Kishaba v. Hilton Hotels Corp.

• Decision Date: 10 April 1990
• Docket Number: Civ. No. 87-0840 ACK.
• Citation: 737 F. Supp. 549
• Parties: Bunny KISHABA, Plaintiff, v. HILTON HOTELS CORP., et al., Defendants.
• Court: U.S. District Court — District of Hawaii

737 F. Supp. 549

Bunny KISHABA, Plaintiff, v. HILTON HOTELS CORP., et al., Defendants.

Civ. No. 87-0840 ACK.

United States District Court, D. Hawaii.

February 16, 1990.

Findings of Fact and Conclusions of Law and Order April 10, 1990.

Howard Green, Michael A. Lilly, Green Ning Lilly & Jones, Honolulu, Hawaii, for plaintiff.

Robert Katz, Sabrina Toma, Torkildson Katz Jossem Fonseca & Moore, Honolulu, Hawaii, for defendants.

DECISION

KAY, District Judge.

Plaintiff Bunny Kishaba claims she was constructively discharged by Defendants Hilton Hotels Corporation, dba Hilton Hawaiian Village ("Hilton"), and Earl McDonough because of her Asian race in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (1978) ("Title VII") (Paragraph 37, First Amended Complaint).

After reviewing all the evidence, arguments and memoranda of the parties, it is the decision of this Court that Plaintiff Kishaba has failed to establish either race discrimination or a continuous pattern of conduct that rendered her work environment so intolerable and discriminatory that a reasonable person in the same position would have felt forced to quit. While McDonough may have been abrupt and treated employees poorly, there is no evidence that the Defendants treated any employee less favorably than others because of his or her race. In fact, in some ways McDonough gave Plaintiff more preferential treatment than other secretaries. In particular, Plaintiff has not shown that there existed aggravating factors such as a pattern or practice of disparate treatment and that any such treatment was racially premised. Plaintiff has failed to prove she was subjected to different or abusive working conditions because of her Asian race. In viewing the demeanor and testimony of all witnesses, as well as the other evidence, this Court finds that Plaintiff's testimony is not as credible as that of Defendants' witnesses. The Court concludes that there was no constructive discharge nor violation of Title VII.

This Court finds that Plaintiff's longtime and loyal employment with Hilton was tragically ended by Plaintiff's decision to resign as the result of her supersensitivity over the hiring of a second secretary to service McDonough, for which there were legitimate, non-discriminatory business reasons, and in her mistaken belief that McDonough had pulled her file in furtherance of some plan to fire her.

In view of this Court's decision, the motions for dismissal of McDonough and concerning respondeat superior are moot.

TITLE VII

Section 703(a) of Title VII, provides:

(a) It shall be an unlawful employment practice for an employer —

(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a).

Plaintiff in the instant action has argued that Defendants treated her in a discriminatory manner because of her Asian race. She has proceeded, therefore, under a "disparate treatment" theory of Title VII liability. The disparate treatment theory, as distinguished from a "disparate impact" approach, applies where an employer has treated some person less favorably than others because of his or her race, color, religion, sex, or national origin. See International Bro. of Teamsters v. United States, 431 U.S. 324, 334-343, 97 S.Ct. 1843, 1854-859, 52 L.Ed.2d 396 (1977). In a disparate treatment case, "proof of discriminatory motive is critical, although it can in some situations be inferred from the mere fact of differences in treatment." Id. at 335 n. 15, 97 S.Ct. at 1854-855 n. 15 (1977); see also, Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 537 (9th Cir.1982) ("By their very nature, these claims disparate racial treatment require proof of intentional discrimination.") In United States Postal Service v. Aikens, 460 U.S. 711, 103 S.Ct. 1478, 75 L.Ed.2d 403 (1983), the Supreme Court stated:

The "factual inquiry" in a Title VII case is "whether the defendant intentionally discriminated against the plaintiff." (cite) In other words, is "the employer ... treating `some people less favorably than others because of their race, color, religion, sex, or national origin.'" Aikens, 460 U.S. at 715, 103 S.Ct. at 1482.

The Teamsters Court established a two-prong analysis for disparate treatment cases. The Title VII plaintiff must establish (i) that there existed at the place of employment a "pattern or practice" of disparate treatment and, (ii) that such disparate treatment was "racially premised." Teamsters, 431 U.S. at 335, 97 S.Ct. at 1854.

Indirect Evidence of Discrimination

As in any lawsuit, a Title VII plaintiff may rely upon either direct or circumstantial evidence to prove his case. Accordingly, intentional discrimination under a disparate treatment theory may be demonstrated through either direct or indirect, i.e., "circumstantial," evidence. Aikens, 460 U.S. at 714 n. 3, 103 S.Ct. at 1481 n. 3. The trier of fact, therefore, "should consider all the evidence, giving it whatever weight and credence it deserves." Ibid. By "direct evidence" is meant that evidence which, if believed, establishes the existence of a fact in issue without reliance upon inference or presumption. Black's Law Dictionary, 413-14 (5th ed. 1979). By "circumstantial" or "indirect" evidence is meant evidence which, if believed, establishes the existence of a fact not directly proved through the medium of inferences drawn from those facts that are directly proved. Id. at 221. As applied to the instant case, therefore, direct evidence is evidence which, if believed, establishes discrimination without the need for further inference or presumption, whereas indirect evidence is evidence which, if believed, requires further inference from such evidence to establish discrimination.

The landmark case of McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S.Ct. 1817, 1824, 36 L.Ed.2d 668 (1973), created a series of shifting burdens of proof which is applicable to Title VII actions based upon either direct or indirect evidence. Plaintiff mistakenly assumes that McDonnell Douglas is inapplicable to a Title VII action involving direct proof of discrimination. What the Supreme Court actually prescribed is that "the McDonnell Douglas formula does not require direct proof of discrimination." Aikens, 460 U.S. at 714, n. 3, 103 S.Ct. at 1481, n. 3, quoting, Teamsters, 431 U.S. at 358, n. 44, 97 S.Ct. at 1866, n. 44 (emphasis added). It is apparent, however, that the Eleventh Circuit has distinguished Title VII actions involving direct evidence of discrimination from those involving indirect evidence by requiring a variation of the McDonnell Douglas analysis. That variation is discussed below.

Under standard McDonnell Douglas analysis, the plaintiff has the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. Teamsters, 431 U.S. at 335-36, 97 S.Ct. at 1854-855; Albemarle Paper Co. v. Moody, 422 U.S. 405, 425, 95 S.Ct. 2362, 2375, 45 L.Ed.2d 280 (1975); Gay v. Waiters' and Dairy Lunchmen's Union, 694 F.2d 531, 538 (9th Cir.1982) ("This initial burden of production ... is met upon a `showing of actions taken by the employer from which one can infer, if such actions remain unexplained, that it is more likely than not that such action was based upon' race or another impermissible criterion.") Although McDonnell Douglas articulated a four-factor formula specific to the issue of discriminatory hiring, Plaintiff's threshold burden of proving a prima facie case of discrimination may be discharged by "an alternative presentation of evidence supporting an inference of discrimination." Gay, 694 F.2d at 538; see also, Diaz v. American Telephone and Telegraph, 752 F.2d 1356, 1361 (9th Cir.1985); Fragante v. City and County of Honolulu, 888 F.2d 591, 595 (9th Cir.1989). Thus, while the McDonnell Douglas' four-factor formula of discriminatory hiring is not required, the shifting burden of proof analysis is most commonly followed. Diaz, 752 F.2d at 1361. And the burden of establishing a prima facie case is not designed to be "onerous." Id.

By successfully establishing a prima facie case of discrimination, the Title VII plaintiff thereby creates a "rebuttable `presumption that the employer unlawfully discriminated against' him." Aikens, 460 U.S. at 714, 103 S.Ct. at 1481. If the plaintiff is successful in establishing his prima facie case, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for the allegedly discriminatory action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253, 101 S.Ct. 1089, 1093, 67 L.Ed.2d 207 (1981) ("Burdine"), quoting, McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804, 93 S.Ct. 1817, 1825, 36 L.Ed.2d 668 (1973). Finally, if the employer successfully rebuts the plaintiff's prima facie showing of discrimination, the burden shifts back to the plaintiff to prove by a preponderance of the evidence "that the employer's purported reason for non-selection was `a pretext for invidious discrimination.'" Fragante, 888 F.2d at 595, quoting, Burdine, 450 U.S. at 252-53, 101 S.Ct. at 1093-094. It is at this stage, however, that the rebuttable presumption established by the plaintiff's prima facie case "drops from the case" and "`the factual inquiry proceeds to a new level of specificity.'" Aikens, 460 U.S. at 715, 103 S.Ct. at 1482, quoting, Burdine, 450 U.S. at 255, n. 10, 101 S.Ct. at 1095, n. 10. The Supreme Court clarified the impact of these shifting burdens of proof:

The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Burdine, 450 U.S. at 253 101 S.Ct. at 1093; see also, Gay, 694 F.2d at 537 ("The plaintiff in a

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