U.S. E.E.O.C. v. Almraisi

• Decision Date: 20 February 2008
• Docket Number: Civil No. 06-00451 SOM/MVIK.,Civil No. 07-00372 SOM/BMK.
• Citation: 535 F.Supp.2d 1149
• Parties: U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Ahmed ALMRAISI, Nagi A. Alziam, Samed Kassam, Muthana A. Shaibi, Nork Yafaie, Abdullah Yahia, Ahmed Almlhany, Plaintiffs-Intervenors, v. NCL America, Inc., and NCL (Bahamas), Ltd., Defendants. Ashmed Almlhany, Plaintiff, v. NCL America, Inc., Defendant.
• Court: U.S. District Court — District of Hawaii

535 F.Supp.2d 1149

U.S. EQUAL EMPLOYMENT OPPORTUNITY COMMISSION, Plaintiff, and Ahmed ALMRAISI, Nagi A. Alziam, Samed Kassam, Muthana A. Shaibi, Nork Yafaie, Abdullah Yahia, Ahmed Almlhany, Plaintiffs-Intervenors, v. NCL America, Inc., and NCL (Bahamas), Ltd., Defendants.

Ashmed Almlhany, Plaintiff, v. NCL America, Inc., Defendant.

Civil No. 06-00451 SOM/MVIK.

Civil No. 07-00372 SOM/BMK.

United States District Court, D. Hawai`i.

February 20, 2008.

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Angela Morrison, US Equal Employment Opportunity Commission, Las Vegas, NV, Anna Y. Park, Peter F. Laura, Victor Viramontes, US Equal Employment Opportunity Commission, Los Angeles, CA, Connie Liem, US Equal Employment Opportunity Commission, San Diego, CA, for Plaintiff U.S. Equal Employment Opportunity Commission.

Daphne E. Barbee, Honolulu, HI, Thomas M. Geisness, The Geisness Law Firm, Seattle, WA, for Plaintiff Ashmed Almlhany and Plaintiffs-Intervenors.

Christopher S. Yeh, Darin Robinson Leong, Richard M. Rand, Steven M. Nakashima, Marr Jones & Wang LLLP, Honolulu, HI, for Defendants.

ORDER GRANTING IN PART AND DENYING IN PART NCL AMERICA INC.'S MOTION FOR SUM. MARY JUDGMENT AS TO ALL CLAIMS BY OR ON BEHALF OF PLAINTIFF-INTERVENOR SAMED KASSEM; ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT NCL AMERICA INC.'S MOTION FOR SUMMARY JUDGMENT AS TO ALL CLAIMS BY THE EEOC AND BY INTERVENORS; ORDER DENYING EEOC'S COUNTER MOTION FOR SUMMARY JUDGMENT; ORDER DENYING BOTH OF DEFENDANT NCL AMERICA, INC.'S MOTIONS FOR, RULE 11 SANCTIONS

SUSAN OKI MOLLWAY, District Judge.

I. INTRODUCTION.

In this employment discrimination case, the court has before it two motions for summary judgment, one counter motion for summary judgment, and two motions for Rule 11 sanctions.

In 2004, Plaintiffs-Intervenors were employed by the cruise ship MS Pride of Aloha, which is owned and operated by NCL America, Inc. ("NCL America"). In July 2004, Plaintiffs-Intervenors were discharged or constructively discharged, allegedly based on their national origin (Yemeni/Middle Eastern) and/or religion (Muslim).

On August 22, 2006, Plaintiff Equal Employment Opportunity Commission ("EEOC") filed a complaint against. NCL America, Norwegian Cruise Line Ltd., and NCL Corporation Ltd. (collectively, "Defendants"),¹ alleging employment discrimination in violation of Title VII of the. Civil Rights Act. On November 22, 2006, the discharged employees intervened as Plaintiffs-Intervenors, alleging unlawful discrimination in violation of Title VII, 42 U.S.C. § 1981, and Haw.Rev.Stat. § 378-2. In addition, Plaintiffs-Intervenors claim intentional infliction of emotional distress ("HEW) and/or negligent infliction of emotional distress ("NIED").

Defendants'² present motion for summary judgment with respect to all claims by or on behalf of Plaintiff-Intervenor Samed Kassem (the "Constructive Discharge Motion") argues that (1) Kassem's constructive discharge termination claim should be dismissed because there are no triable issues as to whether a reasonable person in his position would have felt compelled to leave; (2) the IIED claim should be dismissed as untimely, as not based on outrageous conduct, and as preempted by section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185(a); and (3) the NIED claim should be dismissed as time-barred, as not supported by any physical injury, and as preempted by section 301.

Plaintiffs rigorously contest these arguments. See EEOC's Opposition to Defendants' Motion for Summary Judgment (Jan. 25, 2008) ("EEOC Opp'n to Constructive Discharge Motion"); Intervenor Kassem's Memorandum in Opposition to Defendant Norwegian Cruise Line America's Motion for Summary Judgment (Jan. 24, 2008) ("Intervenor Opp'n to Constructive Discharge Motion").

The court concludes that genuine issues of fact preclude summary judgment as to the constructive discharge claim. Issues of fact also preclude summary judgment with respect to whether Kassem's IIED/NIED claims are time-barred or based on outrageous conduct. Nor are the IIED/NIED claims preempted by section 301 of the LMRA. However, the NIED claim fails given the absence of the physical injury required by Hawaii law. Accordingly, the Constructive Discharge Motion is granted with respect to the NIED claim, but denied with respect to all remaining claims.

In a separate motion for summary judgment (the "Actual Discharge Motion"), Defendants argue that (1) the Title VII national origin and discrimination claims should, be dismissed because those Plaintiffs-Intervenors who were actually fired have not established a prima facie case of discrimination and because Defendants had a legitimate, nondiscriminatory basis for discharging them; (2) the religious discrimination claim should be dismissed because Defendants had no knowledge of Plaintiffs-Intervenors' religion; and (3) the IIED/NIED claims should be dismissed for the same reasons asserted with respect to Kassem's IIED/NIED claims. Defendants additionally challenge Plaintiffs-Intervenors' repatriation damage claims and argue that Plaintiff-Intervenor Nagi A. Alziam's damages should be limited based on after-acquired evidence of misconduct by him.

Plaintiff EEOC counter moves for summary judgment,³ arguing that there is undisputed evidence of discriminatory profiling and pretext. See EEOC's Counter Motion for Summary. Judgment, or in the Alternative, Opposition to All Defendants' Motion for Summary Judgment (Jan. 25, 2008) ("EEOC Opp'n to Actual Discharge Motion"). In the alternative, Plaintiffs argue that there are genuine issues of material fact concerning the Title VII claims and that summary judgment is not warranted on their other claims. See id.; Plaintiffs-Intervenors' Memorandum Opposition to Defendant Norwegian Cruise Line America's Motion for Summary Judgment (Jan. 24, 2008) ("Plaintiffs-Intervenors Opp'n to Actual Discharge Motion").

The court denies in part and grants in part. Defendants' Actual Discharge Motion. The court concludes that (1) section 301 of the LMRA does not preempt Plaintiffs-Intervenors' IIED/NIED claims, but the NIED claims are barred by the absence of physical injury; (2) the collective bargaining agreement bars repatriation damages; and (3) Defendants have demonstrated that they would have terminated Alziam based on after-acquired evidence. Issues of fact preclude summary judgment or Pall other claims. The EEOC's counter motion is denied in its entirety.

In conjunction with Defendants' motions for summary judgment, Defendants have also filed two separate motions for Rule 11 sanctions. First, Defendants argue that Plaintiffs-Intervenors failed to conduct a reasonable inquiry before filing their state tort claims because these claims are timebarred by Hawaii's two-year statute of limitations. See Defendants NCL America Inc., Norwegian Cruse Line Ltd., and NCL Corporation Ltd.'s Motion for Rule 11 Sanctions Against Plaintiff-Intervenors and/or Their Counsel (Nov. 27, 2007) ("Motion for Rule 11 Sanctions Against Plaintiffs-Intervenors") at 5. In, their second motion for Rule 11 sanctions, Defendants contend that "sanctions are warranted because the EEOC's and Intervenors' religious discrimination claims are not based on reasonable inquiry and lack evidentiary support." Defendants NCL America Inc., Norwegian Cruise Line Ltd., and NCL Corporation Ltd.'s Motion for Rule 11 Sanctions Against U.S. Equal Employment Opportunity Commission and/or its Counsel and Plaintiff-Intervenors and/or Their Counsel (Nov. 27, 2007) ("Motion for Rule 11 Sanctions Against Plaintiffs") at 6. As Defendants are not the prevailing parties on their underlying motions for summary judgment, the court denies Defendants' motions for Rule 11 sanctions.⁴

II. BACKGROUND FACTS.

The factual background of this case was summarized in this court's previous order. See Feb. 1, 2008, Order at 9-13. Those facts are incorporated into this order and supplemented as necessary.

From June to July 2004, Plaintiff's-Intervenors worked on NCL America's cruise ship, the Pride of Aloha. Ex. 15 (attached to Actual Discharge Motion). Two unions — the Seafarers International Union ("Sal") and the Seafarers Entertainment and Allied Trades Union ("SEATU") — represented the various employment positions that Plaintiffs-Intervenors held. Declaration of Fay Rawles-Schoch (Nov. 27, 2007)("Rawles-Schoch Decl.") at ¶ 5. SIU and SEATU each has its own collective bargaining agreement ("CBA"), and these CBAs address hiring policies, equal opportunity, terminations, and repatriation. See Exs. 16, 17 (attached to Actual Discharge Motion).

Between July 12 and July 18, 2004, Pride of Aloha employee Eric Tedtaotao allegedly observed a Middle Eastern coworker appear angry, make disparaging remarks about Americans, state that he would be joined by friends soon, and ask about restricted areas of the ship. Deposition of Eric Tedtaotao (Mar. 17, 2007) ("Tedtaotao Dep.") at 61-75.

On July 18, 2004, allegedly alarmed by this behavior, Tedtaotao reported his observations to Safety Manager Alejandro Mercado and encouraged Mercado to look into the Middle Eastern, employees. Id. at 107-08; Deposition of Alejandro Mercado (Nov. 6, 2007) ("Mercado Dep.") at 69-70. Shortly thereafter, Tedtaotao resigned. Mercado Dep. at 70. Allegedly concerned by the questions regarding the ship's restricted areas, Mercado reported the matter to Surveillance Manager Miguel Pilgram. Id. at 80-81. Pilgram in turn gave the information to Security Officer James Conway and Staff Captain David Turner. Deposition of James Conway (May 14, 2007) ("Conway Dep.") at 78-79. Later on the evening he learned of the matter, Pilgram used the ship's computer system to search for Middle Eastern new hires and discovered that two Plaintiffs-Intervenors — Nagi Alziam and Muthana Shaibimatched this description. Deposition of Miguel Pilgram (Nov....