Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

McCarthy v. Hawaiian Parasail, Inc.

United States District Court, D. Hawaii

November 30, 2014


For Tucker McCarthy, Plaintiff: Jared A. Washkowitz, LEAD ATTORNEY, JAW Legal, Honolulu, HI.

For Hawaiian Parasail, Inc., Mark Neumann, Defendants: Jeffrey S. Harris, LEAD ATTORNEY, Kristi K. O'Heron, Torkildson Katz Moore Hetherington & Harris, Topa Financial Center Bishop St Tower, Honolulu, HI.

For ISLAND STYLE PARASAIL LLC, Material Witness: Jared A. Washkowitz, JAW Legal, Honolulu, HI.


Leslie E. Kobayashi, United States District Judge.

Before the Court is Defendants Hawaiian Parasail, Inc. (" Hawaiian Parasail") and Mark Neumann's (" Neumann, " collectively " Defendants") Motion for Summary Judgment (" Motion"), filed on July 30, 2014. [Dkt. no. 12.] Plaintiff Tucker McCarthy (" Plaintiff") filed his memorandum in opposition on September 29, 2014, and Defendants filed their reply on October 6, 2014. [Dkt. nos. 29, 30.] This matter came on for hearing on October 29, 2014. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED for the reasons set forth below.


On February 14, 2014 Plaintiff first filed this lawsuit in the Circuit Court of the First Circuit for the State of Hawai'i. [Dkt. no. 1 (notice of removal), Exh. A.] On July 7, 2014, Defendants filed their Notice of Removal of State Court Action to Federal Court and, on July 10, 2014, Plaintiff filed his First Amended Complaint (" the Complaint"), alleging that he was wrongfully retaliated against and terminated in violation of federal and state law. [Dkt. nos. 1, 8.] Plaintiff alleges that he was a seaman and deckhand employed by Hawaiian Parasail, a recreation tour business, and its owner and president, Neumann, from approximately 2008 until August 2013. [Complaint at ¶ ¶ 4-5, 7, 10-11.] He also alleges that: he worked over twenty hours per week, sometimes well over forty; he was paid in cash; and Defendants did not keep written records of hours worked or employee pay. [Id. at ¶ ¶ 16, 17.] Plaintiff further alleges that Defendants terminated him shortly after he complained about a lack of medical insurance and proper compensation, and that Neumman made misrepresentations to the State of Hawai'i Unemployment Insurance Division (" State UI Division") that Plaintiff had only been employed with him for a few months, which resulted in Plaintiff not receiving unemployment benefits. [Id. at ¶ ¶ 11, 18, 39.]

The Complaint alleges the following claims: violation of the Employment Retirement Income Security Act (" ERISA"), 29 U.S.C. § 1140, et seq . (" Count I"); retaliation against a whistleblower in violation of the Hawai'i Whistleblower Protection Act (" HWPA"), Haw. Rev. Stat. § 378-1, et seq . (" Count II"); wrongful discharge in violation of public policy, pursuant to Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652 P.2d 625 (1982) (" Count III"); breach of the implied covenant of good faith and fair dealing (" Count IV"); unjust enrichment (" Count V"); and intentional interference with prospective economic advantage (" Count VI"). Plaintiff seeks the following relief: general and special damages; punitive damages; a declaratory judgment requiring reinstatement and back pay, including " fringe benefits and seniority rights[; ]" a declaratory judgment prohibiting Defendants from further violating Hawai'i law " with respect to providing medical insurance[; ]" civil penalties and all other remedies available under ERISA; reasonable attorneys' fees and costs; pre- and post-judgment interest; and all other appropriate relief. [Complaint at pgs. 11-12.]


I. Count I

Plaintiff alleges that Defendants violated ERISA by terminating him in retaliation for his complaints about not receiving medical insurance. 29 U.S.C. § 1140 provides, in pertinent part:

It shall be unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary for exercising any right to which he is entitled under the provisions of an employee benefit plan, this subchapter, section 1201 of this title, or the Welfare and Pension Plans Disclosure Act, or for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan, this subchapter, or the Welfare and Pension Plans Disclosure Act.[1]

One district court within the Ninth Circuit recently summarized the burden-shifting standard for ERISA claims:

A retaliation claim under § 1140 is assessed under the " McDonnell Douglas burden-shifting framework." See Lessard v. Applied Risk Mgmt., 307 F.3d 1020, 1025 and n.3 (9th Cir. 2002) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)). Under said framework, the " plaintiff must first establish a prima facie case of retaliation by showing that [he] engaged in a protected activity, that [he] was thereafter subjected by [his] employer to [an] adverse employment action, and that a causal link exists between the two." See Cohen v. Fred Meyer, Inc., 686 F.2d 793, 796 (9th Cir. 1982). " Once the plaintiff has established a prima facie case, the burden of production devolves upon the defendant to articulate some legitimate, non-retaliatory reason for the adverse action." Id. " If the defendant meets this burden, the plaintiff must then show that the asserted reason was a pretext for retaliation." Id.

Pizza v. Fin. Indus. Regulatory Auth., Inc., No. C- 13-0688 MMC, 2014 WL 2450863, at *5 (N.D. Cal. May 30, 2014) (some alterations in Pizza).

For the purposes of the Motion, Defendants do not contest that Plaintiff can make a prima facie case, and instead argue that they had legitimate, non-retaliatory reasons for terminating Plaintiff. [Mem. in Supp. of Motion at 3-4.[2] They provide the following rationale:

- Neumann received complaints that Plaintiff used foul language when he got a small tip from customers, as documented in a June 16, 2012 memorandum from Neumann to Plaintiff; [Defs.' Concise Statement of Facts in Support of Motion for Summary Judgment (" Defs.' CSOF"), filed 7/30/14 (dkt. no. 13), Decl. of Mark Neumann (" Neumann Decl.") at ¶ 7, Exh. C (6/16/2012 Mem. from Management to Tucker McCarthy re Verbal Abuse to Customers (" 6/16/12 Mem.")); ]

- Neumann received complaints that Plaintiff passed gas loudly in the presence of co-workers and customers and laughed about it; [Neumann Decl. at ¶ 9; ]

- Plaintiff showed up for work in a stained and wrinkled uniform on several occasions, refused to work with certain captains, and changed the days he said he was available to work, which placed significant strain on Hawaiian Parasail; [id. at ¶ ¶ 10-11; ]

- Plaintiff took excessive days off in 2013, including during the busiest times of year (July, September, Thanksgiving, and Christmas), which was prohibited; [id. at ¶ ¶ 5, 12, 14, Exh. D (note requesting September 5-9, November 25-December 2, and December 20-31 off); ] and

- Neumann terminated Plaintiff for these reasons, because he places significant emphasis on professionalism and customer service [Neumann Decl. at ¶ 18, Exh. F (9/1/13 letter from Neumann to Plaintiff (" Termination Letter"))].

Defendants argue that this misconduct violated Hawaiian Parasail's Company Policy (" Company Policy"), [Neumann Decl. at ¶ 4, Exh. B (Company Policy), ] and that Neumann documented these reasons in the Termination Letter.

In response, Plaintiff argues that Defendants' reasons are pretextual. Specifically, he argues that: he did not commit the acts of misconduct and there is no evidence, other than Neumann's conclusory statements, that he did; he was never advised that he had purportedly violated company policy; other employees who engaged in the same conduct, including requesting time off in the same manner as Plaintiff did, were not terminated; and the purported reasons were not the true reasons, and the timing of his ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.