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Akhen A. Mizraim v. Ncl America

December 14, 2012


The opinion of the court was delivered by: J. Michael Seabright United States District Judge



On November 18, 2010, Plaintiff Akhen A. Mizraim ("Plaintiff") filed this action in the First Circuit Court of the State of Hawaii alleging that Defendant NCL America LLC ("Defendant") discriminated against him on the basis of race, exposed him to a hostile work environment, and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., Hawaii's anti-discrimination statute, Hawaii Revised Statutes ("HRS") § 378- 2, and the Hawaii Whistleblower's Protection Act (the "HWPA"), HRS § 378-61. Defendant subsequently removed the action to this court.

Currently before the court is Defendant's Motion for Summary Judgment, arguing that Plaintiff has failed to establish a genuine issue of material fact in support of any of his claims. Based on the following, the court GRANTS in part and DENIES in part Defendant's Motion for Summary Judgment.


A. Factual Background

On April 10, 2006, Defendant hired Plaintiff to work on a cruise ship as a Utility Galley, and promoted him to Galley Steward on August 13, 2006. Doc. No. 54, Def.'s Concise Statement of Facts ("CSF") ¶ 1.*fn1 Plaintiff's job duties generally involved keeping the dishwashing machine clean, cleaning dishes, pots, and pans, cleaning the kitchen floors and walls, and taking the garbage out of the kitchen. Doc. No. 63-2, Pl.'s Decl. ¶ 2. During his employment with Defendant, Plaintiff asserts that he was discriminated against due to his race (African American), retaliated against for reporting discrimination, and was subjected to a hostile work environment. The following events make up the basis of these claims:

1. Number of Overtime Hours Assigned to Work

In 2008, Sanitation Supervisor Ronald Strode, who is responsible for scheduling sanitation department employees' work hours, received directions from Assistant Food and Beverage Director Jay Shaughnessy to reduce the number of overtime hours that crewmembers worked. See Doc. No. 54-2, Ronald Strode Decl. ¶¶ 1-5. Strode asserts that he implemented this directive by reducing every crewmember's hours by a similar amount, and further denies that he reduced the overtime hours of African American employees more than those of other workers. See id. ¶¶ 6-7. Indeed, Plaintiff had the highest number of overtime hours for the September 2008 pay period. Id. ¶¶ 8-9, Doc. No. 54-13, Def.'s Ex. G; see also Doc. No. 54, Def.'s CSF ¶ 3.

Plaintiff acknowledges that crewmembers' hours were "reduced across the board," see Doc. No. 54-7, Def.'s Ex. A. at 167, and that he did not review the records of hours for other workers. Doc. No. 54, Def.'s CSF ¶ 3. Yet Plaintiff nonetheless asserts that he was sent home while Filipino employees were allowed to stay at work and accrue more hours:

Q. Have you ever reviewed the records of hours for all of the galley stewards?

A. No. I look at the time sheets, and I know that when it comes time, they say, well, you go home.

And they asked the Philippines to stay. They say, oh, yeah, they have to finish up to clean and this and that. And they sent us home, me and the other guy home.

See Doc. No. 54-7, Def.'s Ex. A at 166.

In September 2008, Plaintiff complained to Strode that he and other African American workers were getting their hours reduced while Filipino and Caucasian workers were receiving more hours. Doc. No. 63-2, Pl.'s Decl. ¶ 4. On October 11, 2008, Plaintiff and another African American employee, Daniel Ikegwu, reiterated similar complaints in a joint written statement to Lynn Rolland, the Human Resources Manager. Id. ¶ 5.

2. The October 2008 Stabbing Incident

On October 30, 2008, Plaintiff reported an October 20, 2008 incident in which a fellow employee, David Rodak, allegedly stabbed him in his right leg.*fn2

See Doc. No. 54-8, Def.'s Ex. B. According to Plaintiff's Witness Statement Form, Rodak "said he didn't see me behind him when asked. I didn't report it at the time because I took his word." Id. Plaintiff later decided to report it, however, after Rodak made statements on October 30, 2008 that he does not like Black people, that he wished someone would kill President Obama, and that he would do it himself if he got the chance. Id. Plaintiff's Witness Statement asserts that this incident constitutes a "hostile work environment." Id.

Plaintiff's Witness Statement was forwarded to Security Officer James Conway, who is responsible for performing investigations of criminal allegations, handling physical security, and responding to and investigating injuries. Doc. No. 54-3, James Conway Decl. ¶¶ 4-5. Conway investigated the incident by meeting with both Plaintiff and Rodak. Plaintiff informed Conway that he believed the stabbing was racially motivated. Doc. No. 54, Def.'s CSF ¶ 5. Plaintiff did not, however, indicate that he was injured by the knife. Doc. No. 54-3, James Conway Decl. ¶ 7; see also Doc. No. 63-2, Pl.'s Decl. ¶ 6 (stating that his injury "was not serious and did not require medical attention"). In comparison, Rodak admitted that he did not like President Obama, yet denied making any racially offensive comments or stabbing Plaintiff. Doc. No. 54-3, James Conway Decl. ¶ 8.

Because there were no witnesses or surveillance footage of the incident, Conway concluded that he could not verify Plaintiff's claim and then reported his findings to the human resources department. Id. ¶¶ 9-10. After this incident, Plaintiff had no more problems with Rodak. Doc. No. 54, Def.'s CSF ¶ 5.

3. Plaintiff's Application for Second Sanitation Steward Ready List

On November 4, 2008, Plaintiff applied for the Second Sanitation Steward Ready List, id. ¶ 6, which was his fourth time applying for this position. Doc. No. 63-2, Pl.'s Decl. ¶ 8.

As part of the application process, Shaughnessy interviewed Plaintiff on November 13, 2008. See Doc. No. 54-4, Lynn Rolland Decl. ¶ 7. Shaughnessy relayed to Rolland (the Human Resources Manager), that his interview with Plaintiff lasted nearly an hour, which was not typical. Id. ¶ 9. Shaughnessy further relayed that Plaintiff was timid, nervous, and appeared uncomfortable, and that Shaughnessy had to ask for relevant management experience that Plaintiff was not volunteering on his own. Id. ¶ 9. Because Plaintiff did not demonstrate the confidence or assertiveness that was required for the position, Shaughnessy decided not to recommend Plaintiff for the position.*fn3 Id. ¶ 10.

Plaintiff asserts that "Norman," a Filipino male, was placed on the Second Sanitation Steward Ready List even though Plaintiff was more qualified. Doc. No. 63-2, Pl.'s Decl. ¶ 8. On the same day Shaughnessy interviewed and made his decision as to Plaintiff, however, he also interviewed Bobby Jackson, who is African American, and recommended him for the Second Sanitation Steward Ready List. See Doc. No. 54-4, Rolland Decl. ¶¶ 11-15. On November 26, 2008, Shaughnessy interviewed Juliann Fallen, who is also African American, and recommended her for the Second Sanitation Steward Ready List as well. Id. ¶¶ 17-21.

On December 16, 2008, Plaintiff filed a discrimination charge with the EEOC. Doc. No. 54, Def.'s CSF ¶ 9; Doc. No. 63-4, Pl.'s Ex. 2.*fn4 On January 12, 2009, Plaintiff filed a Complaint for discrimination with the Hawaii Civil Rights Commission ("HCRC"). Doc. No. 63-5, Pl.'s Ex. 3.

4. Plaintiff's Psychological Consultations

In early 2009, Defendant referred Plaintiff to a privately-practicing psychiatrist, Dr. Fiona Leigh, M.D., for a psychological examination. Dr. Leigh subsequently consulted with Plaintiff on March 2, 9, 16, and 30, 2009, and April 6, 13, and 20, 2009. Doc. No. 66, Leigh Decl. ¶¶ 1-3.

Each of these meetings was requested by the ship's physician through a "Shoreside Referral from Ship's Physician to Shoreside Physician," which included a section for Dr. Leigh to fill out for each visit explaining, among other things, her treatment, diagnosis, and need for follow-up. See Doc. No. 66 at Ex. 1. For each visit, Dr. Leigh filled out this form and provided it to Plaintiff, who then provided it to Defendant. Doc. No. 74-1, Leigh Decl. ¶ 7. Through these forms, Dr. Leigh diagnosed Plaintiff as follows:

* major depression single episode DSM IV 296-33. Medication not indicated. Reactive to workplace mistreatment. Id. at ECF 6 of 13 (March 2, 2009).

* Reactive depression DSM IV 296-33 -- reactive to unfair/threatening work environment. Id. at ECF 7 of 13 (March 9, 2009).

* Reactive depression DSM IV 296-33. No sign of paranoia. Concerned about lack of enforcement of policies on ship. Id. at ECF 8 of 13 (March 16, 2009).

* DSM IV 296-33 Major depression reactive to unfair treatment and lack of response to complaint in his employment. Medication not indicated. Id. at ECF 9 of 13 (March 30, 2009).

* Reactive depressive disorder. DSM 296-33. No sign of psychosis. No paranoia. No longer apprehensive. No nightmares since counseled. Id. at ECF 10 of 13 (Apr. 6, 2009).

* Depressive disorder reactive to difficult ship environment. DSM IV 296-33. Mood improved. Mental status WNH. No psychosis. No paranoia or nightmares. Id. at ECF 11 of 13 (April 13, 2009).

* Reactive depression DSM IV 296-33 reactive to reportedly discriminative work environment and apparent attempts to cover up NCL inaction on his behalf. Id. at ECF 12 of 13 (April 20, 2009). Defendant subsequently terminated its relationship with Dr. Leigh, and the ship's physician, Dr. Barton Hershfield, reviewed Dr. Leigh's referral form notes to determine whether Plaintiff was psychiatrically stable and could remain on the ship without additional psychiatric appointments. Doc. No. 73-1, Hershfield Suppl. Decl. ¶¶ 7-8. The only information Dr. Hershfield received from Dr. Leigh were these forms, and he did not communicate her diagnoses with anyone else on the ship except for fellow medical staff members who needed to know. Id. ¶ 12.

5. The June 13, 2009 Chemical Burn Incident

On the evening of June 13, 2009, Plaintiff prepared to clean cooking grills by putting on his coveralls and personal protective gear (including gloves, apron, boots, and goggles). Doc. No. 54-7, Def.'s Ex. A at 58-59, 66. At his deposition, Plaintiff explained that the protective gear is necessary because the chemicals used to clean the grill will "burn like crazy" and "eat you up, your skin." Id. Plaintiff proceeded to clean a grill by pouring chemicals on it, burning off the debris, and then scrubbing it. Id. at 59-60. After cleaning parts of the grill, Plaintiff took off his personal protective gear and went to "lunch."*fn5 Id. at 63-64. After his break, Plaintiff put back on his protective gear and continued scrubbing the grill. Id.

As Plaintiff sweat while scrubbing the grill, he began feeling a burning sensation on his back. Id. at 61, 65-66. When the burn became "overbearing," Plaintiff took off his personal protective gear and co-workers confirmed that his back was "bad" (i.e., had burns on it) and that he should leave. Id. at 67-68. Plaintiff therefore clocked out and went to his room to take a shower. Id. at 68-69. In disrobing for his shower, portions of his skin came off in three areas attached to his coverall and/or apron. Id. at 69.

While Plaintiff waited for the ship's medical clinic to open in the morning to have his burns treated, he called the Federal Bureau of Investigations ("FBI") to report that "somebody did something to, you know, sabotage my, you know, apron." Id. at 69-70. Plaintiff relayed to the FBI that this "sabotage" may be related to his discrimination complaints:

Q. Okay. Tell me what you remember about your conversation with the FBI lady.

A. I told her since I filed the discrimination charge I've been harassed and everything else, and a lot of stuff has been happening. I've been confronted. I've been harassed. I've been like assaulted and so forth. So I said this is getting really dangerous.

So, you know, this has gotten out of control. I said I've been stabbed. I've been confronted. I've been called the "N" word. I mean, you know, I've been --people talk about, yeah, you filed this and that.

So it was all kinds of stuff going on. I was ignoring a lot of the stuff, but I said until that happened, then I said, oh, this has gone too far.

Id. at 72.*fn6 In response, the operator at the FBI told Plaintiff to call the Maui Police Department. Id. at 77.

After his call to the FBI, Plaintiff went to the clinic where he was treated by Dr. Hershfield. Id. at 78. Plaintiff told Dr. Hershfield that somebody had put chemicals on his clothing, and according to Plaintiff, Dr. Hershfield "tried to brush it off like [Plaintiff's] crazy or something" and gave Plaintiff a slip to go back to work. Id. at 78-79. According to Dr. Hershfield, it was apparent at this time that Plaintiff did not feel safe aboard the ship. Doc. No. 54-6, Hershfield Decl. ¶ 6.

After being treated at the clinic, Plaintiff called the Maui Police Department ("MPD"), which sent out officers and a Hazmat truck to the ship. Doc. No. 54-7, Def.'s Ex. A at 76. Plaintiff told the MPD officers that he believed someone placed chemicals on his coveralls in retaliation for Plaintiff reporting discrimination. See Doc. No. 63-6, Def.'s Ex. 4. The Hazmat team collected and tested Plaintiff's coveralls, and confirmed that the coveralls contained a caustic substance that caused Plaintiff's burns. Doc. No. 63-2, Pl.'s Decl. ¶ 15.

After the Hazmat team and the MPD left, Plaintiff was told to report back to the medical clinic to fill out an accident form. Id. ¶ 16. After Plaintiff refused to fill out the form on the basis that his burns were intentional and not "accidental," he renamed the form an "incident report" and filled it out. Id.; Doc. No. 54-6, Hershfield Decl. ¶ 8.*fn7 Dr. Hershfield found that Plaintiff's reaction to his injury was "bizarre and over the top." Doc. No. 54-6, Hershfield Decl. ¶ 9. Dr. Hershfield further believed that Plaintiff was suffering from paranoia, which was escalating and creating a potential danger to Plaintiff and others. Id. ¶ 9. Dr. Hershfield therefore consulted with Medical Manager Jan Kolb, RN, and concluded that Plaintiff should be removed from the ship because he feared for his safety and that his behavior could escalate to dangerous levels. Id. ¶ 10. In the Crew Disembarkation/Medical Notification form, Dr. Hershfield listed Plaintiff's diagnosis/condition as "paranoid ideation/stable," and described the reason for disembarkation as:

Crew member alleges that someone put a chemical in his uniform which caused burns of his back and buttocks. He refused to fill out an Accident Form, saying this was no accident, and instead called the FBI to investigate. He has complained of a work environment which he has described to a psychiatrist as unfair, threatening and discriminatory. He does not appear to be an immediate threat to himself or others, but obviously does not feel safe on the ship.

Doc. No. 54-17, Def.'s Ex. K. In his Declaration, Dr. Hershfield explains that "[w]hen I treated Mr. Mizraim, he told me that an unidentified person put chemicals in his uniform and it caused the burns on his back." Doc. No. 54-6, Hershfield Decl. ΒΆ 6. That is, Plaintiff "never said that he thought the burns were related ...

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