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Thu Mong Tanaka, Daniel Peter Liashenko v. Department of Accounting and General Services

April 27, 2011


The opinion of the court was delivered by: Susan Oki Mollway Chief United States District Judge



Two former employees of the State of Hawaii's Department of Accounting and General Services assert employment discrimination and retaliation claims under Title VII.

Plaintiff Thu Mong Tanaka is a woman of Vietnamese descent who alleges that national origin and race discrimination caused her to be denied the option of choosing the shift she wanted in her Computer Operator III position. Plaintiff Daniel Peter Liashenko is a Caucasian man who alleges that race and gender discrimination caused him not to be promoted from his Computer Operator II position to a Computer Operator III position. Tanaka and Liashenko also both allege that Defendant Department of Accounting and General Services retaliated against them for filing complaints with the Hawaii Civil Rights Commission and the Equal Employment Opportunity Commission.

On December 15, 2010, the Department of Accounting and General Services filed motions for summary judgment against Tanaka and Liaskenko, respectively. This court grants in part and denies in part the motions for summary judgment.


Thu Mong Tanaka is a woman of Vietnamese descent who worked for the State of Hawaii for over thirty years. See Declaration of Thu Mong Tanaka ¶¶ 3, 9 ("Tanaka Decl.), ECF No. 47-1. Since 1997, Tanaka had been a Computer Operator for DAGS. See id. ¶ 17. Daniel Peter Liashenko is a Caucasian man who has been employed by the State of Hawaii since 2005. See Declaration of Daniel Peter Liashenko ¶ 17 ("Liashenko Decl.), ECF No. 46-1. Liashenko has been a Computer Operator II ("CO II") at the Department of Accounting and General Services ("DAGS") and later an Office Assistant at the Department of Commerce and Consumer Affairs. See id. ¶¶ 17, 58; Def. Mot. Summ. J. at 2, ECF No. 37.

In January 2006, DAGS advertised to fill a Computer Operator III ("CO III") position. The opening was offered only to existing Hawaii state employees. See ECF No. 47, Ex. I. Tanaka and Liashenko did not apply for this position. In September 2006, DAGS advertised two openings for Computer Operator III positions to Hawaii state personnel and external applicants. See ECF No. 47, Ex. J. The job description for the positions was the same as for the January 2006 opening except that the September 2006 opening added "Supervisor Experience/Aptitude" as part of the qualification requirements. See id. The Department of Human Resources Development ("DHRD") issued the recruitment notice and allegedly established the minimum requirements for the CO III positions. See id.; Reply at 12, ECF No. 51.

Ten individuals applied for the CO III positions advertised in September 2006, and DHRD determined that three applicants met the minimum qualifications. See Declaration of Diane Matsuura ¶ 6 ("Matsuura Decl."), ECF No. 37-4. On September 29, 2006, Tanaka, Liashenko, and Sandra Furumori interviewed for the positions. See id. ¶ 8. At the time, Tanaka and Liashenko were already DAGS employees. Furumori had previously worked for the State of Hawaii from 1976 to 1984, see Declaration of Sandra Furumori ¶ 3 ("Furumori Decl."), ECF No. 39-5, but in 2006 was employed at Saint Francis Medical Center, a private institution, as a Systems Administrator. See id. ¶ 2; Matsuura Decl. ¶ 7. The interview panel for the CO III positions consisted of four DAGS employees from the Production Services Branch: Chairperson and Supervisor Clifford Lucas, Computer Scheduler April Andrade, Supervisor Irene Ajitomi, and Supervisor Steve Nieto. See Matsuura Decl. ¶ 8.

During Liashenko's interview, Ajitomi, who was Liashenko's supervisor at the time, allegedly asked Liashenko a friendly leading question. See Matsuura Decl. ¶ 9. Ajitomi first asked Question #7: "Have you volunteered to help your leader operator or supervisor on your shift going beyond the position description of a computer operator? Give details." See id. After Liashenko responded, Ajitomi allegedly asked, "Didn't you update or keep documentation manuals and didn't you work on documentation updates?" See id. Ajitomi did not ask this follow-up question to Furumori or Tanaka. See id.

After the candidate interviews were completed, DAGS supervisors Glen Togashi and Elton Sumida expressed concern about the incident. Togashi was the Data Processing System Manager and Production Services Branch Chief of the Information and Communication Services Division ("ICSD"). See Matsuura Decl. ¶¶ 4, 19. Sumida was the Computer Operations Supervisor II of the Production Services Branch within ICSD. See Declaration of Elton Sumida ¶ 2 ("Sumida Decl."), ECF No. 51-3. Togashi and Sumida disqualified Ajitomi's interview scores for all three interviewees on the ground that Ajitomi had been biased toward Liashenko. See Matsuura Decl. ¶ 11. Ajitomi had given Liashenko a perfect interview score of "100." See id. ¶ 10. Togashi and Sumida said they were concerned about the rating because Liashenko had worked as a Computer Operator II for less than a year. See Sumida Decl. ¶ 10. The panel also chose to eliminate Question #7 and readjusted the other interviewers' scores to reflect that change. See id. ¶ 11.

The remaining three panel members unanimously rated Furumori as the top candidate and Tanaka as the second. See Matsuura Decl. ¶ 14. Disqualifying Ajitomi's scores did not affect the final ranking of the candidates. See id. ¶ 13. Furumori and Tanaka were accordingly chosen to fill the two CO III positions. Because Furumori was the top scoring candidate, she was given the first choice of work shifts; she chose the day shift over the night shift. See Tanaka Decl. ¶¶ 36, 40.

On October 23, 2006, Tanaka was informed that she had been selected for a CO III position and assigned the night shift. See Tanaka Decl. ¶ 36. On October 31, 2006, Liashenko received a letter from Togashi stating that he had not been selected for a position. See Liashenko Decl. ¶ 23. When Liashenko asked why he was not being offered a promotion, Togashi responded that Liashenko's average overall score was 202 out of a possible 300. See ECF No. 46, Ex. H.

Furumori started on the day shift in her new position on November 27, 2006; Tanaka started her night shift on November 28, 2006. See Tanaka Decl. ¶ 40.

On December 1, 2006, Lianshenko filed a complaint with the Hawaii Civil Rights Commission ("HCRC") and the Equal Employment Opportunity Commission ("EEOC") alleging race and gender discrimination based on the decision not to select him for either of the Computer Operator III positions. See ECF No. 46, Exs. J & K. On January 10, 2007, Tanaka filed her complaint alleging national origin discrimination with the HCRC and EEOC. See ECF No. 47, Exs. O & P. Tanaka based her charge of discrimination on the interview panel's decision to make Furumori the first selectee and on her assignment to a work shift she had not preferred. See id.

In March 2008, the EEOC determined that there was cause to believe that DAGS had discriminated against Tanaka on the basis of her national origin and against Liashenko on the basis of his race and gender. See ECF No. 37, Ex. F; ECF No. 39, Ex.

E. The EEOC stated that Elton Sumida may have "poisoned" the interview process. See ECF No. 39, Ex. G.

Before the September 2006 interviews, Sumida had allegedly informed Ajitomi that he believed Furumori should be hired as the CO III. See id. Sumida had also given Furumori a tour of the ICSD facilities in June 2006. See Tanaka Decl. ¶ 35; ECF No. 47, Ex. U. On May 28, 2008, and June 20, 2008, DAGS submitted a written request to the EEOC for reconsideration.

See ECF No. 46, Ex. S; ECF No. 47, Ex. T. The EEOC denied the request about a year later. See ECF No. 46, Ex. DD; ECF No. 48, Ex. FF.

After DAGS announced the results of the interview panel selections, the Hawaii Government Employees Association ("HGEA") submitted a grievance on behalf of Liashenko and challenged the selection process. See ECF No. 37, Ex. D. In 2008, the grievance went to a five-day arbitration. See Arbitration Decision & Award ("Arbitration"), ECF No. 37, Ex. C. Sumida, Togashi, and the four interview panel members all testified.

See id. On June 27, 2008, Arbitrator Gail Kang upheld Liashenko's nonselection because the interview process was "not unreasonable, arbitrary, or capricious." See Arbitration at 7. The Arbitrator also found that the interview questions were appropriate and the selection process not overly subjective. See id. at 7-10. She found that the evidence showed that Furumori was the most qualified candidate. See id. at 11.

Tanaka and Liashenko allege that DAGS retaliated against them for having filed discrimination complaints with the EEOC and HCRC. Liashenko notes that he was investigated for having allegedly left work early because he was ill, see ECF No. 37, Ex. M, and for allegedly having failed to perform his work properly. See Liashenko Decl. ¶¶ 47, 52. Liashenko states that DAGS was also retaliating against him in adopting a new policy requiring all employees to stay in the computer room until the end of their shifts. See Liashenko Decl. ¶ 53; ECF No. 46, Ex. JJ.

Tanaka and Liashenko allege that DAGS was retaliating against them in issuing a memo stating that the break room was off limits after shift turnovers. See Liashenko Decl. ¶ 55. A "turnover" involves the passing on of information from one shift to another. It may relate to a problem occurring on a shift or to unfinished tasks that continue to need attention on the next shift. See Opp'n at 4-5, ECF No. 45. On November 12, 2008, Furumori had issued a memorandum stating that Computer Operations Staff could use the break room after turnovers. See ECF No. 37, Ex. O. On December 8, 2008, Furumori allegedly entered the break room when Tanaka and Liashenko were the only other persons present. See Liashenko Decl. ¶ 56. On December 12, 2008, Furumori issued a new memo stating that the break room was off limits after turnovers. See id.; ECF No. 48, Ex. PP. As a result of these allegedly retaliatory events, Tanaka and Liashenko amended their complaints to the HCRC and EEOC to include retaliation claims. See ECF No. 46, Ex. HH; Tanaka Decl. ¶ 89.

In August 2009, Tanaka and Liashenko received reduction-in-force ("RIF") notices in which they were informed that their positions at DAGS were being abolished. See ECF No. 46, Ex. OO; ECF No. 48, Ex. UU. DAGS says that the RIF was carried out pursuant to the DHRD Policy and the applicable collective bargaining agreement for Bargaining Unit 03. See Second Matsuura Decl. ¶¶ 17-19, ECF No. 51-1. Tanaka and Liashenko claim that they had to complete the RIF/layoff application to seek other positions with DAGS. See Liashenko Decl. ¶ 58; Tanaka Decl. ¶ 103. Tanaka filled another CO III position, which she believes involving an exercise of her seniority right to "bump" her fellow employee, Benjamin Quimino, from his CO III position. See Tanaka Decl. ¶¶ 103, 104. In December 2009, Tanaka retired from DAGS after three years as a CO III. See Tanaka Decl. ¶ 118. Liashenko was assigned a new position as Office Assistant IV, which he claims is a demotion. See Liashenko Decl. ¶ 58. In late 2009, Tanaka and Liashenko received right-to-sue letters from the EEOC and the HCRC.*fn1

In their Complaint, Tanaka and Liashenko assert two claims for relief. In the first claim, Liashenko asserts race and gender discrimination, and Tanaka asserts national origin discrimination, all in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-1, and Hawaii Revised Statutes § 378-2(1). See Compl. ¶¶ 1, 32. In the second claim, Plaintiffs argue that DAGS retaliated against them for having filed discrimination charges with the EEOC and the HCRC. See id.

¶¶ 1, 33. On December 15, 2010, DAGS submitted separate summary judgment motions for each Plaintiff. On February 22, 2011, this court held a hearing on the motions for summary judgment, and continued the hearing on April 11, 2011, after receiving supplemental briefing.


Summary judgment shall be granted when "the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Accordingly, "[o]nly admissible evidence may be considered in deciding a motion for summary judgment." Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir. 2006).

Summary judgment must be granted against a party that fails to demonstrate facts that establish what will be an essential element at trial. See Celotex, 477 U.S. at 323. A moving party has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co., Ltd. v. Fritz Cos. Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls on the moving party to identify for the court "the portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact." T.W. Elec. Serv., Inc. v. Pac.

Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323); accord Miller, 454 F.3d at 987. "A fact is material if it could affect the outcome of the suit under the governing substantive law." Miller, 454 F.3d at 987.

When the moving party fails to carry its initial burden of production, "the nonmoving party has no obligation to produce anything." In such a case, the nonmoving party may defeat the motion for summary judgment without producing anything. Nissan Fire, 210 F.3d at 1102-03. On the other hand, when the moving party meets its initial burden on a summary judgment motion, the "burden then shifts to the nonmoving party to establish, beyond the pleadings, that there is a genuine issue for trial." Miller, 454 F.3d at 987. This means that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted). The nonmoving party may not rely on the mere allegations in the pleadings and instead "must set forth specific facts showing that there is a genuine issue for trial." Porter v. Cal. Dep't of Corrs., 419 F.3d 885, 891 (9th Cir. 2005) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). "A genuine dispute arises if the evidence is such that a reasonable jury could return a ...

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