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Howard v. The Hertz Corp.

United States District Court, D. Hawaii

January 25, 2016



Susan Oki Mollway United States District Judge


Defendant The Hertz Corporation moves for summary judgment as to Plaintiff Maurice Howard’s claims for negligent supervision, negligent retention, and negligent training. Hertz argues that summary judgment is appropriate because Howard cannot establish that Hertz owed him a duty to prevent its then-employee, Shawn Akina, from making discriminatory Facebook posts about Howard. The court grants Hertz’s motion.


Howard, a Hertz Rent-a-Car customer, alleges that he was the subject of Facebook posts by Akina and other Hertz employees that constituted “an attack on [his] race, sexual orientation, and financial state and condition.” See ECF No. 66, PageID # 496.

On February 27, 2012, Howard had patronized Hertz’s Maui Airport location, where Akina was a lot manager. See ECF No. 106-9, PageID # 989. After Akina allegedly saw Howard walking on foot near the Hertz location, he posted on his Facebook page, “I seen Maurice’s bougie ass walking kahului beach road . . . nigga please!” See id. A number of Akina’s Facebook “friends, ” including Defendants Samantha Chun, Veronica Huard, Ryan Cabebe, and Pia Somera, [1] all Hertz employees, commented on the post. See ECF No. 18, PageID # 182. After Akina stated that Howard was “a broke ass faka who act like he get planny money, ” Chun posted the comment, “run that faka over!!! lol.” Id. Akina added, “. . . i was tempted too, but nah, i had a white car, neva like u guys scrub da blood off.” Id. Huard subsequently commented, “What no BMW for h today?”, to which Akina responded, “now he knows we got mercedes, he’s gunna drive those. it’s too bad his CC declines all the time . . . .” Id. Cabebe posted, “Hahahaha . . . he still renting huh LOL, ” and Huard later commented, “No more Troy his favorite boy though! Sorry Troy!” Id. Somers “liked” Akina’s post. See ECF No. 106-10, PageID # 992.

Tina Pomale, another Facebook “friend” of Akina’s, saw the post and showed it to Howard. See ECF No. 106-6, PageID # 982. According to Howard, these comments were visible for approximately twenty-four hours before Akina removed them. See ECF No. 5, PageID # 11.

The day after the posts, Howard came to the Hertz Maui Airport location to complain about them. See ECF No. 106-9, PageID # 989. He met with Akina’s supervisor, Rose Fernandez, who was not one of Akina’s Facebook “friends” and had been unaware of the post. See id., PageID # 991. Fernandez reviewed the post and considered it offensive and inappropriate, as well as a violation of Hertz’s corporate policy. See id., PageID # 990. Akina, Huard, Chun, and Cabebe were all subsequently terminated by Hertz or resigned as a result of the post. See id.

Fernandez had previously been notified by another employee that in 2009 or 2010 Akina had posted a Facebook comment that “made light” of her after she nearly walked into a coconut tree. See id., PageID # 877. Although she issued a verbal warning to Akina and directed him to refrain from making any Facebook posts related to Hertz, she had also considered the post to be “fairly innocuous” and nonthreatening. See id.

In connection with the Facebook posts concerning him, Howard asserted various claims against several Hertz entities, individual Defendants Akina, Fernandez, Cabebe, Huard, Chun, and Somers, as well as Facebook Inc. See ECF No. 1. Howard alleged that he suffered posttraumatic stress disorder as a result of reading the Facebook posts, that he was forced to sell his tax preparation business, and that he was financially damaged prior to selling his business because he lost many customers as a result of Akina’s posting that Howard’s credit card was declined twice. See id.

On October 23, 2014, the court granted Hertz’s motion to dismiss some of Howard’s claims, retaining only his negligent supervision, negligent retention, and negligent training claims. See ECF No. 79, PageID # 637. The court’s order also dismissed Hertz Global Holdings, Inc., Hertz Investors, Inc., and Facebook as Defendants. See ECF No. 79.

Hertz now moves for summary judgment as to Howard’s remaining claims. See ECF No. 103.


Summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a) (2010). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). A movant must support his position that a material fact is or is not genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials”; or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

The burden initially falls on the moving party to identify for the court those “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. Pac. Elec. Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (footnote omitted).

The nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv., Inc., 809 F.2d at 630. At least some “‘significant probative evidence tending to support the complaint’” must be produced. Id. (quoting First Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 290 (1968)). See Addisu, 198 F.3d at 1134 (“A scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.”). “[I]f the factual context makes the non-moving party’s claim implausible, that party must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial.” Cal. Arch’l Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (citing Matsushita Elec. Indus. Co., 475 U.S. at 587). Accord Addisu, 198 F.3d at 1134 (“There must be enough doubt for a ‘reasonable trier of fact’ to find for plaintiffs in order to defeat the summary judgment motion.”).

All evidence and inferences must be construed in the light most favorable to the nonmoving party. T.W. Elec. Serv., Inc., 809 F.2d at 631. Inferences may be drawn from underlying facts not in dispute, as well as from disputed facts that the judge is required to resolve in favor of the nonmoving party. Id. When “direct evidence” produced by the moving party conflicts with “direct evidence” produced by the party opposing summary judgment, “the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact.” Id.


Howard’s claims for negligent supervision, negligent retention, and negligent training require him to establish the typical negligence factors: 1) duty, 2) breach of duty, 3) causation, and 4) damages. Howard’s failure to establish the duty element is fatal to each claim.

Under Hawaii law, “it is fundamental that a negligence action lies only where there is a duty owed by the defendant to the plaintiff.” Pulawa v. GTE Hawaiian Tel, 112 Haw. 3, 11, 143 P.3d 1205, 1213 (2006) (quoting Bidar v. Amfac, Inc., 66 Haw. 547, 551, 669 P.2d 154, 159 (1983) (brackets in the original) (citations and quotation marks omitted)). “The question of whether one owes a duty to another must be decided on a case-by-case basis, ” with the pivotal issue being ...

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