United States District Court, D. Hawaii
RAELYNN J. HILLHOUSE, Plaintiff,
HAWAII BEHAVORIAL HEALTH, LLC; GEORGE CHOPIVSKY, JR. in his individual capacity, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS': (1) MOTION TO STRIKE DECLARATIONS OF PLAINTIFF RAELYNN HILLHOUSE, CYNTHIA CURATALO, AND ROBERT DAVÉ; AND (2) MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS AND FOR PARTIAL SUMMARY JUDGMENT
LESLIE E. KOBAYASHI, District Judge.
Before the Court is Hawaii Behavioral Health, LLC ("HBH") and George Chopivsky, Jr.'s ("Chopivsky, " collectively "Defendants") Motion for Partial Judgment on the Pleadings and for Partial Summary Judgment ("Motion for Partial Judgment"), filed on October 2, 2015. [Dkt. no. 132.] Plaintiff Raelynn J. Hillhouse ("Plaintiff") filed a memorandum in opposition to the motion on November 16, 2015, and Defendants filed a reply on November 23, 2015 ("Partial Judgment Reply"). [Dkt. nos. 156, 176.] Also before Court is Defendants' Motion to Strike Declarations of Plaintiff Raelynn Hillhouse, Cynthia Curatalo, and Robert Dave Filed on November 16, 2015 [ECF 157] ("Motion to Strike"). [Filed 11/23/15 (dkt. no. 174).] Plaintiff filed a memorandum in opposition to the Motion to Strike on December 2, 2015. [Dkt. no. 190.]
The Motion for Partial Judgment and the Motion to Strike came on for hearing on December 7, 2015 ("12/7/15 Hearing"). With leave of the Court, Plaintiff filed a supplement to the memorandum in opposition to the Motion for Partial Judgment on December 7, 2015 ("Plaintiff's Supplement") and Defendants filed a response on December 8, 2015 ("Defendants' Supplement"). [Dkt. nos. 197, 202.] After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, the Motion for Partial Judgment and the Motion to Strike are HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.
The relevant factual and procedural background of this case is set forth in the Court's: (1) September 18, 2014 Order Granting in Part and Denying in Part Defendant Chopivsky's Motion for Partial Dismissal of Complaint Filed on March 28, 2014 ("9/18/14 Order"); [dkt. no. 42; (2) October 31, 2014 Order Granting in Part and Denying in Part Defendant Hawaii Behavioral Health, LLC's Amended Motion for Partial Dismissal of Complaint Filed on March 28, 2014 ("10/31/14 Order"); [dkt. no. 45; and May 29, 2015 Order Granting in Part and Denying in Part Defendants' Motion for Partial Dismissal of Second Amended Complaint Filed on February 25, 2015 ("5/29/15 Order") [dkt. no. 82. The Court will only repeat the background that is relevant to the instant motions.
On August 25, 2015, Plaintiff filed her Third Amended Complaint against her former employer, HBH, and its majority owner, Chopivsky. [Dkt. no. 109.] The lawsuit focuses on a series of allegedly discriminatory and retaliatory actions that began in July 2011 and culminated in her resignation from HBH in February 2012. Specifically, Plaintiff alleges that the former President of HBH and friend of Chopivsky, Alexander J. Hoinsky ("Hoinsky"), sexually harassed her and, after she complained, Chopivsky and HBH retaliated against her. The Third Amended Complaint states the following claims: unlawful sex discrimination under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2, against HBH ("Count I"); [Third Amended Complaint at ¶¶ 96-100;] unlawful retaliation under Title VII against HBH ("Count II"); [id. at ¶¶ 101-08;] unlawful retaliation under Haw. Rev. Stat. § 378-2 against HBH ("Count III"); [id. at ¶¶ 109-15;] unlawful retaliation under Haw. Rev. Stat. § 378-2 against Chopivsky (as an aider and abettor) ("Count IV"); [id. at ¶¶ 116-23;] unlawful retaliation against a whistleblower under Haw. Rev. Stat. § 378-62 against HBH ("Count V"); [id. at ¶¶ 124-29;] failure to pay wages under Haw. Rev. Stat. Chapter 388 against HBH ("Count VI"); [id. at ¶¶ 130-34;] intentional infliction of emotional distress ("IIED") against HBH and Chopivsky ("Count VII"); [id. at ¶¶ 135-38;] interference with prospective economic advantage against HBH and Chopivsky ("Count VIII"); [id. at ¶¶ 139-47;] and breach of contract for unpaid vacation and bonuses under Kinoshita v. Canadian Pacific Airlines, Ltd., 68 Haw. 594, 724 P.2d 110 (1986), against HBH and Chopivsky ("Count IX") [id. at ¶¶ 148-54]. Plaintiff seeks the following relief: general and/or compensatory damages; special damages; punitive and/or liquidated or exemplary damages; attorneys' fees and costs, pre-judgment interest, and any other legal and equitable relief available under the state and federal statutes; and any other available equitable relief. [Id. at Prayer for Relief ¶¶ A-E.] The Motion for Partial Judgment seeks dismissal or summary judgment on at least part of all nine counts.
I. Motion to Strike
Defendants allege: (1) that the Declaration of Raelynn J. Hillhouse, [Plf.'s Separate and Concise Statement of Facts ("Plf.'s CSOF"), filed 11/16/15 (dkt. no. 157), Decl. of Raelynn J. Hillhouse ("Hillhouse Decl."), ] includes inadmissible hearsay as well as conclusions that violate Fed.R.Civ.P. 56(c)(4) and Rule 7.6 of the Local Rules of the United States District Court for the State of Hawaii ("Local Rules"). [Mem. in Supp. of Motion to Strike at 2-7.] Further, Defendants state that the Declaration of Cynthia Curatalo, [Plf.'s CSOF, Decl. of Cynthia Curatalo ("Curatalo Decl."), ] also contains hearsay, conclusions, and statements that lack foundation in violation of Fed.R.Civ.P. 56(c)(5) and Local Rule 7.6. Finally, Defendants assert that the Declaration of Robert Dave, Ph.D., [id., Decl. of Robert Dave, Ph.D. ("Dave Decl."), ] goes "beyond his capacity as an expert psychologist." [Mem. in Supp. of Motion to Strike at 9.]
The Motion to Strike is GRANTED IN PART AND DENIED IN PART. It is GRANTED as to paragraphs seventeen and forty-two of the Hillhouse Declaration, which contain conclusions and commentary that are not permitted in a filing in opposition to a motion for summary judgment. See, e.g., Fed.R.Civ.P. 56(c)(4) ("An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated."). The Court agrees that Dr. Dave goes beyond the scope of the his expertise, and the Motion to Strike is GRANTED as to the Dave Declaration. Finally, the Motion to Strike is DENIED as to the Curatalo Declaration because the Court, for the purposes of the Motion to Strike, agrees with Plaintiff that the statements therein are admissible under Fed.R.Evid. 602, 701, and 801(d)(2).
II. Motion for Partial Judgment
A. Title VII Sex Discrimination (Count I)
HBH moves for judgment on the pleadings because Hoinsky was a non-employee, and HBH therefore is liable "only if it knew, or should have known, about the harassment." [Mem. in Supp. of Motion for Partial Judgment at 15.] Alternatively, HBH moves for summary judgment on Count I because "Plaintiff cannot raise a genuine issue that HBH failed to take appropriate corrective action" when it found out that a non-employee, Hoinsky, was accused of sexual harassment. [Id. at 16-17.]
Plaintiff alleges that, on a trip to Hawaii in July 2011 to "visit and inspect" HBH offices, Hoinsky repeatedly sexually harassed her. [Third Amended Complaint at ¶¶ 15-23.] On July 28, 2011, Plaintiff was notified that Hoinsky was appointed as President of HBH, and in August 2011 he sexually harassed her again. [Id. at ¶¶ 23-31.] Plaintiff asserts that she reported this harassment to Chopivsky on September 2, 2011, and on September 14 and 15, 2011. [Id. at ¶ 33.] Even after reporting Hoinsky's alleged harassment, however, Hoinsky "play[ed] an active behind the scenes role in monitoring and participating in the decision-making related to HBH's operations and more specifically, Plaintiff's work." [Id. at ¶ 71.] Chopvisky allegedly copied Hoinsky on emails related to Plaintiff's work performance, voiced anger and frustration about not being able to hire Hoinsky because of Plaintiff's allegations, and hatched a plan to make Plaintiff quit her job. [Id. at ¶¶ 72-74.]
To establish a claim for Title VII sex discrimination by a coworker,
A plaintiff must established that the conduct at issue was both objectively and subjectively offensive: he must show that a reasonable person would find the work environment to be "hostile or abusive, " and that he in fact did perceive it to be so. Faragher v. City of Boca Raton, 524 U.S. 775, 787, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998). Where an employee is allegedly harassed by co-workers, the employer may be liable if it knows or should know of the harassment but fails to take steps "reasonably calculated to end the harassment." Nichols [v. Azteca Rest. Enters., Inc.], 256 F.3d [864, 875 (9th Cir. 2001)] (internal quotation marks omitted).
Dawson v. Entek Int'l, 630 F.3d 928, 937-38 (9th Cir. 2011). The Ninth Circuit has stated that,
employers are liable for harassing conduct by non-employees "where the employer either ratifies or acquiesces in the harassment by not taking immediate and/or corrective actions when it knew or should have known of the conduct." Folkerson v. Circus Circus Enters., Inc., 107 F.3d 754, 756 (9th Cir. 1997); see also Lockard v. Pizza Hut, Inc., 162 F.3d 1062, 1073 (10th Cir. 1998) (adopting Folkerson standard). The Equal Employment Opportunity Commission Guidelines endorse this approach: "An employer may also be responsible for the acts of non-employees, with respect to sexual harassment of employees in the workplace, where the employer (or its agents or supervisory employees) knows or should have known of the conduct and fails to take immediate and appropriate corrective action." 29 C.F.R. § 1604.11(e) (emphasis added).
Little v. Windermere Relocation, Inc., 301 F.3d 958, 968 (9th Cir. 2002) (emphasis in Little).
1. HBH is not Entitled to Judgment on the Pleadings on Count I
While HBH states that "[t]he [Third Amended Complaint] only describes [Hoinsky] as a former president of HBH and indicates that his appointment was not announced until July 28, 2011 - after his July 2011 visit[, ]" [Mem. in Supp. of Motion for Partial Judgment at 16 n.7 (citations and internal quotation marks omitted), ] they are incorrect. Plaintiff states that she was sexually harassed by Hoinsky, "an agent and former President of Defendant HBH." [Third Amended Complaint at ¶ 15.] Title VII "limits liability to employers with 15 or more employees and any agent thereof, which the Ninth Circuit found subjected employers to liability for acts of their employees under the doctrine of respondeat superior only." Chenoweth v. Maui Chem. & Paper Prods., Inc., CV. No. 07-00092 DAE-KSC, 2007 WL 2479297 (D. Hawaii Aug. 27, 2007). The Court FINDS that, "on the face of the pleadings[, ]" there is a material issue of fact as to Hoinsky's employment status with HBH, and HBH's Motion for Partial Judgment, insofar as it moves for judgment on the pleadings as to Count I, is DENIED. See Jensen Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934, 937 n.1 (9th Cir. 2011) ("Judgment on the pleadings under Rule 12(c) is proper when the moving party establishes on the face of the pleadings that there is no material issue of fact and that the moving party is entitled to judgment as a matter of law." (citation omitted)).
2. HBH is not Entitled to Summary Judgment on Count I
Insofar as HBH's Motion for Partial Judgment moves for summary judgment on Count I, it must also be denied because the record does not show "that there is no genuine dispute as to any material fact." See Fed.R.Civ.P. 56(a) ("The court shall grant summary judgment if 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."); see also Pitts v. Sequeira, Civil No. 11-00281 LEK/RLP, 2014 WL 346523, at *2 ("[A] district court... has discretion to consider any evidence in the record." (citing Carmen v. San Francisco Unified Sch. Dist., 237 F.3d 1026, 1031 (9th Cir. 2001))). At her deposition, Hillhouse stated that it was her understanding that Hoinsky was not an employee of HBH:
Q. What did you understand [Hoinsky's] role with HBH to be as of July 2011?
A. As of the first part of July 2011, he was sent down as an agent of Mr. Chopivsky. He was CFO for Mr. Chopivsky's other concerns.
Q. Was it your understanding he was a consultant to HBH?
A. It was my understanding he was some kind of an employee of United Psychiatric.
Q. He was not - when he first came out, he was not an employee of HBH, was that your understanding?
A. Yes, he was not an employee of HBH when he first came out.
[Defs.' Concise Statement of Facts ("Defs.' CSOF"), filed 10/2/15 (dkt. no. 133), Decl. of Christopher S. Yeh ("Yeh Decl."), Exh. G (excerpts of 9/3/15 Depo. of Raelynn J. Hillhouse) ("Hillhouse Depo."), at 63.] At his deposition, however, Hoinsky stated that he was an employee of HBH:
Q. And how many of George Chopivsky's businesses did you work for -
A. Direct -
Q. - in the Summer of 2011?
A. Directly three, and then indirectly, the Ukranian operations I just accumulated financial information.
Q. And what were the ones that you worked for directly?
A. CBH, Capital Behavioral Health. CCS, which is Capital Community Services, and Berks Behavioral Health.
Q. And what about ...