United States District Court, D. Hawai'i
Kenneth W. Cambron, Plaintiff,
Starwood Vacation Ownership Inc.; and Starwood Hotels Worldwide, Inc., Defendants
[Copyrighted Material Omitted]
Kenneth W. Cambron, Plaintiff, Pro se, Cary, NC.
For Starwood Vacation Ownership, Inc., Defendant: Sarah O. Wang, William N. Ota, LEAD ATTORNEYS, Marr Jones & Wang LLLP, Honolulu, HI.
ORDER GRANTING DEFENDANT STARWOOD VACATION OWNERSHIP, INC.'S MOTION TO DISMISS THE AMENDED COMPLAINT FILED JANUARY 25, 2013 WITH PREJUDICE
Helen Gillmor, United States District Judge.
Plaintiff Kenneth W. Cambron has brought suit against his former employer. He claims wrongful termination in violation of public policy, breach of Hawaii's whistleblower statute, and fraud.
Defendant moves to dismiss Plaintiff's Amended Complaint, filed on January 25, 2013.
On April 1, 2013, the Court held a hearing on the matter. Defendant's Motion to Dismiss the Amended Complaint (ECF No. 69) is GRANTED WITH PREJUDICE.
On October 25, 2010, Plaintiff Kenneth W. Cambron, with the assistance of Counsel, filed a Complaint in the Circuit Court of the Second Circuit for the State of Hawaii against Starwood Vacation Ownership, Inc. (Notice of Removal Ex. A, ECF No. 1.)
On November 9, 2010, Plaintiff's Counsel withdrew. Plaintiff now appears pro se.
On April 21, 2011, Plaintiff served the Complaint on Defendant Starwood Vacation Ownership, Inc.
On May 9, 2011, Defendant Starwood Vacation Ownership, Inc. filed an Answer. (Notice of Removal Ex. B, ECF No. 1.)
On May 23, 2011, Defendant filed a Notice of Removal, removing the action to the Federal District Court. (ECF No. 1.)
On August 28, 2011, Defendant filed a Motion for Judgment on the Pleadings. (ECF No. 51.)
On October 29, 2012, a hearing was held on the Motion for Judgment on the Pleadings. At the hearing, Plaintiff requested leave to file an Amended Complaint. (ECF No. 62.)
On November 29, 2012, the Court issued a Minute Order granting Defendant's Motion for Judgment on the Pleadings. The Minute Order also granted Plaintiff leave to file an Amended Complaint. (ECF No. 63.)
On December 18, 2012, the Court issued a Written Order, providing the legal bases for the granting of the Defendant's Motion for Judgment on the Pleadings on November 29, 2012 and the requirements for the Amended Complaint. (ECF No. 64.)
On January 25, 2013, Plaintiff filed an Amended Complaint, naming Starwood Vacation Ownership, Inc. and Starwood Hotels Worldwide, Inc. as Defendants. (ECF No. 66.) The Amended Complaint refers to Defendant Starwood Vacation Ownership, Inc. as " Starwood Westin Vacation Ownership, Inc." at various points. The Order uses the " Starwood Vacation Ownership, Inc." name. Defendant Starwood
Hotels Worldwide, Inc. is the parent company for Starwood Vacation Ownership, Inc. There has been no filing indicating that Defendant Starwood Hotels Worldwide, Inc. has been served.
On February 14, 2013, Defendant Starwood Vacation Ownership, Inc. filed a Motion to Dismiss the Amended Complaint. (ECF No. 69.)
On March 4, 2013, Plaintiff filed an Opposition. (ECF No. 73.)
On April 1, 2013, the Court held a hearing on the Motion to Dismiss. The Court granted the Motion, dismissing the action with prejudice, with a written Order to follow. (ECF No. 74.)
In the Amended Complaint, Plaintiff Kenneth W. Cambron alleges that Defendant Starwood Vacation Ownership, Inc. is liable for wrongful termination of his employment in violation of public policy (Count I), violation of the Hawaii Whistleblowers' Protection Act (Count II), and fraud and conspiracy to defraud to prevent a finding of liability (Count III). (Am. Compl., Jan. 25, 2013, ECF No. 66.) The dispute arises from an alleged assault against Cambron, committed by his former supervisor at Starwood Vacation Ownership, Inc., David DiBerardino.
Defendant Starwood Vacation Ownership, Inc. (" Starwood" ) is a company that develops and sells time-shares. Cambron first worked at Starwood on Maui as a vacation time-share salesperson from April 2003 until June 2005. He was directly supervised by David DiBerardino during that time. (Am. Compl., Factual Allegations at ¶ ¶ 2-3.)
In August 2006, Cambron resumed working for Starwood on Maui. DiBerardino was working at a different Starwood office, in a higher-level position, at that time. (Id. at ¶ 4.)
In January 2009, DiBerardino returned to the Maui office, where Cambron was working. (Id. at ¶ 5.)
Soon after DiBerardino's return to the Maui office, Cambron alleges that DiBerardino assaulted him twice: first on January 20, 2009 and again on January 22, 2009. Cambron claims that both incidents occurred at work. (Id. at ¶ ¶ 6-9.)
Cambron states that he reported the assaults to the Manager of Starwood's Human Resources Department, Rosella Guardisone, on February 2, 2009. Cambron claims that, per Guardisone's request, he e-mailed her an account of the incidents the next day. (Id. at ¶ 10.)
According to Cambron, he sought medical help at Doctors on Call, first on February 2, 2009 and again on February 18, 2012. According to Plaintiff, on his second visit the Doctor told him to remain off work and to file a workers' compensation claim. (Id. at ¶ ¶ 12-13.)
Cambron alleges that the Doctor unlawfully tampered with his medical records. (Id. at ¶ 13.) The Amended Complaint does not allege how the Doctor's purported misconduct is connected to the claims against Starwood.
Cambron states that, around February 26, 2009, he hired an attorney to bring suit against DiBerardino and Starwood for assault and battery and wrongful termination. He claims that his attorney drafted a letter for him to send to Starwood. The letter allegedly stated that requiring Cambron to work with DiBerardino would create a hostile work environment and that the issue needed to be resolved for Cambron to return to work. (Id. at ¶ 15.) It is unclear if Cambron ever delivered the letter.
On March 11, 2009, Cambron met with the Jay C. Carpenter, Director of Starwood's Human Resources Department, and Guardisone, to discuss his employment options. Cambron claims he was informed that DiBerardino was going to remain in his same position. According to Cambron, he was told that if he was uncomfortable working for DiBerardino, he could resign, or they could potentially arrange a severance agreement. The parties determined that the Starwood Human Resources Department would prepare a Severance Agreement. (Id. at ¶ 17.)
On March 16, Carpenter, the Human Resources Director, mailed Cambron the Severance Agreement. (Id. at 18.)
On the same day, Cambron filed charges for assault and battery against DiBerardino in Hawaii State Court. Cambron claims that, against his wishes, Defendant Starwood Vacation Ownership, Inc. was not named as a co-defendant. (Id. at ¶ 19.)
On March 31, 2009, Human Resources Director Carpenter e-mailed Cambron asking if he intended to accept the Severance Agreement. The e-mail explained that the severance offer included a release of all claims against Starwood and DiBerardino. It also explained that the severance offer would expire on April 6, 2009. The e-mail indicated that if Cambron did not accept the severance offer, he was expected to return to work on April 7, 2009.(Id. at ¶ 20.)
Cambron claims that around April 3, 2009, his attorney composed a Letter of Resignation, stating that Cambron was quitting his position. Cambron says he was told to deliver the Letter by the April 6, 2009 Starwood deadline. According to Cambron, he chose not to deliver the Letter because he had a doctor's note excusing him from work. (Id. at ¶ 23.)
It is Cambron's position that Carpenter was aware that Cambron was too injured to work. (Id. at ¶ 22.)
On April 8, 2009, Cambron claims he received another e-mail from Human Resources Director Carpenter, stating that if Cambron did not return to work or communicate about his employment by April 10, 2009, his termination would be considered a voluntary separation for job abandonment. (Id. at ¶ 24.)
Cambron represents that, on April 11, 2009, one day after the Severance Agreement expired, he delivered the Letter of ...