Thorn v. Bae Systems Hawaii Shipyards, Inc.

Citation586 F.Supp.2d 1213
Decision Date10 November 2008
Docket NumberCivil No. 08-00058 JMS/BMK.
CourtU.S. District Court — District of Hawaii
PartiesRobert S. THORN, Plaintiff, v. BAE SYSTEMS HAWAII SHIPYARDS, INC., Defendant.

Charles H. Brower, Charles H. Brower and Associates, A Law Corporation, Honolulu, HI, for Plaintiff.

John L. Knorek, John S. MacKey, Robert S. Katz, Kalani A. Morse, Torkildson Katz Moore Hetherington & Harris, Honolulu, HI, for Defendant.




Plaintiff Robert S. Thorn ("Plaintiff") alleges that his employer, Defendant BAE Systems Hawaii Shipyards, Inc. ("Defendant") terminated him because he is disabled. Plaintiff asserts claims for violation of Title I of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and Hawaii Revised Statutes ("HRS") § 378-2, intentional infliction of emotional distress ("IIED"), and negligent infliction of emotional distress ("NIED").

Currently before the court is Defendant's Motion for Summary Judgment. Based on the following, the court GRANTS Defendant's Motion for Summary Judgment on Plaintiff's claims pursuant to the ADA and HRS § 378-2, and declines jurisdiction over Plaintiff's remaining state law claims.

A. Factual Background

On January 26, 2006, Plaintiff began work as a Level 1 Mechanic for Defendant, who operates a ship repair business at the Pearl Harbor Naval Shipyard. Pl.'s Decl. ¶¶ 2-3; Perrino Decl. ¶ 2.

Prior to his employment, Plaintiff completed a voluntary "Veterans Survey" for Defendant in which he identified himself as a "Special Disabled Veteran," meaning that he is "entitled to disability compensation under laws administered by the Veterans Administration [("VA")] rated at ten (10) percent or more, or a person whose discharge or release from active duty was for disability incurred or aggravated in the line of duty." Def.'s Ex. 4, Veteran's Survey. During his service with the Navy, Plaintiff had fractured his back, Pl.'s Decl. ¶ 9, and on September 15, 2005, the VA determined that Plaintiff suffers from a degenerative joint disease in his lumbar spine, which it evaluated as 40 percent disabling. Pl.'s Ex. A, at 16; see also Pl.'s Ex. B (stating that as of April 16, 2008, Plaintiff receives disability compensation due to service-connected disability rated at 30 percent or more); Pl.'s Ex. D. Plaintiff also tore his anterior cruciate ligament ("ACL") in his left knee in 2001, had two surgeries on his left knee to repair its meniscus, and had surgery on his right knee. Pl.'s Decl. ¶ 8.

Plaintiff passed Defendant's physical exam, identified no medical problems, and was deemed "medically fit for employment" without any "suggested work limitations and precautions." See Azuma Decl., Exs. 3a, 3d. Plaintiff also explained to Human Resources Department Manager Marsha Azuma ("Azuma") that he had problems with his knees and back, but would be able to do his job. Def.'s Ex. 21, at 22-23. Indeed, while Plaintiff "deals with pain on a daily basis," he has "never limited himself" and his physical problems do not "stop him from doing anything." Def.'s Ex. 17. For example, Plaintiff has asserted that he can walk, work, and pick up to 50 pounds, did not need reasonable accommodation to do his job with Defendant, and has "never asked for special help for his disability." Id.

During his orientation, Plaintiff also received Defendant's Workplace Violence Policy ("Workplace Policy"), which provides:

Workplace violence may involve any threats of acts of violence occurring on Company premises, regardless of the relationship between the company and the parties involved in the incident.


Specific examples of conduct that may constitute threats or acts of violence under this policy include . . . [a]ggressive or hostile behavior that creates a reasonable fear of injury to another person, including threats or acts of an aggressive physical nature directed toward another individual[.] . . . Violations of this policy, by any individual, will lead to disciplinary action, up to and including termination.

Pl.'s Ex. F; see also Def.'s Exs. 3, 4.

During his employment, Plaintiff's supervisors considered him a skilled mechanic, but expressed concern regarding Plaintiff's ability to get along with other employees. Cadorna Decl. ¶ 8; see Def.'s Ex. 8. On May 24, 2006, Plaintiff received a Disciplinary Notice ("Notice") for violating the Workplace Policy when he jokingly tapped a co-worker on his hard hat with a tool. Def.'s Ex. 7. The Notice, signed by Plaintiff, states:

This is the second incident of a similar nature between Robert and another employee. Robert is a highly skilled employee and a great technical asset to the company. However, his inability to work well with others may become a severe liability. Robert needs to be cautious and should not touch another employee, particularly with a tool in a manner that may be construed to be an aggression. Robert's probationary period is being extended by 30 days; if a similar incident occurs he will not be retained.

Id. Plaintiff was also warned of his behavior when he was promoted to Journeyman in July 2006. Under "Remarks for any pay increase," Plaintiff's promotion states, "Robert's skills are very good; however, he needs to understand that getting along with other employees is also important. We will not tolerate continued disputes with other employees." Def.'s Ex. 8.

In August 2006, Plaintiff began work as a "leadman." Pl.'s Decl. ¶ 16. Plaintiff was then laid off from October 20, 2006 to November 27, 2006 during Defendant's slow season, and planned to have knee surgery during this time. Id. ¶¶ 10-13. Plaintiff subsequently hurt his back doing yard work during his lay-off and had to postpone his surgery until December 7, 2006. Id. ¶¶ 12-14. When Plaintiff resumed work on November 27, 2006, he told Production Leadman Mark Hansen ("Hansen") that his back was "really hurting" and he could work only a short period of time due to his pending surgery and subsequent recovery. Id. ¶¶ 14, 17. On November 29, 2006, Plaintiff complained that he could not lift heavy plates due to his back condition, which angered Hansen and Production Foreman Ernie Cadorna ("Cadorna").1 Id. ¶ 18.

Since resuming work on November 27, 2006, Plaintiff believed that he was a leadman and indicated this position on his timecard to receive higher pay. Id. ¶ 16. On Friday, December 1, 2006, however, Hansen told Plaintiff to stop indicating that he is a leadman on his timecard because Cadorna did not need him in that position. Cadorna Decl. ¶ 4; Hansen Decl. ¶ 4. Plaintiff became upset because he believed Cadorna had demoted him as a result of Plaintiff's requests for accommodation.2 Pl.'s Decl. ¶¶ 21-23. The parties dispute precisely what occurred next.

Plaintiff asserts that as he was clocking out, he saw Cadorna at the end of the warehouse and "yelled to Cadorna that if he had anything negative to say about me, to keep it to himself or I would file a grievance with the union against him." Id. ¶ 23. The generators were running loudly, so Cadorna walked toward Plaintiff and both men raised their voices. Id. ¶¶ 23-24. Plaintiff asserts that he never threatened Cadorna, told him that he was going to kick his ass, or kill him. Id. ¶ 26. Plaintiff was, however, cursing and grumbling to himself as he clocked out, and said to himself "I should kick his ass." Id. ¶¶ 27-28. Security Manager James Cummings heard the voices, and said "get out of the shop, cool off and come back." Id. ¶ 25.

In comparison, Cadorna asserts that he heard Plaintiff yelling profanities at someone near the time clock, and Cadorna went closer to understand why Plaintiff was upset. Cadorna Decl. ¶ 5. As Cadorna got closer, he understood that Plaintiff was cursing at him and saying "I'm going to kick your fucking ass." Id. Cadorna tried to explain that he did not need him as leadman at this time, but Plaintiff responded with more obscenities. Id. Next, Cummings came out of his office and told Plaintiff to leave the warehouse and cool off, but Plaintiff ignored Cummings' order and continued advancing toward and cursing at Cadorna. Id. ¶ 6. Cummings therefore inserted himself between Plaintiff and Cadorna and tried to calm Plaintiff down until he left the warehouse. Id.; see also Hansen Decl. ¶¶ 4-5 (recounting similar version of events); Cummings Decl. Ex. 1 (same).

Because it was late in the day, Cadorna waited until Monday, December 4, 2006, to report Plaintiff's conduct to Production Manager Carl Perrino ("Perrino"). At 6:00 a.m., Hansen and Cadorna met with Perrino, who told them that he would conduct an investigation and asked them to return at 8:00 a.m. for a meeting with Plaintiff and Union Shop Steward Joe Waldrop ("Waldrop"). Hansen Decl. ¶ 6. Perrino Decl. ¶ 4.

In the meantime, Plaintiff returned to work and learned that his supervisors were going to have a meeting regarding the December 1 incident. Pl.'s Decl. ¶ 32. Around 7:00 a.m., Plaintiff reported to Nurse Philip Cornejo ("Nurse Cornejo") because his knees were bothering him. Id. ¶¶ 33-34. Because Nurse Cornejo was previously unaware of Plaintiff's upcoming surgery, he requested, and Plaintiff provided, paperwork confirming his surgery. Cornejo Decl. ¶ 2; Pl.'s Exs. G-H. Nurse Cornejo next met with Perrino and recommended that Plaintiff either be sent home or put on light duty for the day. Cornejo Decl. ¶ 2; Perrino Decl. ¶ 4; see also Def.'s Ex. 21, at 73-74; Pl.'s Ex. I (recommending that Plaintiff observe "no long hours of standing carrying any weight over 20 pounds, no prolonged periods of walking"). Perrino agreed that it would be best to send Plaintiff home, but told Plaintiff to first come to his office at 8:00 a.m. to...

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