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Turner v. Association of Apartment Owners of Wailea Point Village

United States District Court, D. Hawaii

March 31, 2016




Before the Court are Defendants Robert Reader and Darrell Johnson’s Motion for Summary Judgment (Doc. 50) and Defendant Association of Apartment Owners of Wailea Point Village’s (the “AOAO”) Motion for Summary Judgment (Doc. 52) (collectively, “Defendants’ Motions”). On February 25, 2016, the Court heard Defendants’ Motions. Peter C. Hsieh appeared at the hearing on behalf of Plaintiff Charles P. Turner (“Plaintiff”); Anna M. Elento-Sneed and Landon J.M. Yun appeared at the hearing on behalf of Defendants. After reviewing the motions and the supporting and opposing memoranda, and having heard the arguments of counsel, Defendants’ Motions are granted.


On August 30, 2006, the AOAO hired Plaintiff as a Patrol Officer. Patrol Officers are generally required to guard residential property against fire, theft, vandalism, and illegal entry by performing various patrol, inspection, and observation duties. Patrol Officers are expected to comply with the AOAO’s policies and procedures. Patrol Officers are further required to complete daily activity reports, which are detailed logs of the Patrol Officer’s work-related activities during the shift. Patrol Officers also complete incident reports, which document noteworthy events. Questions, personal opinions, suggestions, and other internal employee issues or problems must be submitted directly to management, and not incorporated into daily activity reports or incident reports.

During Plaintiff’s employment with the AOAO, Defendant Darrell Johnson was Plaintiff’s immediate supervisor. Defendant Johnson reported to AOAO Resident Manager, Robert Reader, who in turn reported to the AOAO Board of Directors. Generally, the AOAO’s Patrol Department has three shifts:

day shift, swing shift, and graveyard shift. Plaintiff was hired for the graveyard shift. The primary function of the graveyard shift is to confirm that everything is secured and no inappropriate activity takes place. The graveyard shift patrol officers sit in the kiosk or patrol the property in a golf cart, check unoccupied unit doors, and lock pool facilities.

On July 18, 2010, Plaintiff reported a left foot work injury that required him to stay out of work through February 2011. At the time of Plaintiff’s work injury, Plaintiff worked the 11:00 p.m. to 7:00 a.m. graveyard shift and was given Mondays and Tuesdays off.

Pursuant to a Disability Certificate dated January 27, 2011, issued by Plaintiff’s Podiatric Physician Dr. Douglas Birch, Plaintiff was permitted to return to work on February 16, 2011 with the following limitations:

NO standing over 2 hrs. per day
NO lifting over 10 pounds
NO walking over 2 hrs. per day
NO working over 8 hrs. per day
Special Instructions: Minimal ascending [and] descending of stairs. Avoid walking on inclinations. Please allow patient to elevate foot as much as possible.

(Doc. 53-10 at 276 (format altered).) On February 8, 2011, Reader sent a letter to Dr. Birch requesting clarification of Plaintiff’s Disability Certificate. Dr. Birch issued another Disability Certificate clarifying Plaintiff’s restrictions as follows:

Minimal ascending & descending of stairs; avoid walking on inclinations; may work 8 hr days 5 times a week; may operate/sit in golf cart for long periods; foot can be elevated on a stool while [patient] seated @ kiosk; foot need not be elevated above head level.

(Doc. 51-7 at 240.)

On February 16, 2011, Plaintiff signed a modified duties list that met Dr. Birch’s restrictions. (Doc. 51-7 at 334.) For example, Plaintiff was assigned to work at the kiosk computer, which Plaintiff admits did not violate Dr. Birch’s restrictions. (See Doc. 51-7 at 164.) Plaintiff was further instructed to elevate his foot in the kiosk, the golf cart, and the break room, but was prohibited from using the pavilions to take a break and/or elevate his foot. Upon Plaintiff’s return to work, Defendants moved Plaintiff to a midnight to 8:00 a.m. graveyard shift. Although Plaintiff requested to have Sundays off to attend church services, Plaintiff’s work schedule did not conflict with his church services, and therefore, Defendants denied Plaintiff’s request. Plaintiff was assigned to the same schedule he had prior to his work injury, with Mondays and Tuesdays off.

Plaintiff discussed his modified duties with Dr. Mark K. Lipetz, Plaintiff’s treating physician, and on February 24, 2011, Dr. Lipetz modified Dr. Birch’s restrictions to limit Plaintiff’s standing and walking to a maximum of two hours per shift. (Doc. 51-7 at 336.) Dr. Lipetz further instructed Plaintiff to avoid stairs and ascending or descending hills, to avoid lifting over ten pounds, to limit work shifts to eight hours, and to elevate his foot (above heart height) while sitting. (Id.) Plaintiff’s modified duties with the AOAO did not prohibit him from observing Dr. Lipetz’s restrictions, and in order to comply with Plaintiff’s work limitations, Plaintiff’s coworkers took on additional duties that Plaintiff was unable to perform.

On multiple occasions during 2011 and 2012, Plaintiff requested to switch from graveyard to swing shift. At some point, Plaintiff discussed the change to swing shift with Dr. Birch, who opined that the swing shift would allow Plaintiff to better recover; however, Dr. Birch did not send anything to Defendants indicating that a change to swing shift should be a part of his modified duties. Defendant Johnson reminded Plaintiff that swing shift patrols required walking around the perimeter of the buildings and conducting security checks on uneven ground while the graveyard shift did not. Because Plaintiff’s work limitations required Plaintiff to avoid walking on uneven ground and limited his walking to a maximum of two hours per shift, Defendants denied Plaintiff’s transfer requests.

According to Defendants, Plaintiff was adversarial with his coworkers and supervisors. On at least two occasions prior to Plaintiff’s foot injury, Defendant Johnson had to intervene. When Plaintiff returned to work in February 2011, he continued his adversarial approach to working with others and began to direct more of his aggression towards Management, and particularly Defendants Reader and Johnson. At various times, Defendants documented Plaintiff’s refusal to follow AOAO policies and procedures, Plaintiff’s poor work performance, and Plaintiff’s insubordination and discourteous conduct towards his supervisors. (Doc. 51-7 at 260-65.) Despite the AOAO’s continued warnings and identification of goals to help improve Plaintiff’s performance, Plaintiff’s performance of his modified duties did not improve. Additionally, Plaintiff continued to engage in disruptive behavior, which ultimately resulted in multiple disciplinary actions, including probations and suspension.

By 2013, Plaintiff’s performance continued to deteriorate. Plaintiff failed to properly complete his daily activity reports and incident reports, even after being instructed to do so. Plaintiff injected personal issues into his daily activity reports in violation of AOAO policy, and refused to sign patrol memos issued by Defendant Johnson on AOAO policies and procedures.

Between August 9 and August 19, 2013, the AOAO managers met to prepare Plaintiff’s annual review. After consideration of Plaintiff’s performance, attitude, and conduct, the AOAO managers decided to recommend Plaintiff’s termination to the AOAO Board of Directors. The Board agreed with the AOAO managers and decided to terminate Plaintiff.

Plaintiff’s termination letter states, in relevant part:

This letter is in response to your most recent refusal to follow policies and procedures. It is our expectation that all our employees do their basic duties, follow directions and procedures, and work cooperatively with co-workers and management. Your continued refusal to follow direction and implement business procedures, and, your constant disruption of the workforce has created an untenable working situation.
You have been given every opportunity possible to succeed. Despite numerous periods of progressive discipline including coaching and counseling, suspension, and, warnings informing you that continued refusal to follow company policy would lead to termination, you repeatedly choose an adversarial position. After careful consideration and after evaluating your current and your past performance, there is no option but to terminate your employment with Wailea Point Village effective September 3, 2013.

(Doc. 51-7 at 305.)

On July 1, 2014, Plaintiff filed his Complaint alleging claims for (1) Disability Discrimination and Retaliation under the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12102, and Hawaii Revised Statutes (“HRS”) § 378-2 (“Count I”); (2) Religious Discrimination under Title VII Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Hawaii Revised Statutes § 378-2 (“Count II”); (3) Hostile Work Environment and Retaliation under Title VII Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and Hawaii Revised Statutes § 378-2 (“Count III”); (4) Wrongful Discharge and Retaliation under HRS §378-62 Whistleblower’s Protection Act (“Count IV”); (5) Wrongful Retaliatory Discharge (“Count V”); (6) Wrongful “Parnar” Discharge in violation of Public Policy (“Count VI”); (7) Negligent Hiring, Retention, Training and/or Supervision (“Count VII”); (8) Negligence (“Count VIII”); (9) Gross Negligence (“Count IX”); (10) Intentional Infliction of Emotional Distress (“Count X”); (11) Negligent Infliction of Emotional Distress (“Count XI”); and (12) Respondeat Superior and/or Vicarious Liability (“Count XII”). (See generally, Doc. 2.)

On September 14, 2015, the Court approved and filed the parties’ stipulation to dismiss with prejudice, Counts VII, VIII, IX and XI. (Doc. 49.) Therefore, the only claims that remain against Defendants are those claims set forth in Counts I, II, III, IV, V, VI, X, and XII.


Rule 56 requires summary judgment to be granted when the pleadings, the discovery and disclosure materials on file, and any affidavits show 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). A main purpose of summary judgment is to 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. Id. at 323. “A moving party without the ultimate burden of persuasion at trial - usually, but not always, a 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 upon 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).

Once the moving party has carried its burden under Rule 56, the nonmoving party “must set forth specific facts showing that there is a genuine issue for trial” and may not rely on the mere allegations in the pleadings. Porter v. California Dep’t of Corrections, 419 F.3d 885, 891 (9th Cir. 2004) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986)). In setting forth “specific facts, ” the nonmoving party may not meet its burden on a summary judgment motions by making general references to evidence without page or line numbers. S. Cal. Gas Co. v. City of Santa Ana, 336 F.3d 885, 889 (9th Cir. 2003); Local Rule 56.1(f) (“When resolving motions for summary judgment, the court shall have no independent duty to search and consider any part of the court record not otherwise referenced in the separate concise statements of the parties.”). At least some significant probative evidence must be produced, T.W. Elec. Serv., 809 F.2d at 630; “[a] scintilla of evidence or evidence that is merely colorable or not significantly probative does not present a genuine issue of material fact.” Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000).

At summary judgment, the court must view the evidence in the light most favorable to the nonmoving party. T.W. Elec. Service, Inc., 809 F.2d at 630. If direct evidence produced by the moving party conflicts with direct evidence produced by the nonmoving party, the judge must assume the truth of the evidence set forth by the nonmoving party with respect to that fact. Id. at 631. Put another way, if a rational trier of fact might resolve the issue in favor of the nonmoving party, ...

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