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Lalau v. City & County of Honolulu

United States District Court, D. Hawai'i

March 28, 2013

ELLIS F. LALAU, Plaintiffs,

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For Ellis F. Lalau, Plaintiff: Michael Jay Green, LEAD ATTORNEY, Honolulu, HI; Peter C. Hsieh, LEAD ATTORNEY, Honolulu, HI.

For City and County of Honolulu, a Municipal Corporation, Defendant: Curtis E. Sherwood, LEAD ATTORNEY, Office of Corporation Counsel-Honolulu, Honolulu, HI.

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In this employment discrimination case, Plaintiff Ellis Lalau is suing the City and County of Honolulu (the " City" ) in connection with having been allegedly demoted, excluded from training and meetings, investigated, and placed on administrative leave from the Honolulu Liquor Commission. Lalau asserts five claims against the City. Count I asserts national origin discrimination in violation of Title VII. Count II asserts a claim under the Age Discrimination in Employment Act (" ADEA" ). Count III asserts a state-law employment discrimination claim pursuant to section 378-2 of Hawaii Revised Statutes. Count IV asserts a state-law whistleblower claim pursuant to section 378-62 of Hawaii Revised Statutes. Finally, Count V asserts a common law claim for intentional infliction of emotional distress (" IIED" ).

The City now moves to dismiss Laulau's claims on the grounds that Laulau has failed to prosecute the case. In the alternative, the City moves for summary judgment. This court declines to dismiss the case for failure to prosecute. After having earlier expressed its inclination to grant summary judgment to the City on all claims, the court, having heard oral argument, having further reviewed the written materials submitted to it, and having done further legal research, now concludes that questions of fact preclude summary judgment on several claims. Summary judgment is granted in the City's favor on only the following:

1. The portions of the Title VII, ADEA, and section 378-2 claims asserting or a hostile work environment or retaliation.

2. The entirety of Count IV.

3. The portions of Count V asserting emotional distress relating to a hostile work environment, retaliation, or whistleblowing.

In all other respects, the summary judgment motion is denied.


Lalau is a Samoan male over the age of forty. See Charge of Discrimination, Exh. M to Defendants' Concise Statement of Facts (" DCSF" ), ECF No. 31-19. He began working for the Honolulu Liquor Commission as a liquor investigator in March 2007. Id.

The parties agree that Lalau was temporarily assigned to fill the position of acting supervisor on December 12, 2007. See DCSF ¶ 5; Plaintiff's Concise Statement of Facts (" PCSF" ) ¶ 5, ECF No. 47. Then, on March 26, 2008, Liquor Inspector Jude Remotigue complained that Lalau had belittled him and created a hostile work environment. DCSF ¶ 7; PCSF ¶ 7. The parties agree that shortly thereafter, in April 2008, Lalau ceased to be an acting supervisor and returned to being an investigator. However, the parties disagree as to the reason for that change in position. The City says that the term of Lalau's temporary assignment simply ended. Lalau

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contends that he was removed from his temporary assignment " in retaliation," because he was " about to report misconduct by Jeff Smith, other supervisors, and co-employees," and because he " refused to falsify" Daily Activity Reports, which Lalau alleges Chief Investigator Jeffrey Smith had directed him to do. DCSF ¶ ¶ 9, 10; Dec. of Ellis V. Lalau ¶ ¶ 5, 10, ECF No. 47-2.

According to Lalau, in the period immediately following his return to being an investigator, he " was constantly harassed by Smith and [Admininstrator Dewey] Kim" and " excluded from meetings." Lalau says that he " was accused of falsifying reports" and of " covering up for liquor establishments," and " was threatened with polygraphs and future investigations." Dec. of Lalau ¶ 11. Lalau specifically recalls that, on June 16, 2008, Smith told him that he could no longer participate in the Cancer Research Center of Hawaii's program because he had missed a meeting, even though other investigators who had missed meetings had allegedly not been excluded from the program. Id. ¶ 14.

In mid-June 2008, Lalau asked Smith to reinstate him as a supervisor. Lalau says that Smith responded by saying that the supervisory position would be going to " a younger guy as I was too old anyway." Id. ¶ 11. Smith denies having made any such statement. Dec. of Jeffrey Smith ¶ 35, ECF No. 31-16. Administrator Kim notes that, at the time Lalau was removed from the supervisory position, Lalau " was 41 years old," which was younger than either Smith or Kim, and was " the youngest person in a supervisory capacity." Declaration of Dewey Kim ¶ ¶ 36-37.

Lalau further says that, on June 19, 2008, " Smith and Kim stated that they needed to make the office safe from me because I was just a typical Samoan." Dec. of Lalau ¶ 13. Smith denies having made such a statement. Dec. of Smith ¶ 39. With respect to whether Kim made such a statement, the court notes that the reference in Lalau's declaration to Kim's having made such a statement himself is at odds with the allegation, made under penalty of perjury, in Lalau's administrative Charge of Discrimination, which states, " Smith told Administrator Dewey Kim that he needed to make the office safe from me because I was Samoan and I was a 'typical Samoan.'" See Exhibit M, ECF No. 31-19. This discrepancy may reflect on Lalau's credibility at trial, but it is not material to the court's ruling here.

While not directly addressing the allegation that he himself made the statement, Kim denies that Smith made the statement to him and asserts that he would not have tolerated such a statement from Smith and that he himself harbors no animosity toward Samoans:

40. Plaintiff bases his claim of racial basis on the allegation that, in mid-June, Smith supposedly told me that " he needed to make the office safe from [Plaintiff] because Plaintiff was Samoan and a 'typical Samoan'."
41. Smith never made such a statement to me.
. . . .
45. If Smith had made such a derogatory statement, I would have considered it inappropriate, and would have counseled him about it.
46. I do not harbor any prejudice against, or animosity towards, Samoans and as Administrator took affirmative actions to hire more Polynesians at the Liquor Commission, including Samoans.

Dec. of Kim ¶ ¶ 40, 41, 45-46.

There is an additional inconsistency relating to what was said about Lalau's Samoan background. In a letter dated July 29, 2008, to the City's Director of Budget and Fiscal Services, Mary Pat Waterhouse,

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Lalau said that Smith had made " public comments around me that he 'needs to make this place (Honolulu Liquor Commission Office) safe from me because I placed Remotigue in a hostile working environment.'" ECF No. 47-3. Without saying that Smith had actually used the word " Samoan," the letter continues with the following parenthetical: " (I felt comment was made due to my ethnic background)." At trial, it may be critical to the factfinder to determine whether there was an express reference to Lalau as a " typical Samoan" or whether, without hearing the word " Samoan," Lalau was justified in " feeling" that the comment related to his " ethnic background." This court need not resolve this matter and instead views the evidence in the light most favorable to Lalau, which means that the court accepts the version more damaging to the City (i.e., the version in which Lalau says that he was referred to as a " typical Samoan" from whom the office needed to be made safe).

In July 2008, following an internal investigation, Lalau received a Notice of Disciplinary Action that contained a written warning for having violated the Honolulu Liquor Commission's standards of conduct in his interactions with Remotigue. See DCSF at Exhibit C, ECF No. 31-10. Lalau says that, a few days later, Smith told him that he could no longer participate in firearms training because he had missed a day, " when in fact I had never missed a day." Id. ¶ 16.

Smith and Kim deny that Lalau was excluded from training. They attribute any lack of training to Lalau's own decision not to take advantage of training opportunities. They refer to a training opportunity on Maui in September 2008, which they say Lalau declined because he planned to attend a football game on the mainland. Dec. of Kim ¶ ¶ 51-57; Dec. of Smith ¶ ¶ 46-50. Kim also says that, while Lalau did attend training in Kona, Lalau declined to attend training in California in 2008, citing childcare issues. Dec. of Kim ¶ 55. Smith and Kim say that the only training Lalau was not allowed to participate in was a firearms training session in late July 2008. Russell Yap, a Liquor Control Investigator I at the time of the events in question, was present for that training. He says that, because Lalau " appeared to be upset, agitated and accusatory," the firearms instructor and Yap, " [o]ut of concern for the safety of the other individuals participating in the exercise, . . . recommended that Plaintiff not participate in the live fire training." Dec. of Russell Yap ¶ ¶ 34-36. Smith concurred in that recommendation. Dec. of Smith ¶ ¶ 43-45.

Kim reports having held a meeting on July 29, 2008, that Kim says Lalau " burst" into " uninvited." Kim says he was meeting with three investigators and their temporary supervisor " to share with them positive feedback [he] had received about their performance while training in California." He says he had not invited Lalau or other investigators to that meeting " [g]iven the subject nature of the meeting." Dec. of Kim ¶ ¶ 64-66. Lalau, on the other hand, told Mary Pat Waterhouse that everyone else who was at work that day was " in or headed to" the meeting. ECF. No. 47-3. Kim says that Lalau demanded to know why he had not been invited to attend the meeting and that, when Kim explained that the meeting concerned training in California that Lalau had not participated in, Lalau accused him of threatening Lalau, told secretaries that they had to be Lalau's witnesses, and called the police. Kim denies having threatened Lalau and says that the police determined that there had been no threatening conduct. Id. ¶ ¶ 70-76.

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That same day, Lalau submitted letters to the Liquor Commission Board and to Waterhouse, the City's Director of Budget and Fiscal Services, asserting that he had been subjected to a hostile work environment. About two weeks later, Lalau was placed on administrative leave and " was officially charged and placed under investigation for performance of duty, absence of duty, and falsifying" Daily Activity Reports. Dec. of Lalau ¶ ¶ 17-18, 21. Lalau apparently remained on administrative leave until June 29, 2010. According to Lalau, the charges against him were dismissed after having been " allowed to languish for 22 months." See letter from Lalau to Honolulu Liquor Commission dated Sept. 24, 2010, ECF No. 47-4; letter from Lalau to Commissioners dated June 1, 2011, ECF No. 47-5.

On September 3, 2008, Lalau filed his Charge of Discrimination with the Hawaii Civil Rights Commission (" HCRC" ). A box on the charge form that provided for simultaneous presentation of the charge to the EEOC was checked. See Kaulia v. County of Maui, 504 F.Supp.2d 969, 985-86 (D. Haw. 2007)(noting that Hawaii is a deferral state with a worksharing agreement between the EEOC and HCRC). The charge alleged national origin and age discrimination, as well as retaliation. ECF No. 31-19. On July 14, 2010, a Notice of Suit Rights was mailed to him by the EEOC. ECF No. 31-20. Compl. ¶ 41. Nothing in the record establishes that Lalau received a separate Right to Sue Notice from the HCRC, which is required before a lawsuit asserting a section 378-2 claim may be filed. See Haw. Rev. Stat. § § 368-11, 368-12. However, because there is no dispute that Lalau submitted a charge to the HCRC, and because the City does not contend on the present motion that Lalau failed to exhaust his administrative remedies with respect to his section 378-2 claims, this court proceeds here on the assumption that Lalau received a Right To Sue Notice from the HCRC.

Lalau filed suit in state court on October 10, 2010, but did not serve the Complaint on the City. Lalau then filed his First Amended Complaint on January 31, 2011, which was served on the City on April 11, 2011. The City removed the action to this court on April 21, 2011. See Notice of Removal of Civil Action, ECF No. 1.


The City seeks dismissal of this action based on what it says is Lalau's failure to prosecute this action. Rule 41(b) of the Federal Rules of Civil Procedure provides for a motion to dismiss if a plaintiff " fails to prosecute or to comply with these rules or a court order." " Dismissal is a harsh penalty and is to be imposed only in extreme circumstances." Henderson v. Duncan, 779 F.2d 1421, 1423 (9th Cir. 1986). A court must weigh several factors in determining whether to dismiss for lack of prosecution: " (1) the public's interest in expeditious resolution of litigation; (2) the court's need to manage its docket; (3) the risk of prejudice to the defendants; (4) the public policy favoring disposition of cases on their merits and (5) the availability of less drastic sanctions." Id.

The first factor (the public's interest in expeditious resolution of litigation) weighs in favor of dismissal. This lawsuit commenced in state court in October 2010, and it has been nearly two years since the case was removed to this court.

The second factor (the court's need to manage its docket) is neutral, as the record does not indicate that the court's management of its docket has been thwarted. Of course, the more quickly a ...

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