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Robert M. Clemmons v. Hawaii Medical Services Association

December 29, 2011


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



On September 2, 2010, Plaintiff Robert M. Clemmons

("Clemmons") filed a complaint against Defendants Hawaii Medical Services Association ("HMSA"), Kuhio Medical Center ("KMC"), Hawaii Family Medical Centers ("HFMC"), Integrated Services, Inc. ("ISI"), and Diane Kent ("Kent") (collectively "Defendants"),*fn1 alleging gender and race discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17 ("Title VII"), breach of contract, and negligence. Clemmons alleges that the staff at KMC discriminated against him because of his gender and race and that he suffered retaliation because of complaints he made to supervisors. Conversely, Defendants contend that Clemmons cannot prove a prima facie case of discrimination and that Clemmons was terminated because of patient complaints and a breach of patient confidentiality.

The court previously dismissed Clemmons's claim for negligence and struck references in his Complaint to age and national origin discrimination. See Order Granting Motion to Dismiss, ECF No. 32. Defendants now move for summary judgment against Clemmons on all remaining claims. For the reasons discussed herein, the motion is GRANTED.


Clemmons is a Caucasian male who was 55 years old at

the time he resigned in lieu of being fired in 2009. Beginning in August 1993, Clemmons was employed by HFMC at KMC on the island of Kauai, State of Hawaii. See Compl. ¶ 2, ECF No. 1. HFMC is a wholly owned ISI subsidiary. ISI is a wholly owned HMSA subsidiary. Clemmons alleges that he was constructively discharged on or about April 8, 2009. Id. at ¶¶ 1-2, 24.

Clemmons suffers from macular degeneration in both eyes. Id. at ¶ 4. This disability, he alleges, did not impair his ability to perform his duties. Id.

Clemmons alleges that, while employed at KMC as a radiology technician, he was "subjected to constant verbal harassment and derogatory comments" from female, nonwhite clinic staff regarding his gender, race, marital status, and disability. Id. at ¶ 2. He also alleges that he was treated differently by being required to perform menial tasks not requested of female employees, such as cleaning up bathroom messes or carrying boxes from a manager's car. Id. Clemmons alleges that he nevertheless received regular salary increases and favorable employment reviews until Kent became his manager. Id. at ¶ 13.

According to Clemmons, upon becoming his manager at some unstated time, Kent "increased the pattern of discriminatory conduct." Id. at ¶ 2. Clemmons alleges that Kent reduced Clemmons's scheduled annual pay raise even though there was no problem with his employment, while not reducing female, nonwhite employees' pay raises. Id. at ¶ 20. Clemmons alleges that Kent denied pay to Clemmons for overtime work, altered his overtime cards, and made it difficult in various other ways for him to obtain overtime, while not doing the same to female, nonwhite employees. Id. at ¶ 21.

Clemmons says that Kent told him in front of other employees that he was not as smart or experienced as the female, nonwhite employees and that he would always be an outsider. Id. at ¶ 2. He alleges that Kent also made derogatory remarks in front of employees and patients about Clemmons's disability, his ability to see, and the effect of his disability on his ability to work. Id. at ¶ 23. According to Clemmons, Kent told him to "come up to our level," which he interpreted to mean the level of nonwhites. See Decl. of Robert M. Clemmons In Supp. Of His Opp'n To Def.'s Mot. For Summ. J. ("Clemmons Decl.") ¶ 20, ECF No. 93.

Clemmons alleges that Kent sexually harassed him by making inappropriate comments regarding his marital status and his wife and by sitting uncomfortably close to him. Compl. ¶ 22, ECF No. 1. For example, he alleges that Kent "jealous[ly] . . . degrad[ed] him for politely saying goodbye to a departing female intern." Id. at ¶ 26.

According to Clemmons, he complained to HMSA management about Kent's inappropriate conduct. He alleges that Kent retaliated by excluding him from company activities, falsely accusing him of sexually harassing female patients, and, ultimately, setting Clemmons up so he would be forced to resign. Id. at ¶¶ 2-3, 25.

Clemmons alleges that he complained about Muriah Aquino, the head nurse, who was also supervised by Kent. Clemmons stated that on March 20, 2009, Aquino yelled at him in front of two patients that his "eyes are junk" and that he "mixed up the patient orders again[.]" See Clemmons Decl. at ¶ 31, ECF No. 93. Clemmons then complained to Kent about Aquino's behavior, but Kent allegedly took no action. Id. Clemmons filed a complaint with the State of Hawaii Regulated Industries Complaint Office ("RICO"), which looked into the matter but was unable to assist because his complaint did not involve a violation of licensing laws. See Exhibit "6" to Clemmons Decl., ECF No. 95-3. The RICO investigator noted that Clemmons had not filed a complaint with Kent or KMC and suggested that he might want to consider filing a complaint with KMC. Id.

Two complaints by patients about Clemmons preceded his termination. On January 5, 2009, a female patient complained that Clemmons had made her uncomfortable by taking an excessive amount of time feeling her chest area, then asking her "how[] [she got] that body" and if she practiced yoga. See Defs. Hawaii Medical Service Association, Hawaii Family Medical Centers, And Integrated Services, Inc.'s Mot. For Summ. J. As To Pl.'s Claims In Counts I, II And III Of The Compl. 3, Aug. 17, 2011, ECF No. 51 ("Motion"). After the examination, Clemmons allegedly approached her in the waiting room, asked her again about her body, and asked her if she was married. Id. at 3-4. HMSA's human resources department investigated that incident and credited the patient's account over Clemmons's account. Id. at

4. Defendants gave Clemmons a warning on February 26, 2009, and implemented a new policy requiring Clemmons to present female patients with a flyer explaining the x-ray procedure and requiring the presence of a female employee if necessary. See Clemmons Decl. at ¶ 28, ECF No. 93.

On March 23, 2009, a second female patient complained to Defendants about Clemmons. The patient claimed that when she hesitated to undress for an x-ray, Clemmons "went ballistic" and ran in and out of the x-ray room. See Motion at 5, ECF No. 51. Clemmons claimed that he sought assistance from female employees to chaperone the x-ray in accordance with the new policy. See Clemmons Decl. at ¶ 33, ECF No. 93. The patient became uncomfortable and left without completing her x-ray. See Motion at 5-6, ECF No. 51. Shortly thereafter, Clemmons reviewed the patient's personal records to retrieve her telephone number and called her home to provide his version of the events. Id. at 6. Defendants say that the patient became scared and disturbed and notified them on April 2, 2009. Id. Defendants again investigated the complaint and concluded that Clemmons had engaged in inappropriate behavior, including violating the patient's privacy. Id. at 6-7. Clemmons claimed that he believed that he accessed the records for a proper business purpose. Id. at 7. Citing the complaints, the assessment that the inappropriate behavior was likely to continue, and Clemmons's failure to accept any responsibility for the events, HMSA decided to terminate Clemmons's employment. Id. at 7-8. On April 8, 2009, Clemmons was told that he would be terminated as a result of the incident(s), or that he could resign. Id. at 8. Clemmons resigned. Id.

Clemmons asserts claims for racial and gender discrimination in violation of Title VII. Compl. ¶¶ 30-48, ECF No. 1. Additionally, Clemmons asserts common law claims for breach of contract and promissory estoppel. Id. at ¶¶ 49-60. Clemmons seeks a declaratory judgment and an injunction granting reinstatement, as well as back pay, benefits, compensatory damages, punitive damages, and attorneys' fees. Id. at 20.


Summary judgment shall be granted when "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a) (2010). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position that a material fact is or is not genuinely disputed by either "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials"; or "showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." 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).

Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--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., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls upon the moving party to identify for the court those "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). "When the moving party has carried its burden under Rule 56(c), its opponent 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." T.W. Elec. Serv., Inc., 809 F.2d at 630 (quotation omitted). At least some "'significant probative evidence tending to support the complaint'" must be produced. Id. (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). See Addisu, 198 F.3d at 1134 ("A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact."). "[I]f the factual context makes the non-moving party's claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." Cal. Arch'l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 ("There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").

All evidence and inferences must be construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When "direct evidence" produced by the moving party conflicts with "direct evidence" produced by the party opposing summary judgment, "the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact." Id.


Clemmons's remaining claims allege (1) race discrimination under Title VII, (2) gender discrimination under Title VII, and (3) breach of contract and/or promissory estoppel. Because Clemmons fails to make the requisite factual showing to support his claims, the court grants summary judgment in favor of Defendants.

A. Clemmons's Claims Of Discrimination Based On Occurrences Before March 10, 2009, Are Time-Barred.

Before considering Clemmons's substantive claims, the court addresses Defendants' argument that the statute of limitations bars any claims arising out of events that occurred over 300 days before the filing of the charge with the Equal Employment Opportunity Commission ("EEOC") and Hawaii Civil Rights Commission ("HCRC"). "Title VII contains several distinct filing requirements which a claimant must comply with in bringing a civil action." Valenzuela v. Kraft, Inc., 801 F.2d 1170, 1172 (9th Cir. 1986), as amended by 815 F.2d 570 (9th Cir. 1987). A plaintiff must first exhaust administrative remedies before bringing a Title VII claim in this court. Sommatino v. United States, 255 F.3d 704, 707 (9th Cir. 2001). A plaintiff does this by filing a charge with the EEOC. When a person also files a charge with a state or local agency, the EEOC charge must be filed "within three hundred days after the alleged unlawful employment practice occurred." 42 U.S.C. § 2000e-5(e)(1) (2009). See EEOC v. Dinuba Med. Clinic, 222 F.3d 580, 585 (9th Cir. 2000) ("Although ordinarily the administrative charge must be filed within 180 days of the alleged unlawful employment practice, the deadline is extended to 300 days if the charge is initially filed with a state agency that enforces its own anti-discrimination laws."). This period is not jurisdictional; instead, it is a statute of limitations. See Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393 (1982) ("We hold that filing a timely charge of discrimination with the EEOC is not a jurisdictional prerequisite to suit in federal court, but a requirement that, like a statute of limitations, is subject to waiver, estoppel, and equitable tolling.").

Clemmons filed his charge with the EEOC and the HCRC on or around January 4, 2010.*fn2 See Compl. ¶ 16. Three hundred days before January 4, 2010, is March 10, 2009. Accordingly, any "alleged unlawful employment practice" occurring before March 10, 2009, is time-barred.

In their motion, Defendants identify the adverse actions (other than his termination) alleged by Clemmons during his deposition testimony: (1) he was told to carry heavier objects; (2) he was told to change the water; and (3) he was told to "[c]lean up that mess, meaning when the toilet backs up." Motion at 11, 12 n.6, ECF No. 51. However, Clemmons admitted that these events occurred prior to February 26, 2009. See Pl. Dep. at 259:14-260:1, July 26, 2011, attached as Exhibit "A" to Defs.'s Concise Statement Of Facts In Support Of Mot. For Summ. J., Aug. 17, 2011, ECF No. 52-2. These events, having occurred prior to March 10, 2009, are beyond the 300-day statute of limitations and may not be the bases of Clemmons's claims in this case.

The court is unpersuaded by Clemmons's argument that ongoing harassment saves his untimely claims. First, the court notes that Clemmons does not contest that these alleged adverse actions would otherwise be barred by the statute of limitations. Second, Clemmons still does not allege any adverse action that falls within the 300-day period prior to the filing of this charge with the EEOC and HCRC. Third, Clemmons's assertion of a hostile work environment does not meet the test for establishing a prima facie claim. Notably, he does not allege ongoing "unlawful employment practices" within the 300-day period that evidence a hostile work environment.*fn3 See Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101 (2002).

As noted by the United States Supreme Court in Morgan, "[p]rovided that an act contributing to the claim occurs within the filing period, the entire time period of the hostile environment may be considered by a court for the purposes of determining liability." Id. at 117. In that case, an African-American railroad worker brought suit against his employer for racial discrimination. With respect to his claims for "discrete discriminatory acts," the Supreme Court held that they "are not actionable if time barred, even when they are related to acts allegedly in timely filed charges. . . . The charge, therefore, must be filed within the 180- or 300-day time period after the discrete discriminatory act occurred." Id. at 113. However, with regard to a hostile environment claim, which is "composed of a series of separate acts that collectively constitute one 'unlawful employment practice,'" id. at 117 (citing 42 U.S.C. § 2000e-5(e)(1)), the unlawful employment practice "occurs over a series of days or perhaps years and, in direct contrast to discrete acts, a single act of harassment may not be actionable on its own." Id. at 115 (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)). So long as one act that is a part of the continuing harassment falls within the 300-day period, all acts constituting the "unlawful employment practice" may be considered by the court. Id. at 117.*fn4

In this case, even reading the Complaint as including a hostile work environment claim, the court determines that the claim is barred by the applicable statute of limitations. Clemmons conceded in his deposition that the alleged harassment concluded by 2004, over five years prior to the filing of Clemmons's charge with the EEOC and HCRC. See Pl. Dep. at 259:14-260:1, ECF No. 52-2. While Clemmons's counsel argues that he was subjected to snide remarks and teasing after that time, he fails to provide admissible evidence of harassment occurring during the limitation period.

At the hearing on the subject motion, Clemmons argued that, even if the sexual harassment ceased in 2004, retaliatory harassment started around that time. When prompted by the court to identify any form of retaliation before March 10, 2009, that was not time-barred, Clemmons's counsel pointed to (1) statements from co-workers that he was "not as good as [they] are," which he believed implicated his sex and race,*fn5 (2) "outbursts" in 2007 and 2009 by Aquino regarding his eyesight, (3) Aquino's flirting with a male nurse and calling him "honey" in 2007, and (4) Kent's alleged whiting out of his overtime records in 2007. With the exception of Aquino's alleged outburst on March 20, 2009, discussed below, these acts occurred before March 10, 2009.*fn6

Clemmons needs to provide more than just a scintilla of evidence or evidence that is merely colorable to avoid summary judgment. He does not adequately link any of the events occurring before March 10, 2009, to any subsequent retaliation, such that the different events could be deemed one unlawful employment practice. Indeed, Clemmons does not show that the identified events were retaliatory at all such that, tied to more recent events, they could together be deemed what he calls "retaliatory harassment." In light of his failure to meet his burden of tying otherwise time-barred events to a timely retaliation claim, the court determines that events before March 10, 2009, may not serve as the basis for Clemmons's claims, as any such claims are time-barred.

B. Clemmons Fails To Raise Any Genuine Dispute Of Material Fact As To His Claim For Race And Gender Discrimination.

Title VII makes it illegal for an employer "to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. ยง 2000e-2(a)(1) (1991). To prevail on his Title VII claims, Clemmons must satisfy the ...

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