Sing v. Hawaiian Airlines, Inc.

• Decision Date: 15 November 2021
• Docket Number: Civ. 20-00427 JMS-KJM
• Parties: KYLE K. TIM SING, Plaintiff, v. HAWAIIAN AIRLINES, INC., Defendant.
• Court: U.S. District Court — District of Hawaii

KYLE K. TIM SING, Plaintiff,
v.
HAWAIIAN AIRLINES, INC., Defendant.

Civ. No. 20-00427 JMS-KJM

United States District Court, D. Hawaii

November 15, 2021

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT, ECF NO. 30

J. Michael Seabright Chief United States District Judge

I. INTRODUCTION

Before the court is a Motion by Defendant Hawaiian Airlines, Inc., ECF No. 30, requesting summary judgment as to all claims asserted by Plaintiff Kyle K. Tim Sing. The court DENIES Defendant's Motion for Summary Judgment as to Plaintiff's discrimination claim under the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., and the court GRANTS the Motion as to Plaintiff's whistleblower claim under the Hawaii Whistleblower's Protection Act (“HWPA”), Hawaii Revised Statutes (“HRS”) § 378-61 et seq., and as to Plaintiff's request for punitive damages.

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II. BACKGROUND

A. Factual Background

Plaintiff worked as a line serviceman for Defendant Hawaiian Airlines for over 14 years, ending with his termination on July 23, 2019. ECF No. 31 at PageID # 132, ¶ 1.^[1] Plaintiff's duties included “guiding, towing and pushing back aircraft, and servicing aircraft with fuel and oil.” Id., ¶ 4. Those duties required “standing, walking, sitting/driving, lifting approximately 75 pounds or more, and other physical activity, with walking required for at least half of the [ten-hour] shift.” Id., ¶¶ 5-6. Plaintiff was a union member, and his employment was subject to the terms of a collective bargaining agreement. Id., ¶ 3.

When Plaintiff accepted the line serviceman position, he agreed to comply with Defendant's attendance policy. See id. at PageID # 133, ¶ 8. That policy emphasizes that Defendant “operates an air transportation service designed to provide a reliable and dependable operation to the traveling public, ” and “[i]n order to fulfill this obligation, [Defendant] must have its employees report to work as scheduled.” ECF No. 31-29 at PageID # 327. “Absences of any kind weaken [Defendant's] ability to operate and provide essential transportation services to the public, and to earn a return on its investment.” Id. Defendant's policy

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acknowledges, however, that “employees are vulnerable to disabling illnesses or injuries which might keep them from reporting to work.” Id.

Defendant's attendance policy made Plaintiff subject to the Attendance Control Program (“ACP”), a progressive discipline program designed to balance Defendant's need for consistent attendance with employees' need to take off work for illnesses and injuries. See ECF No. 31 at PageID # 133, ¶ 8; ECF No. 31-29 at PageID # 327. Under the ACP, employees are given notice of excessive absences and are progressed through disciplinary “steps, ” the fifth and final step being termination. See id. To increase a step in the ACP, including from Step 0 to Step 1, an employee must have committed three “occurrences” within a three-month period. See id. An “occurrence” is defined as an absence from work on any single day, and absences on consecutive days are consolidated into a single occurrence. Id. To drop down to Step 0, an employee must have an occurrence-free attendance record for one year from the last step increase. See id.

Certain absences are exempt from the ACP. “Absences covered by the Family Medical Leave Act (FMLA), Hawaii Family Leave Act (HFLA) or California Rights Act (CFRA) are not counted as occurrences under the ACP.” Id. at PageID # 328. Additionally, there is a dispute over whether absences stemming from workplace injuries, i.e., absences related to workers' compensation, are

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exempt from the ACP. Compare ECF No. 35 at PageID # 362, with ECF No. 38 at PageID ## 486, 492.

In July 2013, Plaintiff experienced a workplace injury affecting his neck, back, and left knee. ECF No. 31 at PageID # 133, ¶ 11. In August 2017, Plaintiff experienced another workplace injury, this one affecting his left foot and left ankle. Id., ¶ 13. Plaintiff sought treatment for those injuries throughout his employment with Defendant, including during the months leading up to his termination. See id., ¶¶ 11-13; ECF No. 36-3 at PagelD ## 418-19, ¶¶ 3, 4, 8. Those injuries affected Plaintiff's performance at work because they limited his ability to walk, stand, and lift objects. ECF No. 36 at PageID # 378, ¶ 45; see also ECF No. 36-3 at PageID # 419, ¶ 8 (Plaintiff declaring that “my work injuries” were “aggravated by work activities”); ECF No. 39 at PageID # 504, ¶ 45 (Defendant agreeing that Plaintiff incurred significant workplace injuries but disputing Plaintiff's legal conclusions regarding those injuries).

The principal factual dispute before the court is whether Plaintiff's progressions from Step 0 to Step 4 were proper under the ACP.^[2] Plaintiff received a Step 1 notice on April 20, 2017. ECF No. 36-4 at PageID # 428. That step increase was based on the following three occurrences in 2017: an absence on

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March 18, consecutive absences from March 31 through April 1, and consecutive absences from April 6 through April 15. Id. Plaintiff asserts that one occurrence-the absences from April 6 through April 15-was related to workers' compensation and thus should have been excluded from the ACP. ECF No. 36-3 at PageID # 420, ¶ 15 (citing ECF No. 36-5, a doctor's note dated April 10, 2017).

Plaintiff received a Step 2 notice on June 23, 2017, based on three occurrences: consecutive absences from April 22 through April 30, consecutive absences from May 6 through May 7, and an absence on May 14. ECF No. 36-6 at PageID # 432. Plaintiff asserts that one occurrence-the absences from April 22 through April 30-was related to workers' compensation and thus should have been excluded from the ACP. ECF No. 36-3 at PagelD ## 420-21, ¶¶ 16-19 (citing ECF No. 36-10, a doctor's note dated July 25, 2017).

Plaintiff received a Step 3 notice on August 14, 2017, based on four occurrences: an absence on June 25, consecutive absences from July 8 through July 13, consecutive absences from July 16 through July 17, and consecutive absences from July 22 through July 24. ECF No. 31-15 at PageID # 312. Plaintiff asserts that all the absences in July (three occurrences) were related to workers' compensation and thus should have been excluded from the ACP. ECF No. 36-3 at PageID # 421, ¶¶ 21-23; ECF No. 36 at PageID # 376, ¶ 16 (citing ECF Nos. 36-8, 36-9, and 36-10, all doctor's notes from July 2017).

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Plaintiff received a Step 4 notice on December 4, 2017, based on six occurrences: an absence on August 21, an absence on September 26, an absence on October 10, consecutive absences from October 16 through October 25, consecutive absences from November 5 through November 8, and consecutive absences from November 13 through November 14. ECF No. 31-16 at PageID # 313. That notice also included a waiver, which Plaintiff signed, of the right to “participate in a disciplinary hearing” for “[p]lacement on Step 4 of the [ACP].” Id. Plaintiff asserts that two occurrences-the August 21 and September 26 absences-were related to workers' compensation and thus should have been excluded from the ACP. ECF No. 36 at PageID # 376, ¶ 17; ECF No. 36-3 at PagelD # 421, ¶¶ 24-26 (citing ECF Nos. 36-12 and 36-13, doctor's notes from August 2017 and September 2017, respectively).

Sometime between December 2017 and April 2018, Plaintiff was moved down to Step 3 of the ACP. See ECF No. 30-1 at PageID # 111; ECF No. 35 at PageID # 364. The parties do not explain the justification for the regression, nor do they provide a document memorializing the regression. See ECF No. 31 at PageID # 134, ¶¶ 17-18; ECF No. 36 at PageID ## 376-77, ¶¶ 17-18.

Plaintiff received a second Step 4 notice on April 29, 2018, based on four occurrences in 2018: consecutive absences from February 6 through February 11, consecutive absences from February 27 through February 28, consecutive

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absences from March 26 through March 28, and consecutive absences from April 22 through April 25. ECF No. 36-14 at PageID # 448. Plaintiff asserts that all of those absences, with the exception of the absences on February 27 and 28, were related to workers' compensation and thus should have been excluded from the ACP. ECF No. 36-3 at PagelD # 422, ¶¶ 27-30 (citing ECF Nos. 36-15, 36-16, and 36-17, doctor's notes from February 2018, March 2018, and April 2018, respectively).

At some point in 2018, Plaintiff complained to one of Defendant's managers, Ms. Nazarene Anderson, that he believed he was being denied workers' compensation benefits in contravention of Hawaii law. See ECF No. 31-8 at PageID ## 267-70. According to Plaintiff, Ms. Anderson responded by stating that she would “take it up with the upper board to see if everything is legit” and would “get back to [him] [after] I get it investigated.” Id. at PageID # 268, ll. 1314; id. at PageID # 269, ll. 8-9. Plaintiff's complaint to Ms. Anderson paralleled his long-running dispute with Defendant over disability benefits that was being adjudicated by Hawaii's Department of Labor and Industrial Relations. See generally ECF No. 36-2.

On March 3, 2019, Plaintiff received a Step 5 notice based on eight occurrences in 2018: consecutive absences from May 1 through May 2, an absence on June 5, an absence on July 29, an absence on August 19, consecutive absences

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from November 12 through November 27, an absence on December 4, an absence on December 9, and an absence on December 12. ECF No. 36-18 at PageID # 456. Plaintiff asserts that the June 5 absence was related to workers' compensation. ECF No. 36 at PageID # 377, ¶ 32 (citing ECF No. 36-19, a doctor's note from June 5, 2018). But Plaintiff does not assert that the Step 5 notice was improperly issued, as there were a sufficient number of absences supporting that step increase, even setting aside the June 5 absence. See ECF No. 35 at PageID # 370.

Although they...