The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On November 29, 2010, Ricky Turner ("Plaintiff"), an African-American, filed a complaint for employment discrimination against the Department of Education, State of Hawaii (the "DOE"), DOE Superintendent Patricia Hamamoto, Complex Area Superintendent Mary A. Correa, Ka'u High and Pahala Elementary School Principal Sharon Beck, and Behavior Counselor Cari Mestuzzi (collectively, "Defendants").*fn1 Doc. No. 1. The Complaint asserted a violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"). Id. On February 10, 2011, Defendants filed a Motion to Dismiss Complaint, alleging that Turner's suit was untimely because he filed his complaint more than 90 days after receiving a right-to-sue letter from the EEOC, which Defendants assert was sent to Plaintiff on October 29, 2008.
Doc. No. 11, at 2-3. Turner opposed the Motion to Dismiss, asserting that he did not receive the right-to-sue letter until September 2010. Doc. No. 17, at 3-4. On April 28, 2011, the Court denied the Motion to Dismiss because Plaintiff's receipt of the letter in 2008 was disputed and Defendants did not establish that receipt should be presumed. 2011 WL 1637333 (Doc. No. 23).
On July 5, 2011, Plaintiff filed a First Amended Complaint ("Am. Compl.").*fn2 Doc. No. 34. On August 31, 2011, Defendants filed a Motion for Summary Judgment ("Defendants' Motion"). Doc. No. 44. The Motion was accompanied by a supporting memorandum ("Defs.' Mot. Mem."), a concise statement of facts ("Defs.' CSF"), and several declarations and exhibits.*fn3 *fn4 Doc. Nos. 44 & 45. On January 31, 2012, Plaintiff filed a Declaration in Opposition ("Turner Declaration"), a response to Defendants' CSF ("Pl.'s CSF"), and Exhibits A & B.*fn5
Doc. Nos. 76-79. Due to counsel's alleged difficulty in filing exhibits electronically, Plaintiff's opposition ("Pl.'s Opp'n") and Exhibits C-F were filed one day late, on February 1, 2012. Doc. Nos. 80-82, 84; see Doc. No. 86.
Defendants filed a reply to Turner's Declaration on February 1, 2012. Doc. No. 83. On February 2, 2012, Defendants filed a supplement to their reply, requesting that the Court disregard Plaintiff's opposition because it was untimely. Doc. No. 85. On February 3, 2012, Plaintiff filed a motion requesting that the Court consider his opposition and exhibits filed one day late. Doc. No. 86. Plaintiff additionally requested that the Court consider his Exhibit "I," the deposition of Mestuzzi, which was attached to the motion. Id. On February 6, 2012, the Court granted Plaintiff's Motion. Doc. No. 87.
On February 21, 2012, the Court held a hearing on Defendants' Motion for Summary Judgment. At the hearing, the Court asked the parties to file supplemental memoranda on the applicability of the statute of limitations to Plaintiff's claims. On February 23, 2012, Defendants filed a supplemental memorandum ("Defs.' Supp. Mem."). Doc. No. 89. On February 24, 2012, Plaintiff filed a supplemental memorandum ("Pl.'s Supp. Mem."). Doc. No. 90.
Plaintiff's suit centers around his allegation that he was terminated from his position as a special education teacher at Ka'u High School on the island of Hawaii on account of his race. The events leading to Plaintiff's termination involve a field trip to Volcano National Park (the "field trip") on Friday, April 20, 2007, and his return to school without an attending student, "K.K."*fn7
K.K. began attending Ka'u High in March 2007. Pl.'s Opp'n 1. Before attending Ka'u, K.K. had been certified as a "504" student, a certification for general education students "that have some type of disability . . . that impairs their being able to access their learning in the classroom." See Doc. No. 86, at 8:15-21, 11:18-22 (Deposition of Cari Mestuzzi) ("Mestuzzi Deposition"). K.K.'s educational history revealed that she had a history of running away, cutting classes, and disruptive behavior. Id. at 11:23-12:17. Due to improvement in her behavior before transferring to Ka'u, her previous school had recommended decertifying her from the 504 program. Id. at 10:1-8. Based on this recommendation, her records, and comments from her guardian, the school apparently decertified K.K. at a meeting on April 12, 2007.*fn8
At the meeting, K.K. had expressed interest in going into construction. Id. at 15:4-5; see Defs.' Mot. Ex. D, 4-5. Consequently, Counselor Mestuzzi asked Plaintiff if K.K. could attend a construction expo field trip that Plaintiff had planned for April 17, 2007. Mestuzzi Deposition, at 15:4-11. Plaintiff did not know K.K. and Mestuzzi did not mention K.K.'s behavioral history or her recent 504 status to Plaintiff. Pl.'s CSF ¶ 5; see Pl.'s Opp'n 13. Because only three students signed up for the Construction Expo, Plaintiff cancelled the trip. Defs.' Mot. Ex. D., at 18. Plaintiff reported that he took the students to the Volcano National Park as a related work study field trip, and he received approval from school administration for the trip. Defs.' Mot. Ex. D., at 20; Pl.'s Opp'n 5.
While at the Volcano National Park, K.K. went to the bathroom and never returned. Pl.'s Opp'n 18. Turner and the other students unsuccessfully looked for K.K. for an hour, ate lunch, and then returned to school around 1:30 p.m. Defs.' Mot. Ex. D, at 6. Turner did not inform the park rangers, the school administration, or K.K.'s guardian that she was missing. Defs.' Mot. Mem. 14. Around 8:15 p.m. that night, K.K.'s guardian called Turner to inquire about K.K. because she had not returned home. See Defs.' Mot. Ex. D, at 4. After the phone call, Turner called the police to report that K.K. was missing. Id.
An investigation into the field trip incident was initiated by Defendant Correa and the investigation was assigned to Vice Principal Bertilacci. Defs.' Mot. Mem. 2-3. Upon investigation, Turner admitted that he left the park without K.K. and did not immediately report her missing. Defs.' CSF ¶ 2; Defs.' Mot. Ex. D, at 3. Turner asserted that he did so because he believed that K.K. was 18 years old and he wanted to respect her adult decision. Defs.' Mot. Ex. D, at 3-4.
On July 18, 2007, Bertilacci completed the investigation report, which included multiple interview statements from witnesses and exhibits. Defs.' Mot. Mem. 3; see Defs.' Mot. Ex. D. The allegations against Plaintiff were that he acted inappropriately and violated Board of Education ("BOE") Policies by: (1) improperly allowing K.K. to participate in the field trip; (2) returning from the field trip without K.K.; and (3) failing to immediately report K.K. missing to school administration, K.K.'s guardian, or the proper authorities. Defs.' Mot. Ex. D., at 2.
In his investigation report, Bertilacci concluded that, more likely than not, Turner's field trip violated BOE Policy # 2250. Defs.' Mot. Ex. D, at 8. Policy # 2250 provides that: "Field Trips and travel shall be permitted only when the derived educational benefits are clearly linked to and support ongoing standards-based classroom studies. Schools shall be cognizant of the safety and welfare of all participants on field trips. . . ."
Id. at 14. The report concluded that evidence existed that indicated the field trip "did not possess derived educational benefits that are clearly linked to and support ongoing standards-based classroom studies." Id. at 8. He supported his conclusion with the facts that there was no indication any workplace readiness activities took place during the trip and K.K. stated the reason for the trip was fun, not work experience. Id. Bertilacci further concluded that there was sufficient evidence to indicate Plaintiff also violated the policy by failing to be cognizant of the safety and welfare of K.K. during the trip. Id. Specifically, "Teacher Turner's failure to act at very fundamental levels by informing National Park authorities, the Hawaii Police Department, or the administrators of Ka'u High School placed Student  in grave danger." Id.
Bertilacci further concluded that, more likely than not, Plaintiff violated BOE Policy # 4200. Id. at 10. Policy # 4200 provides that: "The [DOE] shall provide a caring environment conducive to the physical, mental, social, and emotional well-being of students while they are participating in school activities. Attention shall be given to the personal safety of each student during these activities. . . ." Id. at 16. Particularly, Plaintiff "assumed responsibility for safety and well being of students under his supervision during the Volcano National Park field trip . . . regardless of their age."
Id. at 9. Bertilacci concluded that Plaintiff violated this provision by returning to school without K.K. and failing to immediately report her missing. Id.
Finally, the report concluded that it is more probable than not that Plaintiff's conduct "was inappropriate so as to be considered misconduct." Id. at 10. This conclusion was supported by evidence that "demonstrate[d] that Teacher Turner failed to maintain procedures that foster a safe environment for students." Id.
By letter dated August 21, 2007, Principal Beck informed Plaintiff that after careful consideration of the investigation report and related information, "[b]ased upon the seriousness of your behavior, I am recommending disciplinary action that includes but may not be limited to suspension termination." Defs.' Mot. Ex. E, at 13. Beck submitted her recommendation to Complex Area Superintendent Correa.
By letter dated November 4, 2007, Correa recommended that Plaintiff be terminated. Id. at 25. Correa agreed that Turner's conduct with respect to the field trip violated Policy ## 2250 and 4200, and that he had acted inappropriately as to be construed as misconduct under DOE standards. Id. at 25-26. Correa stated that Plaintiff's purported justification of his actions -- that he thought student was 18 -- "has no merit and indicates that you failed to comprehend the seriousness of your action." Id. at 29. She explained that regardless of age, teachers have a responsibility to provide for the safety of students, and nonetheless, if it was another teacher or parent, she would expect Plaintiff to report the adult missing. Id. Correa also addressed Plaintiff's assertion that he did not call the school because he did not want K.K. to go to a home for troubled youth. Id. She explained that the decision to send a child to a juvenile facility is not within his scope and duties as a teacher, and his assumption and ultimate decision not to report K.K. missing "could have resulted in far more serious consequences." Id.
Correa submitted her recommendation for termination to Superintendent Hamamoto. Id. By letter dated January 4, 2008, Hamamoto informed Plaintiff that he was terminated from his position as teacher. Id. at 31. Her decision was based on a review of the relevant documents, as well as a review of the issues addressed by Plaintiff and his Union representative at a meeting with Hamamoto on November 21, 2007. Id. Hamamoto stated that "[a]s you have not demonstrated acceptance of your responsibility, it is appropriate that you be terminated." Id.
Plaintiff claims that five schools expressed interest in hiring him soon after his discharge, but that he was unable to secure a position because his personnel file had been labeled as "ineligible for hire." Id. ¶¶ 28-31.
III. The Grievance Process
On February 6, 2008, the Hawaii State Teachers Association, on behalf of Plaintiff, filed a grievance challenging his discharge with the DOE. Defs.' Mot. Mem. 4; Defs.' Mot. Ex. F. After four hearings, by letter dated June 5, 2008, Superintendent's Designated Representative, Susan La Vine, denied the grievance, finding that "termination was for just and proper cause." Defs.' Mot. Ex. F, at 1, 7.
On April 29, 2008, Plaintiff filed a Charge of Discrimination with the EEOC, asserting that he had been subjected to discrimination because of his race. Defs.' Mot. Ex. A, at 2. He stated that although he was placed on leave with pay pending an investigation into the field trip, "no disciplinary action was taken against the School Principal Sharon Beck (non-Black female) and non-Black I.E.P. team members for their failure to properly evaluate [K.K.] upon her transfer to school." Id. He further asserted that he was discharged without pay prior to having an opportunity to respond to the investigative findings. Id.
The EEOC denied the charges. Defs.' Mot. Ex. 2, at 1. According to Defendants, they sent Plaintiff a "Dismissal and Notice of Rights," also known as a "right-to-sue letter" on October 29, 2008. Defs.' Mot. Mem. 8. Plaintiff contends that the letter was not mailed via certified mail and there is no proof of its receipt. See Pl.'s CSF ¶ 7. On November 29, 2010, Plaintiff filed the instant action.
The purpose of summary judgment is to identify and dispose of factually unsupported claims and defenses. See Celotex Corp. v. Catrett, 477 U.S. 317, 323--24 (1986). Summary judgment is therefore appropriate if "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). "A party asserting that a fact cannot be or is genuinely disputed must support the assertion," and can do so in either of two ways: by "citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials"; or by "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)(1).
"A fact is 'material' when, under the governing substantive law, it could affect the outcome of the case. A 'genuine issue' of material fact arises if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Thrifty Oil Co. v. Bank of Am. Nat'l Trust & Sav. Ass'n, 322 F.3d 1039, 1046 (9th Cir. 2003) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).*fn9 Conversely, where the evidence could not lead a rational trier of fact to find for the nonmoving party, no genuine issue exists for trial. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing First Nat'l Bank v. Cities Serv. Co., 391 U.S. 253, 289 (1968)).
The moving party has the burden of persuading the court as to the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323; Miller v. Glenn Miller Prods., 454 F.3d 975, 987 (9th Cir. 2006). The moving party may do so with affirmative evidence or by "'showing'-that is, pointing out to the district court-that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.*fn10 Once the moving party satisfies its burden, the nonmoving party cannot simply rest on the pleadings or argue that any disagreement or "metaphysical doubt" about a material issue of fact precludes summary judgment. See Celotex, 477 U.S. at 324; Matsushita Elec., 475 U.S. at 586; Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987).*fn11
The nonmoving party must instead set forth "significant probative evidence" in support of its position. T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (quoting First Nat'l, 391 U.S. at 290). Summary judgment will thus be granted against a party who fails to demonstrate facts sufficient to establish an element essential to his case when that party will ultimately bear the burden of proof at trial. See Celotex, 477 U.S. at 322.
When evaluating a motion for summary judgment, the court must construe all evidence and reasonable inferences drawn therefrom in the light most favorable to the nonmoving party.
See T.W. Elec. Serv., 809 F.2d at 630--31.*fn12 Accordingly, if "reasonable minds could differ as to the import of the evidence," summary judgment will ...