The opinion of the court was delivered by: Alan C. Kay Sr. United States District Judge
ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT PROCEDURAL BACKGROUND
On August 11, 2010, Plaintiff Elizabeth-Ann K. Motoyama ("Plaintiff"), appearing pro se,*fn1 filed a complaint against the Hawaii Department of Transportation ("HDOT"), alleging employment discrimination. On August 15, 2011, Plaintiff filed a Second Amended Complaint ("SAC") against the HDOT and Glen Okimoto, in his official capacity as current Director of the HDOT (together, "Defendants"). Doc. No. 56. The Second Amended Complaint asserts claims of unlawful retaliation under 42 U.S.C. § 2000e, et seq. ("Title VII") (Count I), disability discrimination under the ADA (Count II), and violation of the Equal Protection Clause of the U.S. Constitution (Count III). SAC ¶¶ 153-65. Plaintiff seeks, inter alia, special, general, and consequential damages, back and front pay, lost employment benefits, and reinstatement to her position. Id. Prayer for Relief.
On November 28, 2011, Defendants filed a motion for summary judgment ("Defs.' Mot."). Doc. No. 81. The Motion was accompanied by a memorandum in support ("Defs.' Mot. Mem."), a concise statement of facts, Declarations of Lisa Dau, Melanie Martin, Ben Gorospe, Maria C. Cook, and exhibits A-KK. Doc. Nos. 81-83. The next day, Defendants filed an amended concise statement of facts ("Defs.' CSF"). Doc. No. 85. On March 6, 2012, Plaintiff filed an opposition to Defendants' Motion ("Pl.'s Opp'n") and an opposition to Defendants' CSF ("Pl.'s CSF"). Doc. Nos. 105 & 106. On March 7, 2006, Plaintiff filed exhibits A-V, and declarations of Hui-Hsiang Hsu, Jessica L. Kepilino, Karl K. Motoyama, and Plaintiff. Doc. No. 107. On March 13, 2012, Defendants filed a reply ("Defs.' Reply"), which was accompanied by exhibits MM-PP. Doc. No. 108. The Court held a hearing on Defendants' Motion on March 27, 2012.
On September 18, 2007, the HDOT hired Plaintiff as an Equal Employment Opportunity ("EEO") Specialist for the Office of Civil Rights ("OCR").*fn3 Defs.' Mot. Mem. 3. Plaintiff was injured in a motor vehicle accident shortly thereafter and was on extended leave for medical reasons from October 4, 2007, through January 7, 2008. The injuries resulted in substantially limiting Plaintiff's mobility. SAC ¶ 32.
I. Plaintiff's Requested Accommodations
Plaintiff asserts that while on medical leave, she contacted Ben Gorospe, the ADA Specialist in the HDOT's OCR, to inquire about reasonable accommodations under the ADA. SAC ¶ 33. Specifically, Plaintiff asked about access to an accessible restroom and a parking space in close proximity to her office.
Id. According to Plaintiff, Gorospe told her that a nearby parking space was "not available," and that the first floor restroom, the same floor where Plaintiff's office is located, could not be fitted to become compliant with ADA accessibility. Id. ¶ 35. He told her that she could use the restroom on the third floor, which is ADA compliant. Id. Plaintiff asserts Domingo also told her the first floor restrooms could not be ADA-fitted. Id. ¶¶ 38-39.
On April 23, 2008, Plaintiff submitted a Report of Work Capabilities, prepared by Dr. Joseph DiCostanzo, to her supervisor, Rey Domingo, that stated Plaintiff should be permitted a flexible schedule to complete a full eight-hour workday due to the extra time needed to travel to the restroom. Defs.' Mot. Exs. G & I. Domingo asserts that Plaintiff was granted the flex time between April 23 and April 28. Defs.' Mot. Declaration of Rey Domingo ("Domingo Declaration") ¶ 10. According to Plaintiff, Domingo did not grant morning flex-time until June 27, 2008, but "denied extended time in the afternoons by openly complaining and on occasion, instructing her to go home prior to the end of an eight hour work day." Pl.'s CSF ¶ 14.
On April 28, 2008, Plaintiff sent a memorandum to her co-workers, Melanie Martin and Gorospe, who were acting supervisors during Domingo's absence, with a list of her physical injuries and the Report of Work Capabilities attached. Defs.' Mot. Ex. I. In the memorandum, she stated that she would like to call Martin and Gorospe's attention to provisions which might affect their supervision and work day schedule. Id. Particularly, she explained that "even if I start work at 7:45 am, due to my restroom travels and Vertigo, I will need additional time beyond 4:30 pm to put in an eight-hour work day," and "I have actually been doing that on certain days in the past; however, it is now officially an accommodation for my disability." Id.
In April 2008, Domingo provided Plaintiff with a parking accommodation request form, and Plaintiff returned the completed form to Domingo on May 2, 2008. SAC ¶ 40. Plaintiff was contacted by Lisa Dau, the Business Office ("BUS") Manager, who stated she handled the parking for the HDOT employees. Id.
¶ 41. Dau received Plaintiff's form and Report of Work Capabilities on May 2, 2008. Defs.' Mot. Declaration of Lisa Dau ("Dau Declaration") ¶ 5. The Report of Work Capabilities verified Plaintiff's accommodation was needed, but did not contain an identifiable period of time for the accommodation as required by regulation. Id. ¶ 6. On May 16, 2008, Dau received the necessary information from Plaintiff's treating physician. Id. On May 20, 2008, Dau approved Plaintiff's application. Id.
¶ 7. Because of the resurfacing of several parking lots, however, no parking was available at that time. Defs.' Mot. Mem.
5. Dau placed Plaintiff in the "Priority List" for a parking space, ahead of other employees who had been waiting for years. Id. A parking space became available on August 1, 2008, and on that day, Plaintiff was assigned a parking space behind the building where she worked.*fn4 Defs. Mot. Ex. R, at 28.
In an e-mail to Domingo dated July 22, 2008, and with the subject line "Confidentiality and Printers," Plaintiff requested a printer at her desk based on privacy concerns with others reading the documents she printed to the shared printer in the OCR office. See Defs.' Mot. Ex. M, at 1-2. Although not mentioned in her e-mail request, Plaintiff claims she also requested a personal printer because of the "difficulty she experienced repeatedly lifting herself out of her chair." Pl.'s Opp'n 16. Domingo asserts that Plaintiff did not ask for a printer as an accommodation, but only for privacy concerns. Domingo Declaration ¶ 12. He further declared that he did not grant her request "because there was no issue of privacy and confidentiality." Id.
Plaintiff submitted an updated accommodation request in February 10, 2009, stating that "[t]he main difference from last year" was a request for a computer glare screen, a leg rest, and a lumbar support cushion for her desk chair. Defs.' Mot. Ex. L. E-mails establish that on February 12, 2009, Plaintiff was given a leg rest and Domingo requested that a computer glare screen and lumbar support cushion be purchased for her. See Defs.' Mot. Ex. E, at 55-57. Plaintiff asserts that she received a broken leg rest, a broken glare screen that had to be taped in place, and never received the lumbar support cushion. Pl.'s Opp'n 17. Defendants submitted a declaration by Domingo that Plaintiff was given a computer glare screen, a foot rest, and a lumbar support cushion for her chair. Domingo Declaration ¶ 11.
II. Plaintiff's Investigation of Employee Complaints
Plaintiff's retaliation claims are based on her investigation of seven complaints by employees that she investigated as part of her job duties. Plaintiff's Title VII claims are based on five investigations and her ADA claims are based on two investigations.*fn5
A. Alleged Title VII Investigations
Plaintiff investigated two complaints filed by J.S. on September 14, 2007, and June 26, 2008, which was "a combination of whistle-blowing and a workplace violation." Defs.' Mot. Ex. D., Deposition of Motoyama ("Pl.'s Dep."), 44:5-9. Plaintiff made no findings or conclusions regarding this investigation because J.S. withdrew his complaints. Id. at 48:10-11, 12-23. She asserts that Administrative Services Officer Gerald Dang ignored her efforts to resolve the problem and "began to shun her." SAC ¶ 96.
In March 2008, Plaintiff was assigned to investigate a complaint in which H.H. alleged that another employee had sexually harassed her. Pl.'s Opp'n 22; Defs.' Ex. F, at 8. A settlement agreement between H.H. and the other employee resulted in H.H. closing her complaint. Pl.'s Opp'n 22. After the other employee allegedly breached the settlement agreement, H.H. returned to Plaintiff to file another complaint. Id. Plaintiff assisted H.H., with Domingo's permission, in writing her complaint due to H.H.'s difficulties with English. Id. Plaintiff "typed it out for [H.H.] for [Plaintiff's] purposes, for [Plaintiff's] file." Pl.'s Dep. 50:13-13. H.H. informed Plaintiff that she intended to file an EEOC Charge. Id. at 51:7-10. Upon H.H.'s request, and with permission of Domingo, Plaintiff allowed H.H. to take the statement Plaintiff wrote.
Id. at 51:14-20. "To [Plaintiff's] shock," H.H. used the typewritten statement as her EEOC charge. Id. at 53:4-12. Subsequently, at an OCR meeting, Martin "chastised [Plaintiff] for assisting [H.H.] and for advising her of her alternatives for filing a complaint." Pl.'s Opp'n 22.
In July 2008, C.D. filed a sexual harassment complaint against N.S. Defs.' Mot. Ex. F, at 9. Plaintiff asserts that this complaint was removed from her and "Domingo refused to intervene" to prevent the removal. Pl.'s Opp'n 24.
In April 2008, M.Y., a non-employee, filed a complaint, asserting that she was discriminated against based on her sex and marital status by the Materials Testing and Research Branch ("MTRB") when she was denied a research grant application.
Defs.' Mot. Ex. F, at 10. After investigation, Plaintiff found that M.Y. was not discriminated on the basis of gender or marital status, but that she did receive disparate treatment "due to a reason other than her membership in a protected class." Id. Plaintiff asserts that after she followed up on a settlement agreement with MTRB staff regarding this complaint, Domingo told her not to contact MTRB anymore. Id. at 10-11. Plaintiff asserts that "[t]his eroded [her] ability to have any respect or acknowledgment in the way of a response from MTRB." Id. at 11.
Plaintiff asserts that she handled a complaint M.E. filed for workplace violence and age discrimination against his supervisor. Pl.'s Opp'n 24. Plaintiff asserts that meetings regarding this complaint "proved futile," and that after Plaintiff was discharged, M.E. retired due to continuing harassment. Id.
B. Alleged ADA Discrimination Investigations
Plaintiff's ADA retaliation claim is partly based on her "taking the complaint allegations of [J.K.] on December 19, 2008." Defs.' Mot. Ex. F., at 9; see Pl.'s Opp'n 18-20. Plaintiff asserts that Dau retaliated against her for taking such allegations by having "the intake allegations taken away from [Plaintiff]." Defs.' Mot. Ex. F, at 9. J.K. eventually filed an EEOC Charge and a complaint in this district court. Id.
Plaintiff investigated a Disability, Age, National Origin, and Retaliation complaint that G.P. filed against the HDOT and individual Airport Division officials. Pl.'s Opp'n 20. Plaintiff contends that the Airports Division personnel did not cooperate and that G.P. later filed a complaint with the EEOC and in state court. Id.
III. Plaintiff's Termination
Beginning in April 2008, Plaintiff began to make complaints against her co-workers. Plaintiff's complaints included allegations that she witnessed a "physical exchange" between two female co-workers that she considered inappropriate and "bordering on offensive"; co-workers read her e-mails; Taylor and Taylor's friends made fun of Plaintiff; Gorospe kept track of the time Plaintiff arrived at work; Gorospe altered her electronic calendar; Domingo attempted to prohibit her from attending an ADA training; Dau discriminated against her and harassed her when she applied for a close parking stall; Martin improperly sent her home prior to the completion of an eight-hour workday; Martin misquoted Plaintiff; and Taylor told other HDOT employees that Plaintiff could not be trusted. Defs.' Mot. Ex. N, at 5-17.
The investigation of the complaints was assigned to Domingo and Francis Keeno, the Deputy Director of Administration for the HDOT. Id. On February 17, 2009, Domingo and Keeno held a meeting with Plaintiff to discuss her complaints. SAC ¶ 132. Plaintiff declined to withdraw her complaints and try to work out the issues with her co-workers on an informal basis, and thus the HDOT conducted an investigation into them. Domingo Dec. ¶ 16. Because Plaintiff asserted many complaints, Domingo and Keeno asked Plaintiff to provide a prioritized list of complaints, from most important to least important. Defs.' Mot. Ex. N, at 4. Plaintiff asserts that "[s]uspicious of Keeno's motives, [she] had great difficulty writing the mandatory list of complaints; therefore, at [her] request, the deadline for submitting this document was extended twice by Keeno." SAC ¶ 132. Plaintiff eventually responded to the request for a prioritized list of complaints with a nine-page letter dated March 20, 2009, and entitled "Complaint Statement." Id.
As a result of Plaintiff's complaints, four HDOT employees filed counter-complaints against Plaintiff, alleging that her complaints against them were patently false and that such false complaints constituted harassment. Defs.' Mot. Ex. N, at 3. These four employees were Dau, Martin, a Civil Rights Specialist VI within the OCR, Manida Taylor, an OCR secretary, and Gorospe. Id. at 5; see SAC ¶ 20. Keeno and Domingo also considered the counter-complaints in their investigation. Domingo Declaration ¶¶ 19-21. On March 4, 2009, the HDOT informed Plaintiff that it was placing her on Administrative Leave with pay, effective March 5, 2009, because the HDOT had determined that her continued presence in the office during the investigation would be disruptive and result in the possible loss of productivity and drop in employee morale. Defs.' Mot. Ex. N, at 5.
The investigation report concluded that there was no merit to Plaintiff's complaints. Id. at 17. Specifically, Plaintiff failed to substantiate many of her complaints with any evidence and none of her complaints with credible evidence. Id. The investigation report concluded that three of the four counter-complaints were meritorious and that Plaintiff knew or should have known that her complaints against Dau, Taylor, and Gorospe were clearly false and without merit. Defs.' Mot. Ex. N, at 21. The investigation report dismissed Martin's counter-complaint because the disagreement complained of was based on Plaintiff's opinion, unlike the other complaints based on facts, and thus did not need to be substantiated with evidence. Id.
The report recommended that the HDOT terminate Plaintiff based on the severity and egregiousness of the misconduct. Id. at 23. Specifically, the report stated the following considerations supported this recommendation: (1) Plaintiff abused the complaint process by submitting "absolutely no evidence to substantiate or corroborate her many complaints against her co-workers, and thus had turned the complaint process into "a form of legalized harassment"; (2) because Plaintiff, as an EEO Specialist, investigates complaints filed by others, she should have known better than to file complaints that are clearly false; (3) Plaintiff's credibility as an investigator has now been irreparably impugned; (4) Plaintiff's "acts of misconduct have had a tremendous negative impact on OCR," that she "has single-handedly brought morale down in OCR" and her misconduct has caused people to no longer want to work in OCR; (5) her misconduct has extended beyond OCR, involving BUS and CSS, HDOT's Highways Division, and other state employees outside of the HDOT; and (6) Plaintiff is a relatively new employee and this did not constitute a mitigating factor to mitigate against the recommendation for termination. Id. at 23-24.
By letter dated August 18, 2009, the HDOT Director, Glenn Okimoto, notified Plaintiff that she was terminated for misconduct because she made false complaints against her co-workers. Pl.'s Opp'n Ex. F.
IV. Plaintiff's EEOC Charges
After being placed on Administrative Leave, Plaintiff filed a discrimination charge on March 11, 2009, with the Equal Employment Opportunity Commission ("EEOC") and Hawaii Civil Rights Commission ("HCRC"), alleging disability discrimination and retaliation under the ADA and H.R.S. § 378-2, and retaliation for engaging in protected activity under Title II and H.R.S. § 378-2. Plaintiff's March 11, 2009 EEOC charge only mentioned her request for flex time that was not granted until June 2008, a request for parking that was not granted until August 2008, a request in November 2008 for a printer on her desk, and questioning by Keeno in July 2008 about her using the restrooms on the 2nd and 3rd floors "in a confrontational manner."*fn6
Defs.' Mot. Ex. Q, at 1 & Ex. S, at 1-2.
On August 31, 2009, Plaintiff amended her EEOC charge to add her termination as another retaliation.*fn7 Defs.' Mot. Ex. S. She also added that she had been discriminated against for engaging in protected activity in violation of Title VII. Defs.' Mot. Ex. S. The EEOC dismissed her charges and issued Plaintiff a right to sue letter on May 17, 2010. SAC ¶ 17.
I. Summary Judgment Standard
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)).*fn8 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.*fn9 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).*fn10
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.*fn11 Accordingly, if "reasonable minds could differ as to the import of the evidence," summary judgment will be denied. Anderson, 477 U.S. at 250--51.
II. Special Considerations for a Pro Se Litigant
A pro se litigant's pleadings must be read more liberally than pleadings drafted by counsel. Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Wolfe v. Strankman, 392 F.3d 358, 362 (9th Cir. 2004). When a plaintiff proceeds pro se and technically violates a rule, the court should act with leniency toward the pro se litigant. Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986). However, "a pro se litigant is not excused from knowing the most basic pleading requirements." Am. Ass'n of Naturopathic Physicians v. Hayhurst, 227 F.3d 1104, 1107-08 (9th Cir. 2000). Moreover, "[p]ro se litigants must follow the same rules of procedure that govern other litigants." King v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987).
As a preliminary matter, Plaintiff asserts that the transcript of her deposition that Defendants submitted with their motion as exhibits D and E is an uncorrected and unsigned deposition which should not be given any weight. Pl.'s Opp'n 25.
She stated that she "made not less than 52 corrections to her deposition, and also discovered that many sentences and phrases were missing." Id. Defendants' counsel submitted an affidavit asserting that exhibits D and E are true and correct copies of Plaintiff's deposition. Defs.' Mot. Declaration of Maria C. Cook ¶¶ 7 & 8. With their reply, Defendants submitted a copy of a letter dated November 17, 2011, by Honolulu Reporting Services stating that Plaintiff had thirty days to come to their office and read, sign, and make any corrections to her deposition.
Defs.' Reply Ex. OO. The letter stated that if Plaintiff did "not complete the signature page and corrections within this time your deposition will be filed with the Court without your signature." Id. Defendants' submitted another portion of Plaintiff's deposition with its reply and their attorney again filed a declaration stating that the excerpt ...