summary judgment, the Court finds that Plaintiff has not adequately shown that he is unable to present facts necessary to justify his opposition and, thus, the Court rejects any request for a continuance based upon Rule 56(f).
Fed.R.Civ.P. 56(f) provides, "if a party opposing the motion shows by affidavit that, for specified reasons, it cannot present facts essential to justify its opposition, the court may: (1) deny the motion; (2) order a continuance to enable affidavits to be obtained, depositions to be taken, or other discovery to be undertaken; or issue any other just order." Fed.R.Civ.P. 56(f).
A party requesting a continuance pursuant to Rule 56(f) must identify by affidavit the specific facts that further discovery would reveal, and explain why those facts would preclude summary judgment. Tatum v. City & County of S.F., 441 F.3d 1090, 1100 (9th Cir.2006). "Under Rule 56(f), an opposing party must make clear what information is sought and how it would preclude summary judgment." Garrett v. City & County of S.F., 818 F.2d 1515, 1518 (9th Cir.1987). "Failure to comply with the requirements of Rule 56(f) is a proper ground for denying discovery and proceeding to summary judgment." Brae Transp., Inc. v. Coopers
Plaintiff's request here does not comport with the requirements of Rule 56(f). In his declaration (included within his opposition), Plaintiff claims that "defendants have not completed discovery." Opposition at 4. Plaintiff does not submit an affidavit indicating what facts he seeks to discover and how specifically those facts would prevent summary judgment. Indeed, he only states that the Defendant has not yet completed discovery. Opposition at 4. However, it is the Plaintiff, not the Defendant, who is requesting time for discovery and to oppose summary judgment. Thus, whether the Defendant has finished completing discovery does not affect Plaintiff's request for a continuance.
Plaintiff, however, does point to an audio recording between himself and certain employees of Defendant, which Plaintiff made after his alleged termination and which he claims will contradict the declarations submitted by Defendant in support of its Motion. Opposition at 4. Plaintiff does not specify how this audio recording will contradict the affidavits. Defendant argues that Plaintiff is not entitled to a continuance to obtain the audio recording because the audio recording was produced to Defendant by Plaintiff's former attorney and Plaintiff has had the opportunity to obtain a transcript of his own recording.
Furthermore, despite Plaintiff's insistence that the audio recording is relevant and necessary to preclude summary judgment, Plaintiff has never filed any discovery requesting a copy of the unofficial translation that Defendant has made of the audio recording. Sagum Reply Decl. ¶ 11. Plaintiff's failure to diligently pursue discovery weighs in favor of denying Plaintiff's request for a Rule 56(f) continuance. See Germaine Music v. Universal Songs of Polygram, 130 Fed.Appx. 153, 155 (9th Cir.2005) (citing Byrd v. Guess, 137 F.3d 1126, 1135 (9th Cir.1998)).
Finally, as discussed infra, the Court finds that there are material issues of fact on the breach of contract claim regardless of whether the audio recording is considered, therefore a Rule 56(f) continuance is not necessary.
Plaintiff and Defendant signed a contract relating to Plaintiff's employment at Defendant's restaurant. See Compl. Ex. A; Motion CSF Ex A at Ex. 6. In the format of a letter to Plaintiff, the contract states "W Steak Waikiki, LLC would like to formally offer you the position of Executive Chef. This Position will be located at our Honolulu restaurant." Id. The contract further sets forth:
Id.
Plaintiff alleges that Defendant breached the employment contract between the parties and that Defendant's breach of the contract caused the Plaintiff damages. Compl. ¶¶ 23-26. Plaintiff alleges that "after Plaintiff was in Honolulu about one month and the restaurant was opened, Plaintiff was advised that he was not working out because he was not aggressive enough, so his employment was terminated right before the one-year contract was to start." Compl. ¶ 7. Plaintiff also argues that he is quite capable as an executive chef (Opposition at 10-11) and that his work was "completely satisfactory and excellent according to the owners and customers" (id. at 20).
The contract provides for an annual salary, the contract requires Plaintiff to commit to one year, and the contract provides that after one year, the contract can be "reviewed and extended if both the Company and employee agree." Compl. Ex. A; Motion CSF Ex A at Ex. 6. The contract further provides for a quarterly bonus, which provides additional indication that Plaintiff's employment with Defendant was expected to last for at least some duration.
However, even assuming arguendo that there is a valid contract for a year, Defendant moves for summary judgment on Plaintiff's breach of contract claim arguing that it is a general rule of contract law that a party cannot recover for breach of contract if he fails to comply with the contract himself. Motion at 14 (citing PR Pension Fund v. Nakada, 8 Haw.App. 480, 491, 809 P.2d 1139 (1991)). In support of that argument, Defendant asserts:
The Court rejects this argument. The Court finds that there are material issues of fact regarding (1) whether the contract was for a one-year term or was at-will; (2) whether Plaintiff was in breach of the employment contact; and (3) whether or not the contract was mutually terminated (and/or whether Plaintiff agreed to a position as a line cook at an hourly rate).
Defendant asserts that as executive chef for W Steakhouse Waikiki, Plaintiff was responsible for "hiring, training, scheduling, and taking care of any problems that arose." Motion at 5 (citing Ex. A at 115:5-116:8; Ibrahim Decl. ¶ 15). Additionally, Defendant asserts that "Plaintiff [was] to be responsible for overall management of the kitchen, including making sure the restaurant was stocked with enough food, prepping for the dinner service, running
Attached to its Concise Statement of Facts Defendant submits excerpts of the deposition testimony of Plaintiff, a declaration by Amr Ibrahim, the general manager of W Steak Waikiki, and a declaration by Jeanne Kawamoto, the Human Resources Manager for the Hawai`i region for WDI International, Inc.
Mr. Ibrahim declares:
Ibrahim Decl. ¶ 16. Ms. Kawamoto declares that during Mr. Shahata's employment as executive chef at W Steak Waikiki, she "observed a lack of leadership and initiative on the part of Mr. Shahata which is necessary for someone in his position. On numerous occasions, in response to work-related questions, Mr. Shahata would state `I don't know' or `no one told me.' I felt this was an inappropriate response for someone in such a management position." Kawamoto Decl. ¶ 10. Thus, Defendant argues that Plaintiff was not qualified for the position of executive chef. Defendant further asserts that the contract was mutually terminated and replaced by an agreement that Plaintiff would work as a line cook for $16 per hour, subject to the employee handbook.
In contrast, Plaintiff testified that on one occasion which may have contributed to management's concern about his performance, he had two staff members missing from the line and thus, Plaintiff tried to fill in by cutting tomatoes for salads, which it appears management found inappropriate. See Motion CSF Ex. A at 170:1-171:25. Plaintiff further testified that it was not his fault the line was short staffed. Id. Two people were missing from the line because someone changed the schedule and had given one person off and the other had cut himself. Id.
Opposition 18-19 (alteration "[BJ]" appears in original). Plaintiff further specifically disputes that it was his responsibility to get food out of the kitchen on time. Plaintiff asserts that there was a waiter who had been brought in from New York whose responsibility it was to expedite food service for the tables. Opposition at 7-8.
Plaintiff asserts that he is quite capable as an executive chef (Opposition at 10-11), that his work was "completely satisfactory and excellent according to the owners and customers" (id. at 20) and that the head chef took over many of his duties (id. at 18-19). Finally, Plaintiff does not admit to ever accepting the line cook job. The Court observes that the deposition testimony of Plaintiff that Defendant cites in support of its assertion that "Plaintiff was informed that this position would pay $16 per hour and agreed to the alternate position" (Motion at 7 (citing Ex. A at 192:18-194:19)) does not appear to show Mr. Shahata's alleged agreement to the position as a line cook. Additionally, Plaintiff directly testified that he did not agree to the line cook position in his testimony immediately following the portion cited by Defendant. Defendant's counsel asked Plaintiff "[d]id you ever make any attempts to take the line cook position at W Steak?" and Plaintiff answered "[n]o." Motion CSF Ex. A at 195:17-19.
These conflicting positions demonstrate that Defendant has not established by undisputed facts that it is entitled to summary judgment. At the summary judgment stage, the court may not make credibility assessments or weigh conflicting evidence, therefore, the Court finds that there are questions of fact and summary judgment on Plaintiff's breach of contract claim is not appropriate. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505;
Defendant argues that the Court should dismiss Plaintiff's claim for promissory estoppel because the alleged promises were properly subsumed as the subject of an employment contract between the parties. Motion at 9-12; Reply at 10-11. Defendant further argues that "it is well established that where the parties do not dispute the existence of a contract that covered the alleged promises, summary judgment is appropriate as to a promissory estoppel claim." Motion at 10 (citing inter alia Satellite Tracking of People, LLC v. G4S PLC, No. 3:08-cv-0126, 2009 WL 2983032, *5-6, 2009 U.S. Dist. Lexis 83466, *18-19 (M.D.Tenn. Sept. 14, 2009); Response Acquisition LLC v. United States Steel Corp., No. 2:05-cv-423, 2008 WL 4774817, *7, 2008 U.S. Dist. Lexis 87962, *18-19 (N.D.Ind. Oct. 28, 2008); Moon v. SCP Pool Corp., No 05-70228, 2007 WL 80975, *4, 2007 U.S. Dist. Lexis 710, *12 (E.D.Mich. Jan. 28, 2007)).
Although, none of the cases cited by Defendant are binding precedent upon this Court, Hawai`i law has approved the longstanding principle that equitable remedies are only available when legal remedies are inadequate. See Porter v. Hu, 116 Haw. 42, 55, 169 P.3d 994, 1007 (Haw. App.2007); AAA Hawaii, LLC v. Hawaii Insurance Consultants, Ltd., No. 08-00299 DAE-BMK, 2008 WL 4907976 (D.Haw. Nov. 12, 2008). Thus, when an express contract exists between the parties concerning the same subject matter, equitable remedies are not available. Id. Promissory estoppel is an equitable remedy. See Gonsalves v. Nissan Motor Corporation in Hawai`i, Ltd., 100 Haw. 149, 58 P.3d 1196 (Haw.2002) (explaining that a claim for promissory estoppel may arise as an application of the general principle of equitable estoppel); 3139 Properties, LLC v. First Specialty Ins. Corp., No 06-0619 SOM-LEK, 2007 WL 1701922, *8 n. 1 (D.Haw. June 08, 2007) (observing that promissory estoppel is an equitable claim).
Here, Plaintiff's promissory estoppel claim asserts inter alia that he was offered the position of executive chef (Compl. ¶ 2), he signed a contract under which he was promised a $60,000 per year position, plus a bonus, medical insurance, and $5,000 to move his belongings and family to Honolulu (Compl. ¶ 5), and that Defendant "promised Plaintiff that he would be paid under the terms and conditions of his employment contract" (Compl. ¶ 8). These allegations all appear to be based upon the employment contract, under which both Plaintiff and Defendant commenced performance. However, because the Court has found that there are material issues of fact regarding whether the employment contract is for a one-year term, the Court likewise finds that there are issues of material fact regarding Plaintiff's promissory estoppel claim. In the event that the employment contract is not found to state a one-year term, the contract or other statements by Defendant may be sufficient for Plaintiff to establish a promissory estoppel claim.
The four elements of promissory estoppel are (1) there must be a promise; (2) the promisor must, at the time he or she made the promise, foresee that the promisee would rely upon the promise
Hawai`i courts have considered promissory estoppel claims in the at-will employment context. See id. In Gonsalves, the Hawai`i Supreme Court explained:
Id. n. 12. The court in Morishige rejected the argument that "the Hawaii Supreme Court has not recognized a cause of action based on promissory estoppel for continuing employment in an `at-will' situation and therefore [Defendants were] entitled to judgment as a matter of law." Morishige, 720 F.Supp. at 835-36. Accordingly, if the elements of promissory estoppel are met, a Plaintiff may recover in an at-will employment context.
The Court rejects Defendant's argument that "[e]ven if Plaintiff is permitted to assert a claim of promissory estoppel, his claim fails because Defendant fulfilled its promise to employ Plaintiff." Motion at 11. The issue is not whether Defendant promised to employ Plaintiff at all but whether Defendant promised to employ Plaintiff for one year. Because the Court finds there are material issues of fact relating to this issue, Defendant's Motion is denied with regard to Plaintiff's promissory estoppel claim.
Plaintiff asserts the "acts of the Defendant and its employees either intentionally and/or negligently inflicted emotional distress upon the Plaintiff." Compl. ¶ 15.
The Hawai`i Supreme Court has determined that
Kaho`ohanohano v. Dep't of Human Serv., 117 Haw. 262, 306-07, 178 P.3d 538, 582-83 (2008) (citing Doe Parents No. 1 v. Dept. of Educ., 100 Haw. 34, 69, 58 P.3d 545, 580 (2002)) (alteration in original) (internal citations omitted). Although the general rule is that there must be a physical injury to someone, the Hawai`i Supreme Court has carved out exceptions to that general rule in certain cases that present "unique circumstances, which provide the requisite assurance that plaintiff's psychological distress is trustworthy and genuine." Doe Parents No. 1, 100 Hawai`i at 69-70, 58 P.3d at 580-81 (explaining "the law as it currently stands in Hawai`i is that an NIED claimant must establish, incident to his or her burden of proving actual injury (i.e., the fourth element of a generic negligence claim), that someone was physically injured by the defendant's conduct, be it the plaintiff himself or herself or someone else.")(internal citations omitted, emphasis in original); see also Kaho`ohanohano, 117 Hawai`i at 308, 178 P.3d at 538 (holding that "to recover for NIED, [plaintiff] was required to establish some predicate injury to property or to another person; his physical presence and witnessing of [that] injury is not required.")
Such an exception was found in Doe Parents No. 1 where the Hawai`i Supreme Court held that, even assuming arguendo that molestation did not constitute the requisite physical injury, where a teacher who was accused of child molestation was reinstated and then molested a child, the child and parents' psychological trauma involved circumstances that guaranteed its genuineness and seriousness such that they had a claim for NIED. Id. The Hawai`i Supreme Court has also found exceptions to the general rule requiring a physical injury to someone where a plaintiff alleged actual exposure to HIV-positive blood and where the mishandling of corpses is involved. Id. (citing John & Jane Roes, 1-100 v. FHP, Inc., 91 Haw. 470, 476-77, 985 P.2d 661, 667-68 (1999); Guth v. Freeland, 96 Haw. 147, 154-55, 28 P.3d 982, 989-90 (2001)). The Court finds that neither of these exceptions are applicable to the facts in this case. Accordingly, Plaintiff must establish a predicate physical injury to someone in order to recover for NIED.
Defendant is entitled to summary judgment on Plaintiff's NIED claim because the evidence submitted by both parties does not show that Plaintiff or anyone else suffered a predicate physical injury. Plaintiff claims that he has back problems, his left leg doesn't move fast and his stomach bothers him. Motion at 19 n. 10; Motion CSF Ex. A at 229:25-231:22. However, Plaintiff did not see a doctor for these ailments, has not established these ailments were caused by Defendant's conduct, and testified that they were preexisting conditions. Id. Accordingly, because Plaintiff has not established any physical injury to himself or another person, the Defendant is entitled to summary judgment on Plaintiff's NIED claim.
Furthermore, even were there a predicate physical injury, Plaintiff has not established any severe mental distress. Plaintiff's allegations describe general concerns for one's financial state that may result from any termination. Motion CSF Ex. A at 231:9-21. He also describes being stressed and feeling nervous, both of which a normal person reasonably constituted could handle. Id. at 222:8-231:22. Thus, the failure to establish severe mental distress also causes Plaintiff's NIED claim to fail.
Second, to the extent Plaintiff's claim for emotional distress arises out of Defendant's alleged breach of the employment contract, such a claim is barred because the parties did not bargain for such damages and the nature of the contract does not clearly indicate that such damages were within the contemplation of the parties. See Motion at 19-20. "[D]amages for emotional distress will rarely, if ever, be recoverable for breaches of an employment contract, where the parties did not bargain for such damages or where the nature of the contract does not clearly indicate that such damages were within the contemplation of the parties." Francis v. Lee Enterprises, Inc., 89 Haw. 234, 242, 971 P.2d 707, 715 (1999).
The Hawai`i Supreme Court has explained, however, that courts may still award damages for emotional distress arising out of a breach of contract in two "exceptional situations." Id. at 240, 971 P.2d at 713. The first situation involves emotional distress accompanied by a bodily injury, although as the court explains, such an action "may nearly always be regarded as one in tort." Id. The Hawai`i Supreme Court cites medical malpractice cases growing out of relationships and duties that originate in contract as an example of this type of case. Id. The second exception involves a contract of a kind such that serious emotional disturbance is a particularly foreseeable result of a breach. Id. For example, a breach of a promise to marry or a contract for the preparation of a body for burial. Id.
Because there is a contract here and it is silent as to damages based upon emotional distress, it does not appear the parties bargained for such damages. Therefore, the general rule that damages for emotional distress are not recoverable is applicable. The Court further finds that neither of the exceptions discussed above apply here. As discussed supra, Plaintiff has not established any physical injury and an employment contract is not a contract such that emotional disturbance is a particularly foreseeable result of a breach. Indeed, the court in Francis noted that "contracts for employment differ materially from the contracts for marriage and burial services [discussed earlier in its opinion], where courts have historically deemed damages for emotional distress to be within the contemplation or expectation of the parties." Id. at 241, 971 P.2d at 714.
Third, the Court finds that Plaintiff's negligent infliction of emotional distress claim is barred by the Workers' Compensation Statute, which is his exclusive remedy as to a claim for negligent infliction of emotional distress. The Hawai`i Workers' Compensation Statute provides that
H.R.S. § 386-5. In Kamaka v. Goodsill Anderson Quinn & Stifel, the Hawai`i Supreme Court interpreted this provision to bar any civil claims for negligent infliction of emotional distress not arising out of sexual harassment or sexual assault. 117 Haw. 92, 109, 176 P.3d 91, 108 (Haw. 2008). An exception to the worker's compensation statute is the "dual persona theory," which provides that "an employer may be regarded as a third party and thus be subject to suit, if the employer's liability to the injured employee derives from a second persona so completely independent from and unrelated to his status as employer that by established standards the law recognizes it as a separate legal person." Id. (citing Barrett v. Rodgers, 408 Mass. 614, 562 N.E.2d 480, 482 (1990)).
The Court finds that the dual persona exception is not applicable here.
In order to prove the tort of intentional infliction of emotion distress under Hawai`i law, Plaintiff must show: (1) the act that caused the harm was intentional or reckless; (2) the act was outrageous; and (3) the act caused extreme emotional distress to another. Young v. Allstate Ins. Co., 119 Haw. 403, 429, 198 P.3d 666, 692 (2008). The Supreme Court of Hawai`i has held that the tort of intentional infliction of emotional distress "requires conduct exceeding all bounds usually tolerated by decent society and which is of a nature especially calculated to cause, and does cause, mental distress of a very serious kind." Hac v. Univ. of Hawai`i, 102 Haw. 92, 106, 73 P.3d 46, 60 (2003) (citing Tibke v. McDougall, 479 N.W.2d 898, 907 (S.D.1992)). An outrageous act is one such that upon reading Plaintiff's complaint "average members of our community might indeed exclaim, `Outrageous.'" See Young, 119 Hawai`i at 429-30, 198 P.3d at 692-93.
In one case in an employment context, the Hawai`i Supreme Court held that even though the plaintiff there claimed conduct involving shouting and abusive behavior by the plaintiff's boss, such remarks were not outrageous or beyond the bounds of all decency. Shoppe v. Gucci Am., 94 Haw. 368, 387, 14 P.3d 1049, 1068 (2000).
The Court finds that Defendant is entitled to summary judgment on Plaintiff's intentional infliction of emotional distress claim for reasons similar to the NIED claim. Plaintiff has not shown any physical injury or severe emotional distress. In addition, Plaintiff has not shown any "outrageous" conduct by the defendant. At worst, Defendant fired him without cause and attributed blame to him for an incident which was not his fault. Even
Plaintiff alleges that "Defendant, by and through its agents and employees, invaded the privacy of the Plaintiff by placing Plaintiff in false light when his employment was terminated." Compl. ¶ 18.
In general there are four theories for a claim for invasion of privacy: (1) unreasonable intrusion upon the seclusion of another; (2) appropriation of another's name or likeness; (3) unreasonable publicity given to the other's private life; and (4) false light. Chapman v. Journal Concepts, Inc., 528 F.Supp.2d 1081, 1099 (D.Haw.2007) (citing the Restatement (Second) of Torts § 652). Under the Restatement (Second) of Torts § 652E, which has been adopted by Hawai`i, the tort of false light is defined as follows:
See Chung v. McCabe Hamilton & Renny Co., Ltd., 109 Haw. 520, 534 n. 18, 128 P.3d 833, 847 (2006).
According to Plaintiff's deposition testimony, his claim for false light invasion of privacy is predicated on his belief that he was blamed for the situation that occurred in the kitchen at W Steakhouse Waikiki the Sunday after it opened. See Motion at 17; Motion CSF Ex. A at 231:23-233:9. However, Plaintiff also testified that he was not aware of anyone else who was told that Plaintiff was to blame for the situation that occurred on the Sunday after the restaurant opened. Motion at 17; Motion CSF Ex. A at 233:10-234:3. The Court therefore grants Defendant summary judgment on Plaintiff's false light claim. The Plaintiff cannot show that he was placed in a false light because he has not shown that there was any publication. Additionally, Plaintiff has not shown that Defendant acted in reckless disregard as to the falsity of the publicized matter because there was no publication.
Under the heading "Fourth Claim—Wrongful Discharge" Plaintiff alleges that "Defendant, by and through its agents and employees, violated a clear mandate of public policy contained in the doctrine of promissory estoppel when Plaintiff's employment with Defendant was terminated." Compl. ¶ 21.
Even where an at-will employment contract is at issue, which is terminable at the will of either party for any reason or no reason at all, an employer may be liable for wrongful discharge if its discharge of an employee violates a clear public policy. Parnar v. Americana Hotels, Inc., 65 Haw. 370, 377, 652 P.2d 625, 630 (Haw.1982). As there are material issues of fact regarding whether there is a term contract or an at-will contract here, the Court will examine whether the discharge contravenes the letter or purpose of a constitutional, statutory, or regulatory provision. See id. Because of the "somewhat vague meaning of the term `public policy,'" a claim under Parnar further requires a violation of a "clearly defined policy." Id. at 379, 652 P.2d at 630-31; see also Takaki v. Allied Machinery Corp., 87 Haw. 57, 63, 951 P.2d 507, 513 (Haw. App.1998) (holding that Parnar only applies
Wrongful termination claims are usually only raised in a narrow class of cases where the claim is necessary to effectuate the public policy at stake. Griffin v. JTSI, Inc., 654 F.Supp.2d 1122, 1139-40 (D.Haw.2008). This necessity usually arises only where a statutory or other policy does not itself provide for a remedy to enforce the policy. Id.
In his Opposition, Plaintiff asserts that "a wrongful discharge did take place and did violate public policy." Opposition at 15. In his Complaint, Plaintiff claims that "Defendant, by and through its agents and employees, violated a clear mandate of public policy contained in the doctrine of promissory estoppel when Plaintiff's employment with Defendant was terminated." Compl. ¶ 21.
Wrongful termination claims have been permitted in circumstances where an employee may have been terminated for providing truthful testimony to investigators regarding an employer's potential antitrust violations and where an employee refused to perjure himself before a legislative committee. See Parnar, 65 Haw. at 378, 652 P.2d at 630 (court found a claim where plaintiff argued that public policy is violated by the discharge of an employee who gives truthful information about an employer's possible antitrust violation) (citing the "landmark case on the public policy exception," Petermann v. International Brotherhood of Teamsters, 174 Cal.App.2d 184, 344 P.2d 25 (1959), in which the plaintiff alleged he was discharged for failing to commit perjury before a legislative committee, contrary to his employer's instructions.)
As the Defendant correctly argues, here Plaintiff cannot convert his equitable claim for promissory estoppel into a tort claim by alleging a Parnar wrongful discharge claim. Plaintiff has not alleged that he was fired for engaging in any conduct comparable to the conduct of the plaintiffs in Parnar and Petermann, nor has he identified a public policy that would be promoted by allowing him to maintain a wrongful discharge claim. Thus, the Court grants Defendant summary judgment on Plaintiff's wrongful discharge claim.
Plaintiff seeks special, general, and punitive damages. Compl. at 7.
Under Hawai`i law, in a breach of employment case, punitive damages will never be recoverable absent conduct that violates a duty independently recognized by principles of tort law. See Lee Enterprises, Inc., 89 Hawai`i at 242, 971 P.2d at 715. The Hawai`i Supreme Court has explained the general standard for punitive damages as follows:
Ass'n of Apartment Owners v. Venture 15, Inc., 115 Haw. 232, 297, 167 P.3d 225, 290 (2007) (quoting Masaki v. General Motors Corp., 71 Haw. 1, 16-17, 780 P.2d 566, 575 (1989)) (brackets omitted). "`[P]unitive damages are not awarded for mere inadvertence, mistake, or errors of judgment.'" Id. (quoting Masaki, 71 Haw. at 7, 780 P.2d at 571) (emphasis omitted); Pancakes of Hawaii, Inc. v. Pomare Properties Corp., 85 Haw. 286, 293, 944 P.2d 83, 90 (Haw.App.1997) ("[N]either willful
Plaintiff here has not demonstrated any evidence which tends to show wanton or oppressive behavior or gross negligence on the part of the Defendant. Plaintiff's bare argument that "defendant [maliciously] lured the plaintiff to change his employment and move to Honolulu and then, after he worked for about one month, fired him and then called him to return to work on an hourly basis, trying to avoid paying him under his one-year contract signed January 26, 2009" is insufficient.
Defendant requests that, in the event any of Plaintiff's claims survive its Motion, the Court grant Defendant summary judgment and limit Plaintiff's damages based on his failure to mitigate his damages. Motion at 23.
The Court rejects Defendant's argument and denies summary judgment on this issue. It is well established that, whether in contract or in tort, a plaintiff has a duty to make every reasonable effort to mitigate his damages. See Malani v. Clapp, 56 Haw. 507, 517, 542 P.2d 1265, 1271 (1975). Defendant admits that it has the burden of showing that mitigation is possible. Motion at 24. Defendant, however, argues that it has established mitigation was possible because Plaintiff was offered an alternate position as a line cook the day after his alleged termination. Id. Plaintiff does acknowledge that he was offered the position as a line cook, but he denies ever accepting it. Motion CSF Ex. A at 195:17-19. However, this refusal does not establish a failure to mitigate.
As Defendant acknowledges, an employee is not obligated to accept a position that is not consonant with his particular skills, background, or experiences. Motion at 24 (citing Sellers v. Delgado Community College, 839 F.2d 1132 (5th Cir.1988)); see also Vieira v. Robert's Hawaii Tours, Inc., 2 Haw.App. 237, 630 P.2d 120 (Haw.App.1981) (explaining the general rule that the employee need not accept a different or inferior job for purposes of mitigation). The Court finds that the position as a line cook is a different or inferior job such that Plaintiff was not required to accept it. The two jobs have very different compensation structures and responsibilities—one is a salaried management position and one is an hourly wage position. Accordingly, the Court denies Defendant's request for summary judgment limiting Plaintiff's damages based upon his alleged failure to mitigate.
For the foregoing reasons, the Court (1) DENIES Defendant's motion for summary judgment with respect to Plaintiff's breach
IT IS SO ORDERED.
The Court in Francis explained that claims for emotional distress arising out of breach of contract were generally barred because they are not anticipated by the parties and because of the differing social policies between contract and tort law:
Id. at 239, 971 P.2d at 712 (internal citations and emphasis omitted, alterations in original). This reasoning may similarly apply here to bar an NIED claim based upon a quasi-contractual promissory estoppel claim, however, this Court need not (and does not) decide that issue as there are multiple other bases upon which Plaintiff's NIED claim fails.
