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Chung v. City and County of Honolulu

United States District Court, D. Hawaii

January 26, 2016

NELSON A. CHUNG, Plaintiff,


DERRICK K. WATSON, District Judge.

Plaintiff Nelson Chung claims that his former employer, the City and County of Honolulu, and his former County supervisors, Pamela Okihara and Elizabeth Tsuruda (collectively "Defendants"), discriminated against him on the basis of gender and sexual orientation in violation of state and federal law. Because the discriminatory acts of which Chung complains were alleged to have occurred in the months leading up to his March 2008 departure from the County, and because Chung did not initiate administrative complaints regarding these acts until May 2012, well beyond the applicable statute of limitations, the Court GRANTS Defendants' Motion for Summary Judgment. Dkt. No. 34.


I. Chung's Employment with the City and County of Honolulu

In December 2006, Nelson Chung began his employment with the City and County of Honolulu, Parks and Recreation Department (the "County"), as a Recreation Director I. Dkt. No. 35-1, Declaration of Pamela Okihara ("Okihara Decl.") ¶ 4. According to Chung, shortly after he started, his immediate supervisor, Elizabeth Tsuruda, began asking him questions about his personal life, leading him to disclose that he is gay. Dkt. No. 43, Declaration of Nelson Chung ("Chung Decl.") ¶¶ 5-7. Tsuruda then began making unsolicited, and apparently offensive, comments about gays. Chung Decl. ¶¶ 8-14.

On February 22, 2007, Tsuruda completed Chung's probationary performance evaluation in which she rated him as "satisfactory." Dkt. No. 35-2, Declaration of Elizabeth Tsuruda ("Tsuruda Decl.") ¶ 2. Pamela Okihara, the Complex Supervisor/Recreation Director IV, completed Chung's subsequent evaluation reports. Okihara Decl. ¶¶ 2, 7; Tsuruda Decl. ¶ 3. Okihara rated Chung as "substandard" on various levels. Okihara Decl. ¶¶ 7-9; Dkt. No. 35-6, Def. Exh. C. Chung submitted written responses to these evaluation reports, in which he attempted to refute Okihara's substandard ratings. Dkt. No. 35-6, Def. Exh. C at 7-8, 13-14, 21-22, 26-27. These written responses did not include references to being discriminated against on the basis of gender or sexual orientation, or being exposed to a "hostile work environment." Id .

After one of his co-workers left at the end of August 2007, Chung claims to have been "saddled" with all of his former co-worker's duties. Chung Decl. ¶¶ 16-25. Chung also felt as though his supervisors subjected him to heightened scrutiny by requiring him to keep weekly schedules detailing his duties and to attend weekly meetings with Okihara. Chung Decl. ¶¶ 26-27.

In February 2008, a staff meeting was held at which time Okihara discussed the upcoming summer work assignments. Okihara Decl. ¶ 15. Okihara told Chung that he would be responsible for the teen program and the Manoa Gym facilities. Okihara Decl. ¶ 15. Okihara went on to joke, "that is, if you are still here in June." Okihara Decl. ¶ 17. Okihara maintains that she was "joking because in all likelihood [Chung] would be assigned to Manoa Valley District Park and would not be detailed to another park during the summer as he was the summer before." Okihara Decl. ¶ 17. However, Chung did not take Okihara's comment as a joke and construed it to mean that she would either make his job so burdensome that he would quit or she would terminate him by that time. Okihara Decl. ¶ 18; Chung Decl. ¶ 43.

On March 2, 2008, Chung was involved in a motor vehicle accident. Chung Decl. ¶ 31; Dkt. No. 35-10, Def. Exh. G at 3. Chung claimed that the accident was a result of inattention due to work-related stress. Id . Following the accident, Chung returned to work only to retrieve his personal items on March 18, 2008. Okihara Decl. ¶ 21; Tsuruda Decl. ¶ 10. He never again returned to work after this date, and neither Okihara nor Tsuruda had any contact with him again. See Tsuruda Decl. ¶ 10.

II. Chung's Workers' Compensation Claim

On April 1, 2008, Chung filed a workers' compensation claim asserting a workplace "stress" injury arising out of Okihara's comment at the February 2008 staff meeting. Okihara Decl. ¶ 15; Dkt. No. 35-10, Def. Exh. G. On November 14, 2008, the Director of the Department of Labor and Industrial Relations denied Chung's claim. Dkt. No. 35-11, Def. Exh. H. Chung appealed the Director's decision to the Labor and Industrial Relations Appeals Board ("LIRAB"), which affirmed the decision of the Director in its September 28, 2011 Decision and Order.[1] Dkt. No. 35-12, Def. Exh. I.

Although Chung had stopped going to work in March 2008, he had never been terminated from his County employment during the pendency of his worker's compensation claim, including his appeal to the LIRAB. Okihara Decl. ¶ 22. After Chung exhausted his paid time off shortly after March 2008, he was placed in leave of absence without pay (LWOP) status. Id. When the LIRAB denied his appeal in September 2011, Chung was informed by letter dated October 24, 2011, from Parks and Recreation Department Director Gary Cabato, that he had to return to work by November 8, 2011, or his continued absence would be deemed a resignation from his position as Recreation Director I. Okihara Decl. ¶ 22; Dkt. No. 35-8, Def. Exh. E. Chung did not return to work. Okihara Decl. ¶ 22.

III. Chung's Commencement of the Instant Lawsuit

On May 3, 2012, Chung filed a Complaint with the Hawaii Civil Rights Commission ("HCRC"), alleging discrimination on the basis of gender and sexual orientation. Dkt. No. 35-14, Def. Exh. K. Several days later, on May 8, 2012, Chung filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Dkt. No. 35-15, Def. Exh. L. Both the HCRC and the EEOC declined to pursue Chung's claims. Specifically, Chung's HCRC Complaint was dismissed on ...

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