Hsu v. State Dep't of Transp.

• Decision Date: 17 October 2011
• Docket Number: CV. NO. 10-00470 DAE/KSC
• Parties: HUI-HSIANG HSU, Plaintiff, v. STATE OF HAWAII DEPARTMENT OF TRANSPORTATION; and DOE INDIVIDUALS 1-20; DOE ENTITIES 1-20; DOE CORPORATIONS 1-20; DOE PARTNERSHIPS 1-20, Defendants.
• Court: U.S. District Court — District of Hawaii

HUI-HSIANG HSU, Plaintiff,

v. STATE OF HAWAII DEPARTMENT OF TRANSPORTATION;and DOE INDIVIDUALS 1-20; DOE ENTITIES 1-20; DOE CORPORATIONS 1-20;DOE PARTNERSHIPS 1-20, Defendants.

CV. NO. 10-00470 DAE/KSC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Date: October 17, 2011

ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

On October 14, 2011, the Court heard Defendant State of Hawaii Department of Transportation's ("Defendant") Motion for Summary Judgment ("Motion"). Venetia K. Carpenter-Asui, Esq., appeared at the hearing on behalf of Plaintiff Hui-Hsiang Hsu ("Plaintiff"); Nelson Y Nabeta, Esq., and James Earl Halvorson, Esq., appeared on behalf of Defendant. After reviewing the Motion and the supporting and opposing memoranda, the Court GRANTS Defendant's Motion for Summary Judgment (Doc. # 27).

BACKGROUND

I. Factual Background

The instant action stems from allegations that Defendant unlawfully retaliated against Plaintiff in violation of Title VII of the Civil Rights Act of 1964.

Plaintiff is currently employed by Defendant and has been since 2008. ("Compl.," Doc. # 1, ¶ 9-10.) Plaintiff works in Defendant's Fiscal Accounting Office. Plaintiff claims that in late February 2008, she was descending a stairway at Defendant's main office while a male employee, Charles Cruz ("Cruz") was ascending the same stairway. (Id. ¶ 11.) Plaintiff and Cruz engaged in "small talk" conversation at which point Cruz "rested his hand on her left upper thigh and buttocks area." (Id.) Plaintiff thereafter exited the stairwell. (Id.)

Plaintiff claims she reported the matter to Chief Fiscal Officer for the Highways Division Fiscal Office Wai Li ("Li"), her supervisor, who in turn took her to see Highways Division Personnel Officer Thomas Jackson ("Jackson"). (Id. ¶ 12.) Jackson consulted with Office of Civil Rights Manager Rey Domingo ("Domingo"). (Id.) Domingo and Jackson agreed that Equal Employment Opportunity/Affirmative Action Officer Elizabeth-Ann Motoyama ("Motoyama") would investigate the matter. (Id.)

Motoyama's investigation resulted in a mutually agreeable settlement between Plaintiff and Cruz. (Id. ¶ 13.) Importantly, as a part of the settlement agreement, Cruz "agreed to stay out of Plaintiff's work area, to not communicate with her, to not look at her, to not acknowledge her presence, and to avoid being in close proximity with her." (Id.)

In April 2008, Plaintiff claims that "Cruz returned to Plaintiff's work area in Fiscal Accounting." (Id.) Plaintiff complains that "Cruz positioned himself in close proximity to the Plaintiff which required Plaintiff to walk through a swinging door at an angle to avoid brushing up against Cruz." (Id.) Motoyama spoke with Gerald Dang ("Dang"), Cruz's supervisor, about this development, but he allegedly refused to stop Cruz from entering Plaintiff's work area. Motoyama thereafter advised Cruz and Dang that Cruz's return to Plaintiff's work area might be construed as retaliation. (Id.)

In July 2008, Plaintiff filed a retaliation complaint with Motoyama in Defendant's Office of Civil Rights Management. (Id.) Plaintiff also filed a complaint with the Equal Employment Opportunity Commission ("EEOC") on July 28, 2008 regarding Cruz's harassment and the subsequent alleged retaliation. (Id.) Plaintiff finally sent an email to Director Morioka ("Morioka") requesting he protect her from retaliation on August 5, 2008. (Id. ¶ 15.)

After further attempts to resolve the conflict, Dang met with Li, as well as Plaintiff's other two supervisors, Jerry Sikorski ("Sikorski") and Tommy Leong ("Leong"). (Id. ¶ 20.) At this meeting, Plaintiff claims that Dang asked Plaintiff's three supervisors to fire her. (Id.) Plaintiff goes on to allege that "[w]hen they refused, Dang, in further retaliation . . . launched an investigation of Plaintiff based on information that Dang acquired from [Defendant's] employees." (Id.) Specifically, Defendant investigated Plaintiff's prior felony conviction for theft. ("DCSF," Doc. # 28, Ex. N.)

Plaintiff next claims that in November 2008, Dang hired Cathy Hiranaka ("Hiranaka"), an individual who held Plaintiff's position prior to Plaintiff being hired. (Id. ¶ 22.) Plaintiff claims that Hiranaka harassed Plaintiff with numerous emails and "[a]cted in the place of supervisor rather than co-worker." (Id.) Plaintiff filed a second retaliation complaint with the EEOC on January 23, 2010.¹ (Id. ¶ 25.)

II. Procedural Background

On August 16, 2010, Plaintiff filed her Complaint with this Court. (Doc. # 1.) Plaintiff initially alleged causes of action for: (1) hostile workenvironment and retaliation in violation both of Title VII as well as Hawaii State Law (Compl. ¶¶ 42-44); (2) Violations of Hawaii Whistleblowers' Protection Act (id. ¶¶ 45-47); and (3) Intentional Infliction of Emotional Distress (id. ¶¶ 48-53). Since then, however, the parties have stipulated to dismiss Plaintiff's hostile work environment and state law claims. (See Doc. # 51.) Accordingly, all that remains are Plaintiff's Title VII retaliation claims.

On June 15, 2011, Defendant filed its Motion for Summary Judgment. ("Mot.," Doc. # 27.) On September 23, 2011, Plaintiff filed her Opposition. ("Opp'n," Doc. # 46.) On September 30, 2011, Defendant filed its Reply. ("Reply," Doc. # 49.)

STANDARD OF REVIEW

Federal Rule of Civil Procedure ("Rule") 56 requires summary judgment to be granted when "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); see also Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A main purpose of summary judgment is to dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial—usually, but not always, the defendant—has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls upon the moving party to identify for the court those "portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323).

Once the moving party has carried its burden under Rule 56, the nonmoving party "must set forth specific facts showing that there is a genuine issue for trial" and may not rely on the mere allegations in the pleadings. Porter, 419 F.3d at 891 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In setting forth "specific facts," the nonmoving party may not meet its burden on a summary judgment motion by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) ("When resolving motions for summary judgment, the court shall have no independent duty to search and consider any partof the court record not otherwise referenced in the separate concise statements of the parties."). "[A]t least some 'significant probative evidence' " must be produced. T.W. Elec. Serv., 809 F.2d at 630 (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). "A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact." Addisu, 198 F.3d at 1134. Further, the Ninth Circuit has "refused to find a 'genuine issue' where the only evidence presented is 'uncorroborated and self-serving' testimony." Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (citing Kennedy v. Applause, Inc., 90 F.3d 1477, 1481 (9th Cir. 1996)). "Conclusory allegations unsupported by factual data cannot defeat summary judgment." Rivera v. Nat'l R.R. Passenger Corp., 331 F.3d 1074, 1078 (9th Cir. 2003).

When "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." T.W. Elec. Serv., 809 F.2d at 631. In other words, evidence and inferences must be construed in the light most favorable to the nonmoving party. Porter, 419 F.3d at 891. The court does not make credibility determinations or weigh conflicting evidence at the summary judgment stage. Id.; see also Nelsonv. City of Davis, 571 F.3d 924 (9th Cir. 2009) ("[C]redibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.") (citations omitted). However, inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. T.W. Elec. Serv., 809 F.2d at 631.

DISCUSSION

I. Retaliation

Title VII's "opposition" clause makes it "'unlawful . . . for an employer to discriminate against any . . . employee[] . . . because he has opposed any practice made . . . unlawful . . . by this subchapter.'" Crawford v. Metro. Gov't of Nashville & Davidson Cnty, 129 S. Ct. 846, 850 (2009) (quoting 42 U.S.C. § 2000e-3(a)) (modification in original). "When an employee communicates to her employer a belief that the employer has engaged in a form of employment discrimination, that communication virtually always constitutes the employee's opposition to the activity." Id. at 851.

"'In order to establish a prima facie case of retaliation [a plaintiff] must demonstrate that ...