The opinion of the court was delivered by: Susan Oki Mollway United States District Judge
ORDER GRANTING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT
On May 8, 2012, Plaintiff Jacki Jura sued her former employer, the County of Maui; Benjamin M. Acob, in his official and individual capacities; and Marie J. Kosegarten, in her official and individual capacities (collectively, "Defendants"). At all times relevant to this lawsuit, Jura was a Deputy Prosecuting Attorney for the County of Maui, Acob was the Chief Prosecuting Attorney for the County of Maui, and Kosegarten was the District Court Supervisor within the Department of the Prosecuting Attorney for the County of Maui. See Am. Compl.
¶¶ 2-4, 10, ECF No. 50. Jura asserts three claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-1 to -17, against the County: (1) Pregnancy Discrimination, (2) Sex Discrimination/Hostile Work Environment, and (3) Retaliation. Jura also asserts a claim against the County for: (4) Disability Discrimination pursuant to the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12300. See Am. Compl. ¶¶ 102-08, 109-34, 135-46, 147-61. In addition, Jura asserts two state law claims against all Defendants: (5) Discriminatory Practices, and (6) Sexual Harassment/Hostile Work Environment, both pursuant to chapter 378 of the Hawaii Revised Statutes against all Defendants. See Am. Compl. ¶¶ 162-68, 169-75. Finally, Jura asserts (7) Libel and/or Slander Per Se against Kosegarten only. See Am. Compl. ¶¶ 176-81.
Defendants now move for summary judgment on all counts. See Acob and County of Maui's Mot. for Summ. J., ECF No. 64; Kosegarten's Mot. for Summ. J., ECF No. 96. The court grants Defendants summary judgment on all claims.
Jura is an attorney who suffers from "severe bilateral hearing loss with no hearing in normal ranges." Am. Compl. ¶ 25; Jacki Jura's Concise Statement in Opp'n to Def.s' Mot. Summ. J. ("Plaintiff's Facts") ¶ 21, ECF No. 120. On or about December 1, 2006, Jura began working as a Deputy Prosecuting Attorney in Maui's Department of the Prosecuting Attorney (the "Prosecutor's Office"). Am. Compl. ¶ 10; Decl. of Benjamin Acob ("Acob Decl.") ¶ 3. Jura was initially assigned to the Appellate Division of the Prosecutor's Office. Am. Compl. ¶¶ 10-11; Acob Decl. ¶ 4. She says her supervisor in the Appellate Division was Richard Minatoya, although he denies that. Declaration of Richard Minatoya ¶ 3, ECF No. 95-2. Minatoya had such limited interaction with Jura that, when she went on medical leave for problems relating to her pregnancy in January 2007, he "was not aware she was pregnant until after she apparently had a miscarriage." Id.
Upon Jura's return to work in February 2007, Acob reassigned her to the District Court Division under Kosegarten's supervision. Acob Decl. ¶ 4. Jura worked in the District Court Division for approximately ten months before she was terminated. Acob Decl. ¶ 9. The Prosecutor's Office asserts it terminated Jura in December 2007 because of "severe performance problems." Def.'s Am. Mot. Summ. J., ECF No. 94. About a month before Jura was fired, Acob, in response to his requests for feedback, heard from at least two Maui District Court judges about Jura as he sought to evaluate the performances of his District Court Deputies. Acob Decl. ¶ 6. District Judges Rhonda Loo and Simone Polak*fn1 were critical of Jura's work in their courtrooms. Acob Decl. ¶ 7. See also Polak Decl., ECF. No. 95-3; Declaration of Rhonda I.L. Loo ("Loo Decl."), ECF. No. 95-4. While Judge Loo praised Jura as a "bulldog and fighter," she also noted that Jura "ha[d] difficulty listening and accepting suggestions/advice from judges." Loo Decl. ¶ 4. Judge Loo also criticized Jura for demonstrating "a lack of respect [by] ask[ing] the judge to look up the statutes/penalties for themselves and blam[ing] others when she is not prepared." Id. Judge Polak was even more critical, describing Jura and her appearances in court as "torture." Polak Decl. ¶ 4.
Acob met with Jura on December 6, 2007, to discuss the judges' complaints. Acob Decl. ¶ 7. Jura disputed the judges' allegations,*fn2 causing Acob to end their meeting and to contact Judges Loo and Polak. Id. Besides confirming their earlier reports, both judges offered additional negative feedback. Acob Decl. ¶ 8. Judge Loo recounted having "instructed Ms. Jura to file complaints in Lanai cases involving three Maui defendants who would be appearing on Lanai for Court," but "Ms. Jura did not follow through and [those] defendants made unnecessary trips to Lanai." Loo Decl. ¶ 5. Judge Polak told Acob that "Jura had asked a Public Defender what she should do on one of her cases" and "appeared in court wearing slippers." Polak Decl. ¶ 5. In addition, Judge Polak informed Acob that "Jura had stated on the record, in a trial she prosecuted and [Polak] presided over, that [Jura] had not understood anything that had happened, because she could not hear what was being said." Id. Judge Polak further told Acob that she had ordered Jura "to wear the amplifying headphones available in the courtroom, but she had refused." Id. Acob terminated Jura the following day. Acob Decl. ¶ 9.
Jura alleges that the real reason she was terminated is that she participated in an internal investigation against Kosegarten. Pl.'s Opp. at 4, ECF No. 119. The investigation flowed from a complaint made by Deputy Prosecutor Timothy Tate on October 29, 2007, to the person within the Prosecutor's Office assigned to investigate discrimination complaints. Tate alleged that Kosegarten was harassing Deputy Prosecutor Yukari Murakami because Kosegarten was jealous of Murakami's romantic relationship with Tate. Jura Decl. ¶¶ 85-91, ECF No. 119-5. On November 6, 2007, Jura told the investigator that Kosegarten had similarly harassed Jura earlier that year when Kosegarten thought that Jura and Tate were romantically involved. Id. ¶¶ 95, 99.
Jura asserts that the decision to fire her was reached upon her "confirming the discrimination of Yukari Murakami and confirming that I had been similarly discriminated against when Marie Kosegarten though[t] that I was dating Timothy Tate." Id. ¶ 100.
Jura asserts unlawful mistreatment by Kosegarten and the Prosecutor's Office in various forms. First, Jura claims that she was discriminated against because of her pregnancy by "being ignored, reassigned to a less desirable position, and witholding/reducing her pay." Pl.'s Opp. at 4; Jura Decl. ¶ 8. Second, Jura asserts that the County of Maui, through Kosegarten, "engaged in hostile and abusive conduct directed towards Plaintiff on the basis of her gender that was so severe and pervasive as to alter the conditions of her employment" in violation of state and federal law. See Pl.'s Opp. at 4. Third, Jura alleges that the County, Acob, and Kosegarten discriminated against her and aided and abetted her termination in violation of section 378-2 of Hawaii Revised Statutes. Id. Fourth, Jura argues that the Prosecutor's Office failed to reasonably accommodate her hearing disability when it did not provide a hearing aid. Jura Decl. ¶¶ 12-13. Fifth, Jura claims that, at some unspecified point in time, "Kosegarten made false and defamatory statements that Plaintiff was incompetent at her business or profession that were publicized to third parties." Pl.'s Opp. at 5.
III. MOTION FOR SUMMARY JUDGMENT
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 to 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. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000). The burden initially falls on 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); 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. 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 Corr., 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 verdict for the nonmoving party." California v. Campbell, 319 F.3d 1161, 1166 (9th Cir. 2003); Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000) ("There must be enough doubt for a 'reasonable trier of fact' to find for plaintiffs in order to defeat the summary judgment motion.").
On a summary judgment motion, "the nonmoving party's evidence is to be believed, and all justifiable inferences are to be drawn in that party's favor." Miller, 454 F.3d at 988 (quotations and brackets omitted).
The court analyzes Jura's claims by count number, except that the court combines the discussion of analogous federal and state claims even if asserted in separate counts.
1. Summary Judgment is Granted to Defendants on Jura's Federal and State Pregnancy Discrimination Claims.
Count I alleges that the County discriminated against Jura because of her pregnancy in violation of Title VII. See Am. Compl. ¶¶ 102-108. Count V, which vaguely alleges sex discrimination in violation of chapter 378 of Hawaii Revised Statutes, id. ¶¶ 162-68, may be intended to include a state law analog to Count I. See Haw. Rev. Stat. § 378-2(1)(A)(defining "because of sex" to include "pregnancy, childbirth, [and] related conditions"); § 378-2(1)(stating that discriminatory practices that are unlawful include identified actions taken because of, among other things, sex). Count V is asserted not only against the County but also against Acob and Kosegarten in their official and individual capacities.
Count V appears to allege that the County, Acob, and Kosegarten directly discriminated against Jura, as well as having aided and abetted discrimination. Whether chapter 378 limits claims that may be brought against co-workers is an issue as to which there is, as yet, no clear statement by the Hawaii Supreme Court. Litigants and courts addressing this issue have relied on, among other things, analogies to Title VII, under which claims against individual employees are not allowed. See Miller v. Maxwell's Int'l, Inc., 991 F.2d 583, 587-88 (9th Cir. 1993)("Congress did not intend to impose individual liability on employees. . . . If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees."). But there will soon be a definitive resolution of whether chapter 378, in contrast to Title VII, allows direct discrimination claims to be brought against individuals, in addition to the aiding and abetting claims section 378-2(3) expressly permits to be brought against individuals. The Hawaii Supreme Court has just granted a certiorari petition raising that issue in Lales v. Wholesale Motors Co., 127 Haw. 412, 279 P.3d 77 (Ct. App.) (unpublished), cert. granted, SCWC-28516, 2012 WL 4801373 (Haw. Oct. 9, 2012).
The Lales ruling by the Hawaii Intermediate Court of Appeals held that individual employees could be sued under section 378-2 both as agents of an employer and for aiding and abetting. In so ruling, the ICA adopted the reasoning of Judge J. Michael Seabright of this court in Sherez v. Hawaii Department of Education, 396 F. Supp. 2d 1138, 1145 (D. Haw. 2005). The ICA did not mention that the Ninth Circuit had, in a different case raising the same issue, determined that "there is no individual liability under Hawaii Revised Statutes § 378-2(1)(A) and (2)," notwithstanding the individual liability for aiding and abetting discrimination provided for by section 378-2(3). See Lum v. Kauai Cnty. Council, 358 Fed. App'x 860, 862 (9th Cir. 2009)(affirming decision in Civ. No. 06-00068 SOM/LEK, 2007 WL 3408003 (D. Haw. Nov. 9, 2007)).
Of course, if the Hawaii Supreme Court affirms the ICA's ruling in Lales, this court will apply the Hawaii Supreme Court's reasoning rather than the Ninth Circuit's in any dispute turning on the applicability of section 378-2 to individual employees. However, this court need not even reach that issue to decide Jura's pregnancy discrimination claims, because all of Jura's federal and state pregnancy discrimination claims are time-barred.
Recognizing that Title VII and chapter 378 required her to exhaust administrative remedies before bringing her claims to court, see 42 U.S.C. § 2000e-16(c), Haw. Rev. Stat. §368-11(c), Jura filed her pregnancy discrimination claims with the Equal Employment Opportunity Commission and the Hawaii Civil Rights Commission. Her federal claim had to be filed with the EEOC within 300 days of the alleged discrimination. See 42 U.S.C. § 2000e-5(e)(1); 29 C.F.R. § 1601.80, 1601.13. See also Kauila v. Cnty. of Maui, 504 F. Supp. 2d 969, 985 (D. Haw. 2007) (noting that what is otherwise a 180-day limitation period for filing a claim with the EEOC is extended to 300 days if a claimant also files a claim with a state agency that enforces its own discrimination laws). Her state claim had to be filed with the Hawaii Civil Rights Commission within 180 days. Haw. Rev. Stat. § 368-11. Jura filed her claims well beyond the deadlines.
Jura was on medical leave because of pregnancy-related issues from January 18, 2007, until February 5, 2007. Jura Decl. ¶¶ 6-7. When she returned to work, Jura learned that she had been transferred from the Appellate Division to the District Court Division. Id. ¶ 7. While Acob maintains that "[m]oving a deputy from Appeals to District Court was not a demotion," Acob Decl. ¶ 4, Jura viewed the District Court Division as "less desirable" than the Appellate Division. Plaintiff's Facts ¶ 2, ECF No. 120.
Jura also complains that the County wrongly docked her pay while she was on medical leave. Pl.'s Opp. at 6. Jura submitted an Employee Attendance and Leave Report on or about February 20, 2007, Am. Compl. ¶ 20, and subsequently discovered that Human Resources had docked her four additional days of pay for weekend days during her sick leave. Id. ¶ 22. Defendants argue that Jura knew or should have known the amount of her pay when she received her paycheck for the periods in question.
Def.'s Mot. for Summ. J. at 5. Indeed, Jura received an itemized paycheck for both pay periods spanning her leave, which noted all deductions without pay, no later than February 28, 2007. See Declaration of Adrienne Kawano ¶¶ 3-4, ECF No. 95-5. Jura therefore knew or should have known of her paycheck status by February 28, 2007.
Jura filed her pregnancy discrimination claims with the EEOC and the HCRC on January 14, 2008. See Jura's HCRC and EEOC Charge of Discrimination, ECF No. 95-14. This was approximately 343 days after Jura had returned to work and been reassigned to the District Court Division, and approximately 320 days after she received her paycheck of February 28, 2007. All of ...