Hillhouse v. Haw. Behavorial Health, LLC
| Decision Date | 31 October 2014 |
| Docket Number | CIVIL 14-00155 LEK-BMK |
| Parties | RAELYNN J. HILLHOUSE, Plaintiff, v. HAWAII BEHAVORIAL HEALTH, LLC; GEORGE CHOPIVSKY, JR. in his individual capacity, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Before the Court is Defendant Hawaii Behavioral Health, LLC's ("HBH") Amended Motion for Partial Dismissal of Complaint Filed on March 28, 2014, filed on June 30, 2014.1 [Dkt. no. 25.] Plaintiff Raelynn J. Hillhouse ("Plaintiff") filed her memorandum in opposition on September 15, 2014, and HBH filed its reply on September 22, 2014. [Dkt. nos. 41, 43.] The Court finds this matter suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i ("Local Rules"). After careful consideration of the motion, supporting and opposing memoranda, and the relevant legal authority, the HBHMotion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
The factual and procedural background of this case is set forth in this Court's Order Granting in Part and Denying in Part Defendant Chopivsky's Motion for Partial Dismissal of Complaint Filed on March 28, 2014 ("Chopivsky Order").2 [Filed 9/18/14 (dkt. no. 42).3] Plaintiff filed her Complaint, on March 28, 2014, against her former employer, HBH, and its majority owner, Chopivsky, in his individual capacity, asserting jurisdiction pursuant to Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e-1, et seq. and 28 U.S.C. § 1367. [Complaint at ¶¶ 2-4.] The Complaint focuses on a series of allegedly discriminatory and retaliatory actions, based on Plaintiff's gender and sexual orientation, beginning in July 2011, that culminated in her leaving HBH in May 2012.
The Complaint alleges the following claims: discrimination based on sex and sexual orientation, pursuant to Title VII ("Count I"); discrimination based on sex and sexual orientation, pursuant to Haw. Rev. Stat. § 378-2 ("Count II");retaliation pursuant to Title VII ("Count III"); retaliation in violation of Haw. Rev. Stat. § 378-2 ("Count IV"); retaliation against a whistleblower in violation of Haw. Rev. Stat. § 378-62 ("Count V or HPWA Claim"); failure to pay wages under Haw. Rev. Stat. Chapter 388 ("Count VI"); wrongful termination/constructive discharge ("Count VII"); intentional infliction of emotional distress ("Count VIII" or "IIED Claim"); wrongful termination/constructive discharge in violation of public policy, pursuant to Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (1982) ("Count IX" or "Parnar Claim") ("Count IX"); defamation ("Count X"); interference with prospective economic advantage ("Count XI"); and invasion of privacy ("Count XII").4 Plaintiff seeks the following relief: general and/or compensatory damages; special damages; punitive and/or liquidated or exemplary damages; attorneys' fees and costs; other legal and equitable relief available under the state and federal statutes; any other appropriate relief.
HBH moves to dismiss all of the claims against it, except for the federal discrimination claim (Count I) and the retaliation claims (Counts III, IV and V).
As an initial matter, similar to the Chopivsky Motion, Plaintiff does not oppose the instant motion insofar as HBH moves to dismiss Count VII for wrongful termination/constructive discharge. See Reply at 8 (). The Court therefore GRANTS the HBH Motion as to Count VII, and DISMISSES that Count against HBH WITHOUT PREJUDICE. See Harris v. Amgen, Inc., 573 F.3d 728, 737 (9th Cir. 2009) .
Plaintiff also concedes that she fails to state a claim against HBH in Count VI for failure to pay wages under Haw. Rev. Stat. Chapter 388, insofar as she seeks damages for accrued unpaid vacation and sick leave pay.5 [Mem. in Opp. at 14.] Thus, the Court GRANTS the HBH Motion as to that aspect of Count VI, and DISMISSES the claim for unpaid vacation and sick leave against HBH WITH PREJUDICE because "[i]t is clear that this deficiency cannot be cured by any amendment." See Zanze v. Snelling Servs., LLC, 412 F. App'x 994, 996 (9th Cir. 2011).
Plaintiff does, however, oppose HBH's challenge toCount VI insofar as that claim seeks damages for unpaid wages. Haw. Rev. Stat. § 388-6 provides that "[n]o employer may deduct, retain, or otherwise require to be paid, any part or portion of any compensation earned by any employee . . . ." HBH argues that "Plaintiff does not allege that she was not properly paid the wages earned by her at the time she left her employment." [Mem. in Supp. of HBH Motion at 12.] The Court disagrees. Plaintiff alleges that "Defendants further refused to pay the full amount of Plaintiff's . . . remaining salary and bonus amounts due," [Complaint at ¶ 89,] and "wrongfully withheld Plaintiff's wages" [id. at ¶ 129]. Although she does not allege any additional details, what she does include is sufficient to plead a plausible claim under Chapter 388. See Ctr. for Cmty. Action & Envtl. Justice v. BNSF R. Co., 764 F.3d 1019 (9th Cir. 2014) .6 The Court thus DENIES the HBH Motion as to Count VI to the extentPlaintiff alleges HBH withheld compensation owed.7
HBH argues that Count II, alleging discrimination based on sex and sexual orientation, in violation of Haw. Rev. Stat. § 378-2, should be dismissed as untimely. Haw. Rev. Stat. § 368-11(c) provides:
(2) Of the last occurrence in a pattern of ongoing discriminatory practice.
"The Hawaii Supreme Court has characterized this as a 'statute of limitations period' . . . ." Reyes v. HMA, Inc., Civil No. CV07-00229 SOM/KSC, 2008 WL 1883904, at *2 (D. Hawai`i Apr. 28, 2008) (quoting Sam Teague, Ltd. v. Haw. Civ. Rights Comm'n, 89 Haw. 269, 276, 971 P.2d 1104, 1111 (1999)).
HBH argues that Plaintiff did not file her charge with the Hawai`i Civil Rights Commission ("HCRC") within 180 days of the alleged sexual harassment perpetrated by former president of HBH, Alexander J. Hoinsky, in August 2011, as required by § 368-11(c)(1). [Mem. in Supp. of HBH Motion at 5-8.] Plaintiff responds that she has alleged a pattern of ongoing discriminationby Hoinsky and Chopivsky that continued up to May 2012 and therefore, under § 368-11(c)(2), her May 2012 charge with the HCRC was timely.8 [Mem. in Opp. at 8-14.]
Plaintiff alleges that Hoinsky sexually harassed her in July and August 2011, while on business trips to Hawai`i from his home in New Jersey. [Complaint at ¶¶ 15-32.] In the following section of the Complaint, entitled "Plaintiff's Reports of Unlawful Discrimination to Defendants," she alleges that she reported the harassment by Hoinsky to Chopivsky. [Id. at ¶¶ 33-38.] In the remainder of the Complaint, Plaintiff describes various actions taken by Chopivsky to harass Plaintiff and eventually force her out of HBH, including: abusing her verbally and over email; micro-managing her; undermining her authority in front of her subordinates, including Chief Financial Officer, Michael Lukson ("Lukson"); stripping her of job duties and the authority she needed in order for her and HBH to succeed; placing impossible and unhealthy demands on her and then blaming her for purported failures; forcing her to do a self-evaluation to create a record whereby Chopivsky could drive her out of HBH; involving Hoinsky in operations and decisionmaking; and actively workingwith Hoinsky and Lukson to push her out of HBH. [Id. at ¶¶ 39-90.]
Both parties argue, and the Court agrees, that the standard set forth by the United States Supreme Court in National Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002), applies, see, e.g., Kosegarten v. Dep't of the Prosecuting Attorney, 892 F. Supp. 2d 1245, 1261 (D. Hawai`i 2012); White v. Pac. Media Grp., Inc., 322 F. Supp. 2d 1101, 1112-13 (D. Hawai`i 2004), and to find a "continuing violation" the Court must determine whether Plaintiff has pled a "series of separate acts that collectively constitute one 'unlawful employment practice.'" See Morgan, 536 U.S. at 117 (quoting 42 U.S.C. § 2000e-5(e)(1)).
Based on the allegations and the structure of the Complaint, the sexual harassment by Hoinsky in July and August 2011 is distinct from the work-related and retaliatory harassment by Chopivsky from September 2011 through May 2012. Plaintiff has not pled that Chopivsky sexually harassed her or discriminated against her on the basis of sex and sexual orientation as required by Hawai`i law. This Court has explained:
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