Schwartz V City & County of Honolulu

MOTION for Summary Judgment Curtis E. Sherwood appearing for Defendant Honolulu, City & County of

D. Haw.November 15, 2016

- 1 - DONNA Y.L. LEONG, 3226 Corporation Counsel CURTIS E. SHERWOOD, 7851 Deputies Corporation Counsel City and County of Honolulu 530 South King Street, Room 110 Honolulu, Hawai‘i 96813 Telephone: (808) 768-5134 Facsimile: (808) 768-5105 Email: csherwood@honolulu.gov Attorney for Defendant CITY AND COUNTY OF HONOLULU IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I SHEFFIELD S.K.G.K. SCHWARTZ, Plaintiff, vs. CITY AND COUNTY OF HONOLULU, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. CV14-00527 HG/KJM DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION FOR SUMMARY JUDGMENT; MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGEMENT; CERTIFICATE OF SERVICE Trial Date: March 7, 2017 DEFENDANT CITY AND COUNTY OF HONOLULU’S MOTION FOR SUMMARY JUDGMENT Defendant CITY AND COUNTY OF HONOLULU (“City”), by its attorneys, Donna Y.L. Leong, Corporation Counsel, and Curtis E. Sherwood, Deputy Corporation Counsel, pursuant to Rule 56 of the Federal Rules of Civil Case 1:14-cv-00527-HG-KJM Document 43 Filed 11/15/16 Page 1 of 2 PageID #: 232 - 2 - Procedure, respectfully requests that the Court grant summary judgment in its favor with respect to all claims in the First Amended Complaint, filed on April 21, 2015. This Motion is made pursuant to Fed. R. Civ. P. 7 and 56 and Local Rules of Practice for the United States District Court for the District of Hawaii (LR) 7.9 and 56.1, the Memorandum of Law in Support the Motion, the Separate Concise Statement of Facts, the declarations and exhibits, and the record, files, and pleadings herein. DATED: Honolulu, Hawai‘i, November 15, 2016. DONNA Y. L. LEONG Corporation Counsel By: /s/ Curtis E. Sherwood CURTIS E. SHERWOOD Deputy Corporation Counsel Attorney for Defendant CITY AND COUNTY OF HONOLULU Case 1:14-cv-00527-HG-KJM Document 43 Filed 11/15/16 Page 2 of 2 PageID #: 233 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ................................................................................... ii I. INTRODUCTION............................................................................................ 1 II. BACKGROUND FACTS ................................................................................ 2 A. Complaint ............................................................................................. 2 B. The EEOC Found No Cause for Discrimination.................................. 2 C. First Amended Complaint .................................................................... 3 D. Undisputed Facts Elicited during Plaintiff’s Deposition ..................... 4 III. LEGAL STANDARDS .................................................................................... 5 A. Motions for Summary Judgment .......................................................... 5 IV. ARGUMENT ................................................................................................... 7 A. The City is Entitled to Summary Judgment in its Favor on Its ADA Claim ........................................................................................... 7 (1) Plaintiff Is Not an “Otherwise Qualified” Individual .................... 8 (2) Plaintiff Cannot Demonstrate that He Was Terminated Because of His Disability .............................................................. 9 (3) Plaintiff Did Not Make a Request for a Reasonable Accommodation ........................................................................... 12 B. The City is Entitled to Summary Judgment in Its Favor With Respect to Plaintiff’s Intentional Infliction of Emotional Distress Claim .................................................................................... 12 (1) Plaintiff Cannot Prove the Elements of IIED ............................. 12 (2) Plaintiff Cannot Demonstrate that Any City Employee Acted with Malice ...................................................................... 16 V. CONCLUSION .............................................................................................. 17 Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 1 of 21 PageID #: 234 ii TABLE OF AUTHORITIES Cases Alexander v. City & Cty. of Honolulu, 545 F. Supp. 2d 1122 (D. Haw. 2008) ........................................................... 16 Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S. Ct. 2505 (1986) .......................................................... 6, 7 Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ............................................................................ 7 Bhan v. NME Hosps., 929 F.2d 1404 (9th Cir. 1991) ...................................................................... 6, 7 Bragalone v. Kona Coast Resort Joint Venture, 866 F.Supp. 1285 (D. Haw. 1994) ........................................................... 14, 15 Cambron v. Starwood Vacation Ownership, Inc., 945 F.Supp.2d 1133 (D. Haw. May 9, 2013) ................................................... 9 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ......................................................................................... 5 Dunlea v. Dappen, 83 Haw. 28, 924 P.2d 196 (1996) .................................................................. 13 Enoka v. AIG Hawai'i Ins. Co., 128 P.3d 850 (Haw. 2006) ....................................................................... 13, 14 Fawkner v. Atlantis Submarines, Inc., 135 F.Supp.2d 1127 (D. Haw. 2001) ............................................................. 15 Hac v. Univ. of Hawai'i, 73 P.3d 46 (Haw. 2003) ................................................................................. 13 Ingle v. Liberty House, Inc., Civil No. 94-0787(3), 1995 WL 757746 (Haw. Cir. Ct. Oct. 12, 1995) ....... 14 Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551 (9th Cir. 1991) .......................................................................... 6 Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994) ............................................................................ 8 Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 2 of 21 PageID #: 235 iii Kahale v. ADT Auto. Servs., 2 F.Supp.2d 1295 (D. Haw. 1998) ................................................................. 15 Kennedy v. Applause, Inc., 90 F.3d 1477 (9th Cir. 1996) ........................................................................ 8, 9 Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 110 S. Ct. 3177 (1990) .............................................................. 6 Matsushita Elec. Indus. v. Zenith Radio Corp., 475 U.S. 574, 106 S. Ct. 1348 (1986) .......................................................... 5-6 McCormack v. City & County of Honolulu, 2011 U.S. Dist. LEXIS 45628, 2011 WL 280955 (D. Haw. Apr. 27, 2011) . 16 Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099 (9th Cir. 2000) .......................................................................... 6 Reed v. City & Cty. of Honolulu, 873 P.2d 98 (Haw. 1994) ............................................................................... 16 Ross v. Stouffer Hotel Co., 76 Haw. 454, 879 P.2d 1037 (1994) .............................................................. 14 Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 (9th Cir. 2012) .......................................................................... 8 Shoppe v. Gucci Am., 14 P.3d 1049 (Haw. 2000) ............................................................................. 15 Toyota Motor Mfg., Inc. v. Williams, 534 U.S. 184 (2002) ..................................................................................... 8, 9 Towse v. State, 647 P.2d 696 (Haw. 1982) ............................................................................. 16 Trammell v. Raytheon Missile Sys., 721 F.Supp.2d 876 (D. Ariz. 2010) ................................................................ 12 Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) .................................................................... 9, 10 Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 3 of 21 PageID #: 236 iv Statutes 29 U.S.C. § 794 (2012) ............................................................................................ 8 42 U.S.C. §§ 8-9 ..................................................................................................... 11 42 U.S.C. § 38.08a ................................................................................................. 11 42 U.S.C. § 12112(a) (2012) .................................................................................... 7 Rules Fed. R. Civ. P. 56 ..................................................................................................... 5 Secondary Authorities Restatement (Second) of Torts § 46 (1965) ........................................................... 13 Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 4 of 21 PageID #: 237 1 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI‘I SHEFFIELD S.K.G.K. SCHWARTZ, Plaintiff, vs. CITY AND COUNTY OF HONOLULU, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. CV14-00527 HG/KJM MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT MEMORANDUM OF LAW IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendant City and County of Honolulu (“City”) hereby moves this Honorable Court for an order granting summary judgment in its favor as to all claims found in Plaintiff Sheffield S.K.G.K. Schwartz’s (“Schwartz”) First Amended Complaint, filed on April 21, 2015 (“FAC”). See ECF No. 16. I. INTRODUCTION The evidence is uncontradicted that: (1) Plaintiff was a refuse collector for the City who called in sick from January 1, 2012 through May 1, 2012, (2) showing up to work is an essential job function of being a City refuse collector, (3) Plaintiff’s proffered reasons for missing work did not include that he had any kind of disability, (4) Plaintiff at no time (orally or in writing) submitted a request for an Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 5 of 21 PageID #: 238 2 accommodation of any kind, and (5) at no time did Plaintiff inform the City that he had a disability. Plaintiff’s ADA claim fails as a matter of law because: (1) Plaintiff is not an “otherwise qualified” individual, (2) Plaintiff cannot demonstrate that he was terminated because of his disability, and (3) Plaintiff did not make any request for a reasonable accommodation. Summary judgment is warranted as to Plaintiff’s Intentional Infliction of Emotional Distress Claim because: (1) Plaintiff cannot demonstrate any of the necessary elements of an IIED claim, and (2) no City employee acted with malice in terminating Plaintiff. II. BACKGROUND FACTS A. Complaint In a Complaint filed on November 19, 2014, Plaintiff alleged, inter alia, that the EEOC determined on August 21, 2014 that the City had discriminated against Plaintiff when it failed to provide an accommodation, and that Plaintiff was constructively discharged due to discrimination. See ECF NO. 1, at p.4, ¶19. B. The EEOC Found No Cause for Discrimination In Defendant City’s Rule 16 Scheduling Statement (ECF No. 14), filed on April 21, 2015, and again on June 12, 2015, at the Rule 16 Scheduling Conference, Defendant City’s Counsel informed Plaintiff’s Counsel and the Court that, in fact, the EEOC did not find that the City had discriminated against Plaintiff, but rather, the EEOC had adopted the findings of Hawaii Civil Rights Commission Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 6 of 21 PageID #: 239 3 (“HCRC”), which had recommended that the case be closed on the basis of no cause. See Declaration of Curtis Sherwood, ¶31. The HCRC letter setting forth its findings was dated July 28, 2014, and was addressed to Plaintiff, c/o Charles Brower, Plaintiff’s attorney in the instant case. See Exhibit “E”. C. First Amended Complaint In his First Amended Complaint, Plaintiff alleges that he was hired by the City in 1980 as a Sanitation Engineer in the Department of Environmental Services. See ECF No. 16, at p.2, ¶3. Plaintiff alleges that on or about October 18, 2012, Plaintiff was denied reasonable accommodation for his disability and was terminated from his position as a Sanitation Engineer. See ECF No. 16, p. 2, ¶4. Plaintiff alleges that from January 1, 2012 to May 1, 2012, Plaintiff was unable to work due to his disability. See ECF No. 16, at p.3, ¶9. Plaintiff alleges that he provided notes from his treating physician certifying that he was unable to work for medical reasons. See ECF No. 16, at p.3, ¶10. Plaintiff alleges that in September of 2012, he was informed that he was under investigation for an unauthorized leave of absence. See ECF No. 16, p.3, ¶11. He further alleges that on or about October 18, 2012, he was informed that he was terminated for the alleged unauthorized leave of absence. See ECF No. 16, p.3, ¶14. Plaintiff claims that he believes he was denied reasonable accommodation 1 If the City prevails on the instant motion, it intends to file a motion for costs and/or motion for sanctions. Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 7 of 21 PageID #: 240 4 and terminated because of his disability. See ECF No. 16, p.3, ¶15. The EEOC issued a right to sue letter on August 21, 2014. See ECF No. 16, p.2, ¶6. Despite having full knowledge that the EEOC made a finding of no discrimination, Plaintiff’s attorney alleged on behalf of Plaintiff in his FAC that “[t]he EEOC made a determination that the cause of discrimination was based on disability.” See ECF No. 16, p.2, ¶6. Plaintiff further alleged that “[t]he EEOC determined on August 21, 2014 that the Defendant had discriminated against Plaintiff when it failed to provide an accommodation, and that Plaintiff was constructively discharged due to discrimination.” See ECF No. 16, at ¶19. Plaintiff’s FAC advances the following two claims: (1) disability discrimination pursuant to the Americans with Disabilities Act of 1990 (Count I), and (2) Intentional Infliction of Emotional Distress (Count II). See ECF No. 16, at pp. 4-5. D. Undisputed Facts Elicited during Plaintiff’s Deposition At Plaintiff’s deposition, he admitted that showing up to work was necessary in order to perform the job of trash collector. See Schwartz Depo Transcript, attached as Exhibit “G”, at 97:23-25, 98:1-7. Plaintiff admitted that trash collectors have to show up to work to be able to collect people’s trash and dispose of it, and because you “gotta engineer the back because you’re controlling the hydraulics and the blade.” See Exhibit “G”, at 116:7-14. Prior to January 1, 2012 to May 1, 2012, Plaintiff had been disciplined for falsely taking funeral leave. See Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 8 of 21 PageID #: 241 5 Exhibit “G” at 11:17-20. Plaintiff acknowledged calling in sick on January 3, 2012 for back pain. See Exhibit “G”, at 153:6-13. Plaintiff admits that he was required to bring a doctor’s note in on the fifth day that you call in sick. See Exhibit “G”, at 157:20-22; 165:2-4. Plaintiff could not remember why he called out sick between January 3rd, 2012 and April 28, 2012. See Exhibit “G”, at 166:15-21. Plaintiff testified that he did not at any point tell the City that he had a disability. See Exhibit “G”, at 181:18-25, 182:1-7, 10-12, 16-22. III. LEGAL STANDARDS A. Motions for Summary Judgment. Pursuant to Rule 56(c) of the Federal Rules of Civil Procedure, summary judgment shall be granted when, viewing the facts in the light most favorable to the nonmoving party, (1) there is no genuine issue of material fact, and (2) the moving party is entitled to summary judgment as a matter of law. See Fed. R. Civ. P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548 (1986). The moving party bears the burden of showing that there is no material factual dispute. Therefore, the court must regard as true the opposing party's evidence, if supported by affidavits or other evidentiary material. Celotex, 477 U.S. at 324. The court must draw all reasonable inferences in favor of the party against whom summary judgment is sought. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 9 of 21 PageID #: 242 6 U.S. 574, 587, 106 S.Ct. 1348 (1986); Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). Material facts which would preclude entry of summary judgment are those which, under applicable substantive law, may affect the outcome of the case. The substantive law will identify which facts are material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505 (1986). Where the moving party does not bear the burden of proof on an issue at trial, the moving party may discharge its burden of production by either of two methods: The moving party may produce evidence negating an essential element of the nonmoving party's case, or, after suitable discovery, the moving party may show that the nonmoving party does not have enough evidence of an essential element of its claim or defense to carry its ultimate burden of persuasion at trial. Nissan Fire & Marine Ins. Co., Ltd., v. Fritz Cos., Inc., 210 F.3d 1099, 1106 (9th Cir. 2000). If the moving party discharges its burden by showing an absence of evidence to support an essential element of a claim or defense, it is not required to produce evidence showing the absence of a material fact on such issues, or to support its motion with evidence negating the non-moving party's claim. Id.; see also Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 885, 110 S.Ct. 3177 (1990); Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991). If the moving party shows an absence of evidence to support the nonmoving party's case, the burden then shifts Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 10 of 21 PageID #: 243 7 to the non-moving party to produce “specific evidence, through affidavits or admissible discovery material, to show that the dispute exists.” See Bhan, 929 F.2d at 1409. “'The mere existence of a scintilla of evidence in support of the non-moving party's position is not sufficient.' Factual disputes whose resolution would not affect the outcome of the suit are irrelevant to the consideration of a motion for summary judgment.” Anderson, 477 U.S. at 248, 106 S. Ct. 2505. In other words, “'summary judgment should be granted where the nonmoving party fails to offer evidence from which a reasonable jury could return a verdict in its favor.” Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912, 919 (9th Cir. 2001). IV. ARGUMENT A. The City Is Entitled to Summary Judgment in its Favor on Plaintiff’s ADA Claim The enforcement provision of Title I of the ADA, under which Plaintiff appears to bring suit, provides: No covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment. 42 U.S.C. § 12112(a). Thus, to state a prima facie case under the ADA, Plaintiff must show that (1) he is a disabled person within the meaning of the ADA; (2) he is a qualified Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 11 of 21 PageID #: 244 8 individual, meaning he can perform the essential functions of his job; and (3) Defendant ENV terminated him because of his disability. See Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir. 1996). (1) Plaintiff is not an “otherwise qualified” individual It is undisputed that regular attendance is an essential function of Plaintiff’s job as a refuse collector. See Exhibit “G”, at 97:23-25, 98:1-7, 116:7-14. Thus, summary judgment is warranted as a matter of law because the Ninth Circuit, as well as the majority of courts throughout the country that have addressed the issue have held that for those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. See Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 1237-1238 (9th Cir. 2012); see also Jackson v. Veterans Administration, 22 F.3d 277 (1994).2 In Jackson, plaintiff’s employment was terminated after only 2½ months because of excessive absenteeism. Plaintiff argued that his employer should have “reasonably accommodated” his disability (rheumatoid arthritis) by allowing more flexible working hours. The court rejected plaintiff’s arguments and granted summary judgment in favor of employer. The Jackson court emphatically concluded that because plaintiff was absent numerous times within the first few months of 2 Jackson involved an alleged violation of the Rehabilitation Act of 1973, 29 U.S.C. § 794. The court’s analysis of this federal statute is identical to other courts’ analysis of the ADA, as the ADA was patterned after the Rehabilitation Act. See Toyota Motor Mfg., Ky., Inc. v. Williams, 534 U.S. 184 (2002). Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 12 of 21 PageID #: 245 9 employment on a “sporadic, unpredictable basis, he could not fulfill this essential function of his employment, that of being present on the job.” Id. at 279 (citations omitted). Similarly, here, during the four (4) months that Plaintiff was absent from his job, he necessarily failed to perform the primary, essential function of the job of showing up on a consistent and predictable basis, and thus, summary judgment with respect to Plaintiff’s ADA claim is warranted on this basis. (2) Plaintiff Cannot Demonstrate that He Was Terminated Because of His Disability As discussed above, Plaintiff must demonstrate that the City terminated him because of his disability. See Kennedy v. Applause, 90 F.3d 1477, 1481 (9th Cir. 1996). In other words, there must be a causal connection between Plaintiff’s disability and his termination. See Cambron v. Starwood Vacation Ownership, Inc., 945 F.Supp.2d 1133 (D. Haw. May 9, 2013) (holding that a wrongful discharge claim fails where the plaintiff cannot show a causal connection between the alleged termination and a protected activity); see also Villarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002) (denying claims that the plaintiffs were terminated in retaliation for making complaints about the employer, where the evidence showed that the plaintiffs were actually terminated for misconduct, and not in retaliation for making complaints). Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 13 of 21 PageID #: 246 10 In the instant case, Plaintiff cannot prove that he was terminated because of his disability. Rather, the evidence shows that Plaintiff was terminated because Plaintiff called in sick for a four month period of time, giving varying non- disability reasons, and because he violated ENV’s attendance policies as well as the provisions of the Collective Bargaining Agreement. See Exhibits “A”, “B”, “C”, “D” and “G”; see also Declaration of David Shiraishi (“Dec. D. Shiraishi”) generally. The log for leave requests for Plaintiff, which Plaintiff did not dispute the accuracy of, demonstrate that Plaintiff called in sick, vacation, or emergency vacation from January 3, 2012 to April 20, 2012 for reasons including right side back pain, back sore, sick, flu, family, son, not feeling good, family, and child care. See Exhibit “G”. None of the entries reflect mental health issues and/or depression. See id.; see also Dec. D. Shiraishi at ¶29. Plaintiff had contacted David Shiraishi, the Administrative Services Officer of the City’s Environmental Services Division (“ESD”) in January 2012 because his “wife”, who Mr. Shiraishi suspected was Plaintiff’s girlfriend, was on a military deployment and thus Plaintiff was in charge of “babysitting.” See Dec. D. Shiraishi, at ¶17. Plaintiff was ultimately terminated not for any disability, but rather, for missing work for four months and violating various policies, i.e., Plaintiff had taken unauthorized leave for a four month period. See Dec. D. Shiraishi at ¶23; Exhibit “D”. Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 14 of 21 PageID #: 247 11 Unit 1, Section 38.08a of the Collective Bargaining Agreement allows a regular employee to be granted a leave of absence without pay to “recuperate from physical or mental illness provided for a leave of absence without pay of five (5) or more consecutive working days, an Employee shall submit a licensed physician’s certificate to substantiate the leave of absence without pay was due entirely to sickness. . .” See Exhibit “A”. Plaintiff acknowledges that employees are required to bring in a doctor’s note on the fifth day. See Exhibit “G”, at 157:20-22. However, the evidence demonstrates that, at the very least, Plaintiff’s absences were not entirely due to sickness. Plaintiff does not counter that he missed work days in order to “babysit,” nor does he deny telling David Shiraishi that he couldn’t get a doctor’s note because he was not sick. Indeed, Plaintiff cannot rebut evidence that Plaintiff’s leave of absence was entirely due to sickness because he can’t remember why he called out sick between January 3rd, 2012 and April 28, 2012. See Exhibit “G”, at 166:15-21. In addition, Section 8-9 of the Civil Service Rules, entitled “Unauthorized leave of absence,” requires that an employee who is absent from duty without proper authorization be placed on unauthorized leave of absence without pay (“LWOP”). See Exhibit “B”. // // // Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 15 of 21 PageID #: 248 12 3. Plaintiff Did Not Make a Request for a Reasonable Accommodation An employer’s duty to accommodate an employee’s disability is triggered by the employee’s request for a reasonable accommodation. See Trammell v. Raytheon Missile Systems, 721 F. Supp.2d 876, 879 (D. Ariz. 2010). At the very least, an employee must disclose his disability when requesting an accommodation. See id. The evidence shows that Plaintiff never submitted a request for accommodation. See Dec. D. Shiraishi at ¶18. Thus, summary judgment is warranted on this basis. In fact, Plaintiff’s testimony at his deposition demonstrates that he never told the City that he had a disability because he considered such information to be personal. See Exhibit “G”, at 181:18-25, 182:1- 7, 10-12, 16-22. Even if Plaintiff can demonstrate that he did request an accommodation after the fact, this is insufficient to create a genuine issue of material fact because “an employer’s duty to reasonably accommodate a disability is always prospective, and an employer is not required to excuse past misconduct.” See id. at 879. B. The City is Entitled to Summary Judgment in Its Favor with Respect to Plaintiff’s Intentional Infliction of Emotional Distress Claim (1) Plaintiff Cannot Demonstrate the Elements of IIED In order to establish an IIED claim, Plaintiff must show “‘(1) that the act allegedly causing the harm was intentional or reckless, (2) that the act was outrageous, and (3) that the act caused (4) extreme emotional distress to another.’” Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 16 of 21 PageID #: 249 13 Enoka v. AIG Haw. Ins. Co., 128 P.3d 850, 872 (Haw. 2006) (quoting Hac v.Univ. of Haw., 73 P.3d 46, 60-61 (Haw. 2003)). Here, Plaintiff’s IIED claim fails because Plaintiff is unable to show: 1) any intentional or reckless conduct causing harm; 2) any outrageous acts; or that 3) that such acts caused Plaintiff severe emotional distress. First, there was no intentional or reckless tortious conduct because, as discussed above, Plaintiff’s termination was based upon legitimate non- discriminatory and non-retaliatory employment reasons. Second, Plaintiff is unable to show any “outrageous” acts. The Hawaii Supreme Court, in Dunlea v. Dappen, 83 Haw. 28, 38, 924 P.2d 196, 206 (1996), defined the standard for “outrageous” conduct under a claim for IIED as follows: …In explaining the type of “outrageous” conduct that makes a claim for intentional infliction of emotional distress actionable, the Restatement (Second) of Torts states: It has not been enough that the defendant has acted with an intent which is tortuous or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by ‘malice,’ or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Generally, the case is one in which the recitation of the facts to an average member of the community would arouse her resentment against the actor, and lead him to exclaim ‘Outrageous!’. RESTATEMENT (SECOND) OF TORTS § 46 comt d. The Hawaii Supreme Court has also defined the term “outrageous” as conduct “without just cause or excuse and beyond all bounds of decency.” Enoka, Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 17 of 21 PageID #: 250 14 128 P.3d at 872. An IIED claim cannot be sustained by “threats, annoyances, petty oppressions, or other trivialities.” See Bragalone v. Kona Coast Resort Joint Venture, 866 F. Supp. 1285, 1294 (D. Haw. 1994). “[P]laintiffs must necessarily be expected and required to be hardened to a certain amount of rough language, and to occasional acts that are definitely inconsiderate and unkind.” RESTATEMENT (SECOND) OF TORTS § 46 cmt. d. Hawaii’s definition of outrageous conduct creates a very high standard of conduct in the employment context. See Ross v. Stouffer Hotel Co., 76 Hawai`i 454,465, 879 P.2d 1037, 1048 (Haw. 1994) (granting summary judgment for employer on employee’s IIED claim); Ingle v. Liberty House, Inc., Civil No. 94- 0787(3), 1995 WL 757746, at *4 (Haw. Cir. Ct. Oct. 12, 1995) (noting, “In Ross, the Hawaii Supreme Court recently has set an extremely high, standard for such a claim in the employment context[.]”). Under Hawai`i law, even termination alone is not sufficient to support an IIED claim; rather, what is necessary is a showing of something outrageous about the manner or process by which the termination was accomplished. As stated in Ingle, “[a]lthough intentional infliction claims frequently are asserted in connection with employee dismissals, recovery is rare.” Ingle, supra. This high standard remains true even where an employee alleges that a termination was the result of unlawful discrimination or retaliation. See Ross, 76 Hawai`i at 465 (termination based on alleged marital status discrimination was Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 18 of 21 PageID #: 251 15 insufficient to sustain IIED claim); Bragalone, 866 F.Supp. at 1294 (“firing an employee for what are seen as unfair reasons” was insufficient to sustain IIED claim) (citations omitted); see also Shoppe v. Gucci America, Inc., 14 P.3d 1049, 1068 (Haw. 2000) (employee’s complaints of termination based on age discrimination and of a “vicious” verbal attack, being yelled at, criticized for poor job performance, being singled out and told to wear more makeup because the employer was looking for a much younger look, and being chastised in front of other employees, was insufficient to create a genuine issue of fact of outrageousness). Here, the undisputed facts suggest that the City’s actions were not outrageous. Rather, Plaintiff was fired due to his unauthorized leave of absence. Even if the City were mistaken in firing Plaintiff, which it is not, such an action would not be outrageous under the circumstances of this case. Finally, Plaintiff cannot prove that he suffered the requisite degree of severe emotional distress. Mental distress can only be found ‘where a reasonable man…would be unable to adequately cope with the mental stress engendered by the circumstances of the case.” Kahale vs. ADT Automotive Services, Inc., 2 F.Supp.2d 1295, 1302 (1998) [citation omitted]; see also Fawkner vs.Atlantis Submarines, Inc., 135 F. Supp. 2d 1127, 1134-1135 (2001). There is no evidence of this in the instant case. // Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 19 of 21 PageID #: 252 16 (2) Plaintiff Cannot Demonstrate that Any City Employee Acted with Malice “[T]he State of Hawaii recognizes a respondeat superior theory for acts of agents of a municipality in regard to torts that an employee ‘maliciously’ commits in the scope of his authority.” See Alexander v. City & Cnty. of Honolulu, 545 F. Supp. 2d 1122, 1136 (D. Haw. 2008)(citation omitted); McCormack v. City & Cnty. of Honolulu, 2011 WL 280955, at *6 (D. Haw. 2011). Because no City employee acted with malice in terminating Plaintiff, the City is entitled to summary judgment with respect to Plaintiff’s IIED claim, which is a state law claim. See Dawkins, at 18-19 (“To overcome the officers’ conditional privilege, Plaintiff must prove that the officers acted with malice.”) If a government employee is immune from suit, the governmental employer is also immune from suit. Reed v. City & Cnty. of Honolulu, 873 P.2d 98, 107 (Haw. 1994). The conditional privilege immunizes the government officials from liability for tortious acts unless they were motivated by malice. Towse v. State, 647 P.2d 696, 702 (Haw. 1982). Such malice must be demonstrated by clear and convincing evidence. See id. There is absolutely no evidence that any City acted with malice in terminating Plaintiff, and thus the City is entitled to summary judgment with respect to this claim. // // Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 20 of 21 PageID #: 253 17 V. CONCLUSION Based on the foregoing, the City employee requests that an order granting summary judgment be entered in favor of the City, dismissing each and every claim asserted by Plaintiff in his First Amended Complaint. DATED: Honolulu, Hawai‘i, November 15, 2016. DONNA Y. L. LEONG Corporation Counsel By: /s/ Curtis E. Sherwood CURTIS E. SHERWOOD Deputy Corporation Counsel Attorney for Defendant CITY AND COUNTY OF HONOLULU Case 1:14-cv-00527-HG-KJM Document 43-1 Filed 11/15/16 Page 21 of 21 PageID #: 254 - 1 - IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I SHEFFIELD S.K.G.K. SCHWARTZ, Plaintiff, vs. CITY AND COUNTY OF HONOLULU, Defendant. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CIVIL NO. CV14-00527 HG/KJM CERTIFICATE OF SERVICE CERTIFICATE OF SERVICE I hereby certify that, on the date and by the methods of service noted below, a true and correct copy of the foregoing was served on the following at their last known address as shown below: Case 1:14-cv-00527-HG-KJM Document 43-2 Filed 11/15/16 Page 1 of 2 PageID #: 255 - 2 - Served Electronically through CM/ECF: CHARLES H. BROWER, ESQ. honlaw@lava.net 900 Fort Street, #1210 Honolulu, Hawaii 96813 MICHAEL P. HEALY, ESQ. healy.lawyer@hawaiiantel.net 1188 Bishop Street, Suite 3304 Honolulu, Hawaii 96813 Attorneys for Plaintiff DATED: Honolulu, Hawai‘i, November 15, 2016. DONNA Y. L. LEONG Corporation Counsel By: /s/ Curtis E. Sherwood CURTIS E. SHERWOOD Deputy Corporation Counsel Attorney for Defendant CITY AND COUNTY OF HONOLULU Case 1:14-cv-00527-HG-KJM Document 43-2 Filed 11/15/16 Page 2 of 2 PageID #: 256