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Jackson v. Foodland Super Mkt., Ltd.

United States District Court, D. Hawai'i

July 25, 2013

LIZA A. JACKSON, Plaintiff,
v.
FOODLAND SUPER MARKET, LIMITED, dba SACK N' SAVE FOODS; JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-5; DOE LLCS 1-5; DOE PARTNERSHIPS 1-5; DOE NONPROFIT ORGANIZATIONS 1-5; and DOE GOVERNMENTAL AGENCIES 1-5, Defendants

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[Copyrighted Material Omitted]

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For Liza A. Jackson, Plaintiff: Charles H. Brower, LEAD ATTORNEY, Honolulu, HI; Michael P. Healy, LEAD ATTORNEY, Honolulu, HI.

For Foodland Super Market, Limited, doing business as Sack 'N Save Foods, Defendant: Ernest C. Moore, III, Kristi K. O'Heron, Tamara M. Gerrard, LEAD ATTORNEYS, Torkildson Katz Moore Hetherington & Harris, Honolulu, HI.

OPINION

Helen Gillmor, United States District Judge.

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ORDER GRANTING DEFENDANT FOODLAND SUPER MARKET, LIMITED dba SACK N' SAVE FOODS' MOTION FOR SUMMARY JUDGMENT (ECF No. 25)

Plaintiff Liza A. Jackson, an African-American woman, claims her employer, Defendant Foodland Super Market, dba Sack N' Save Foods, discriminated against her on the basis of race. Plaintiff seeks relief under Hawaii state laws prohibiting race-based discrimination by employers.

Plaintiff also asserts various other claims, including hostile work environment, intentional infliction of emotional distress, and defamation. These claims are dismissed with Plaintiff's consent.

Defendant seeks summary judgment on all of Plaintiff's claims. Plaintiff has failed to show tat she was subjected to discrimination.

Defendant's Motion for Summary Judgment (ECF No. 25) is GRANTED.

PROCEDURAL HISTORY

On November 14, 2011, Plaintiff Liza A. Jackson (" Jackson" ) filed a Complaint in the Circuit Court of the First Circuit, State of Hawaii. (ECF No. 1-1.)

On August 6, 2012, Defendant Foodland Super Market, dba Sack N' Save Foods, (" Foodland" ) removed the state court action to the United States District Court, District of Hawaii. (ECF No. 1.)

On April 4, 2013, Defendant filed its Motion for Summary Judgment. (ECF No. 25.) Defendant also filed a separate Concise Statement of Facts in support. (ECF No. 26.)

On May 1, 2013, Plaintiff filed an Opposition to the Motion for Summary Judgment. (ECF No. 29.) Plaintiff also filed a separate Concise Statement of Facts in response to Defendant's Concise Statement of Facts. (ECF No. 30.)

On May 22, 2013, Defendant filed a Reply. (ECF No. 32.)

On June 19, 2013, the Court held a hearing on the Motion for Summary judgment.

FACTUAL BACKGROUND

Plaintiff Jackson is an African-American woman.

In January 2009, Plaintiff was hired by Foodland to work as a baker. (Complaint at ¶ 4, ECF No. 1-1.) Plaintiff worked the night shift while employed at Foodland. (Id. at ¶ 10(a).)

In February 2010, Plaintiff was involved in two on the job incidents with a coworker, Whisper Faaagi. Faaagi reported both incidents to Foodland management and human resources. Based on the first incident, Plaintiff received a first written

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warning notice, dated February 15, 2010, from her supervisor, Rick Chang, for violating the Rules of Conduct, including verbal harassment, derogatory comments, profane language, and derogatory insults. (Defendant's SCSF at Ex. D, First Warning Notice, ECF No. 26-7.)

After the second incident with Faaagi, Mark Hirokawa, the Assistant Director of Human Resources, issued a second written warning notice indicating the dates of infraction as February 11, 2010 and February 16, 2010. The warning stated that an investigation by Human Resources confirmed that Plaintiff violated Foodland's harassment, workplace violence, employee communication, and non-retaliation policies. (Id. at Ex. G, Second Warning Notice, ECF No. 26-10.)

On September 18, 2010, Plaintiff was involved in another incident with a coworker, Medina Scott. (Complaint at ¶ 10(j), ECF No. 1-1; Declaration of Liza A. Jackson (" Jackson Decl." ) at ¶ 8, ECF No. 30-1.) Scott reported the incident to Foodland management and human resources. (Declaration of Mark Hirokawa (" Hirokawa Decl." ) at ¶ 4, ECF No. 26-3.)

On September 20, 2010, Plaintiff was suspended from work, pending an investigation by Defendant for allegedly threatening Scott on September 18, 2010. (Complaint at ¶ 10(b), ECF No. 1-1.)

On October 1, 2010, Plaintiff was terminated from her position as a baker. (Id. at ¶ 6.) Assistant Director of Human Resources Hirokawa made the decision to terminate Plaintiff. (Hirokawa Decl. at ¶ 1-2, ECF No. 26-3.) On October 1, 2010, Plaintiff received a termination letter from Hirokawa which stated that Plaintiff was terminated due to violation of the company policies and house rules regarding workplace violence, personal conduct, and abusive language toward other employees. (Complaint at ¶ 10(c).)

Plaintiff maintains that she was disciplined for the same conduct that other non-African-American employees engaged in, but were not disciplined for. (Id. at ¶ 10(e).) Plaintiff also claims that three other employees violated the workplace violence policy, but were not terminated. (Id. at ¶ 10(l-o).)

On March 17, 2011, Plaintiff filed a Charge of Discrimination with the Hawaii Civil Rights Commission (" HCRC" ), HCRC No. 16342. (Complaint at ¶ 7, ECF No. 1-1; Defendant's SCSF at Ex. 0, Charge of Discrimination, ECF No. 26-18.) Plaintiff also filed a Charge of Discrimination with the Equal Employment Opportunity Commission (" EEOC" ), EEOC No. 37B-2011-00026. (Complaint at ¶ 7, ECF No. 1-1.)

On August 16, 2011, the HCRC issued a Right to Sue Letter. (Id. at 8.)

On September 6, 2011, according to the Complaint, the EEOC issued a Dismissal and Notice of Rights. (Id.)

On November 14, 2011, Plaintiff filed a Complaint in Hawaii state court. Plaintiff alleges the following claims: (Count I) Violation of Hawaii Discrimination Laws, (Count II) Hostile Work Environment, (Count III) Infliction of Emotional Distress, and (Count IV) Defamation.

In her Opposition to the Motion for Summary Judgment, Plaintiff consented to have summary judgment granted as to her claims for hostile work environment, intentional infliction of emotional distress, and defamation. (Opposition at 3, ECF NO. 29.)

Plaintiff's Discrimination claim (Count I) remains at issue.

STANDARD OF REVIEW

Summary judgment is appropriate when there is no genuine issue as to any material fact and the moving party is entitled to

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judgment as a matter of law. Fed.R.Civ.P. 56(c). To defeat summary judgment there must be sufficient evidence that a reasonable jury could return a verdict for the nonmoving party. Nidds v. Schindler Elevator Corp., 113 F.3d 912, 916 (9th Cir. 1997).

The moving party has the initial burden of " identifying for the court the 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. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). The moving party, however, has no burden to negate or disprove matters on which the opponent will have the burden of proof at trial. The moving party need not produce any evidence at all on matters for which it does not have the burden of proof. Celotex, 477 U.S. at 325. The moving party must show, however, that there is no genuine issue of material fact and that he or she is entitled to judgment as a matter of law. That burden is met by pointing out to the district court that there is an absence of evidence to support the non-moving party's case. Id.

If the moving party meets its burden, then the opposing party may not defeat a motion for summary judgment in the absence of probative evidence tending to support its legal theory. Commodity Futures Trading Comm'n v. Savage, 611 F.2d 270, 282 (9th Cir. 1979). The opposing party must present admissible evidence showing that there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Brinson v. Linda Rose Joint Venture, 53 F.3d 1044, 1049 (9th Cir. 1995). " If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Nidds, 113 F.3d at 916 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)).

The court views the facts in the light most favorable to the non-moving party. State Farm Fire & Casualty Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989). Opposition evidence may consist of declarations, admissions, evidence obtained through discovery, and matters judicially noticed. Fed.R.Civ.P. 56(c); Celotex, 477 U.S. at 324. The opposing party cannot, however, stand on its pleadings or simply assert that it will be able to discredit the movant's evidence at trial. Fed.R.Civ.P. 56(e); T.W. Elec. Serv., 809 F.2d at 630. The opposing party cannot rest on mere allegations or denials. Fed.R.Civ.P. 56(e); Gasaway v. Northwestern Mut. Life Ins. Co., 26 F.3d 957, 959-60 (9th Cir. 1994). When the non-moving party relies only on its own affidavits to oppose summary judgment, it cannot rely on conclusory allegations ...


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