United States District Court, D. Hawaii
ORDER DENYING PLAINTIFF’S FED. R. CIV. P. 56(D) REQUEST AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION TO DISMISS COMPLAINT FILED OCTOBER 1, 2015
Leslie E. Kobayashi United States District Judge.
On October 13, 2015, Defendants Ansaldo Honolulu JV (“Ansaldo Honolulu”) and Ansaldo STS USA, Inc. (“Ansaldo STS, ” collectively “Defendants”) filed their Motion to Dismiss Complaint Filed October 1, 2015 (“Motion”). [Dkt. no. 5.] Plaintiff John McCaughey filed his memorandum in opposition on November 30, 2015, and Defendants filed their reply on December 7, 2015. [Dkt. nos. 9, 10.] This matter came on for hearing on December 21, 2015. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
Plaintiff filed his Complaint in state court on October 1, 2015. Defendants removed the action to this district court based on diversity jurisdiction. [Notice of Removal of State Court Action to Federal Court (“Notice of Removal”), filed 10/6/15 (dkt. no. 1), at pg. 2.]
According to the Complaint, on February 18, 2015, Plaintiff submitted his resume in response to an advertisement for “subcontractor opportunities for Safety & Security services” on the Ansaldo Honolulu website. [Notice of Removal, Exh. A (Complaint) at ¶ 11.] At an interview on March 19, 2015, Plaintiff received, inter alia, the Honolulu Authority for Rapid Transit (“HART”) Project Contract Construction Safety and Security Plan (“HART Plan”),  which included a description of the Construction Safety & Security Manager (“CSSM”) position. [Id. at ¶¶ 12-13.] According to the Complaint, the HART Plan stated that:
-the CSSM “shall have no other duties than occupational safety, health and security management on the” HART Contract; [id. at ¶ 14 (emphasis in Complaint);]
-the CSSM must be on the job site every day that work is performed; [id. at ¶ 16;] and
-Ansaldo Honolulu is required to hire a Contractor Safety and Security Representative (“CSSR”) for periods that the CSSM is not on site [id. at ¶ 17].
On April 29, 2015, Ansaldo STS orally offered Plaintiff the CSSM position, and he signed an employment letter agreement (“Letter Agreement”) in Ansaldo Honolulu’s office the next day. When he signed the Letter Agreement, he received the Ansaldo Honolulu Site Safety & Security Plan (“Ansaldo Honolulu Plan”), which also contained job descriptions of the CSSM and the CSSR. [Id. at ¶¶ 21-23.]
Plaintiff began work on May 4, 2015. On May 7, 2015, HART approved his curriculum vitae and Ansaldo Honolulu’s proposal to have him replace the previous CSSM. [Id. at ¶¶ 24, 26.]
Based on emails he received in late May 2015 and in June 2015, Plaintiff learned that: he was expected to perform duties regarding auditing and certification; he was expected to act as Ansaldo STS’s CSSM - as opposed to only Ansaldo Honolulu’s CSSM - for the Hart Project; he was part of Ansaldo STS’s organization under the Health, Safety, and Environmental (“HSE”) coordinators; and Ansaldo Honolulu had not budgeted funds for the CSSR position until the second half of 2017. The Complaint asserts that the additional duties imposed upon Plaintiff were outside the scope of his job description and violated the HART Contract and/or the HART Plan. [Id. at ¶¶ 27-28, 30-36.] Plaintiff informed Ansaldo Honolulu’s HART Project Manager, Enrico Fontana, that Plaintiff could not ethically participate in the audit activities which he had been asked to do. He also informed Mr. Fontana that it was not physically possible for him to act as both the HART CSSM and the Ansaldo STS HSE Senior Advisor - which included certification and audit requirements - because those duties were beyond the scope of his position, according to the position description in the HART Contract. [Id. at ¶¶ 37, 42.] Plaintiff states that Ansaldo STS representatives and Mr. Fontana continued to try to impose the additional duties on Plaintiff on June 11 and 12, 2015. Plaintiff continued to take the position that he could not be involved in any duties beyond the obligations described in the HART Contract because it violated the contract as well as the applicable safety laws. [Id. at ¶¶ 47-48, 50, 52-53, 55-57.]
On June 15, 2015, Plaintiff sent Mr. Fontana information regarding Defendants’ under-manning of the HART Project, and Plaintiff requested information about how to get funding for the required CSSR position. Mr. Fontana directed the matters to Alfredo Tommasone, who was in Ansaldo STS’s office in Italy. [Id. at ¶¶ 58-60.] On June 16, 2015, Plaintiff sent Mr. Tommasone an email in which Plaintiff formally requested clarification from Defendants regarding what he was accountable for, the failure to hire a CSSR, and specific safety issues that had arisen. Plaintiff also met with Mr. Fontana to discuss Plaintiff’s email to Mr. Tommasone, and Mr. Fontana asked Plaintiff why he was using the HART Plan and the Ansaldo Plan against them. [Id. at ¶¶ 62, 64-65.] According to Plaintiff, Mr. Fontana asked him on numerous occasions whether Jane McKee - a safety representative for Ansaldo Honolulu’s subcontractor - could stand in for Plaintiff when he was not at the job site. [Id. at ¶ 69.]
On June 24, 2015, Plaintiff sent an email to Mr. Tommasone because Ansaldo STS had not responded to Plaintiff’s concerns that Ansaldo Honolulu was violating the HART Plan and the applicable safety laws. [Id. at ¶ 67.] In that email, Plaintiff proposed that Defendants make him “a subcontractor overseeing safety, ” which he asserts would have allowed him to ensure that he had the personnel required under the HART Plan and would have protected his professional license if safety issues arose. [Id. at ¶ 68.] Plaintiff and Mr. Tommasone continued to exchange emails about the issues that Plaintiff raised, culminating in a July 7, 2015 email in which Plaintiff stated that he believed he was being pressured out of his position because he would not be complicit in Defendants’ violation of the HART Contract and the applicable safety laws. He reiterated that he proposed the subcontractor arrangement as a solution to the problem, and he stated that, if his proposal was not accepted by July 17, he would be forced to resign. [Id. at ¶¶ 70-75.]
On July 15, 2015, HART gave Ansaldo Honolulu notice of various issues with the project, including a lack of on-site personnel. Plaintiff resigned on July 17, 2015. He argues that it was a constructive discharge. [Id. at ¶¶ 76-77.]
The Complaint alleges the following claims: wrongful termination in violation of public policy, pursuant to Parnar v. Americania Hotels, 65 Haw. 370, 652 P.2d 625 (1982) (“Count I”); violation of the Whistleblowers’ Protection Act, Haw. Rev. Stat. Chapter 378, Part V (“Count II”); and intentional infliction of emotional distress (“IIED” and “Count III”). Plaintiff prays for the following relief: a declaratory judgment that Defendants violated his rights; special damages - including, but limited to, back pay, font pay, and all employee benefits that he would have received; compensatory damages - including, but not limited to, general damages for mental or emotional distress; punitive or exemplary damages; reasonable attorneys’ fees and costs; pre-judgment and post-judgment interest; appropriate injunctive relief; the retention of jurisdiction over this case until Defendants have filed reports proving their compliance; and any other appropriate relief.
In the instant Motion, Defendants argue that all of Plaintiff’s claims fail as a matter of law, and they urge this Court to dismiss the Complaint with prejudice. In his memorandum in opposition, Plaintiff argues that this Court must convert the instant Motion into a motion for summary judgment because Defendants ask this Court to consider materials beyond the pleadings. However, if this Court does so, Plaintiff asks for time to conduct discovery pursuant to Fed.R.Civ.P. 56(d) before this Court rules on the Motion.
I. Preliminary Issues
At the outset, this Court must determine whether it is necessary to convert the instant Motion into a motion for summary judgment. As a general rule, this Court’s scope of review in considering a motion to dismiss is limited to the allegations in the complaint. See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). “[A] court may consider evidence on which the complaint necessarily relies if: (1) the complaint refers to the document; (2) the document is central to the plaintiff’s claim; and (3) no party questions the authenticity of the copy attached to the 12(b)(6) motion.” Id. (citations and internal quotation marks omitted). Ordinarily, consideration of other materials requires the district court to convert a motion to dismiss to a ...