United States District Court, D. Hawaii.
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT’S MOTION FOR PARTIAL DISMISSAL OF
C. Kay Sr. United States District Judge
reasons set forth below, the Court GRANTS in part and DENIES
in part Defendant United Airlines, Inc.’s Motion for
Partial Dismissal of Complaint Filed December 22, 2015. ECF
December 22, 2015, Plaintiff Donna Kuehu
(“Plaintiff”) filed a Complaint against Defendant
United Airlines, Inc. (“Defendant”) in the
Circuit Court of the First Circuit, State of Hawaii. Compl.,
ECF No. 1-2. On May 4, 2016, Defendant removed the case to
federal court based on the fact that the Complaint alleges
claims arising under federal law and that there is diversity
of citizenship between the parties. Notice of Removal, ECF
No. 1. Plaintiff alleges both federal and state law claims of
disability discrimination and retaliation, as well as a claim
for intentional infliction of emotional distress
(“IIED”). Compl. ¶¶ 107-22, 162-64.
11, 2016, Defendant filed a Motion for Partial Dismissal of
Complaint Filed December 22, 2015, along with a Memorandum in
Support of Motion (“Motion”), seeking to dismiss
certain claims under the Americans with Disabilities Act
Amendments Act (“ADAAA”) and Hawaii Revised
Statute § 378-2 as time-barred; to dismiss
Plaintiff’s IIED claim due to its being barred by the
applicable statute of limitations and the exclusivity
provision of Hawaii’s workers’ compensation law;
and to dismiss Plaintiff’s claims for punitive damages
as to her discrimination claim brought under the ADAAA, as
well as her claims for both punitive and compensatory damages
for her retaliation claim brought under the ADAAA. Motion at
filed a Memorandum in Opposition to Defendant’s Motion
(“Opposition”) on August 1, 2016, ECF No. 21, and
Defendant filed a Reply Memorandum in Support of Motion
(“Reply”) on August 8, 2016, ECF No. 24.
Court held a hearing regarding Defendant’s Motion on
August 22, 2016.
August 28, 1989, Plaintiff accepted a position with Defendant
as a Reservations Sales and Service Representative in its
Honolulu call center, which was located in downtown Honolulu.
Compl. ¶ 13. Around September 2000, Defendant relocated
the call center to a warehouse building located at Honolulu
International Airport. Id. ¶¶ 16, 18. The
Complaint alleges that while working at the new building,
Plaintiff was “exposed to chronic events of reported
‘rotten egg sewer gas odor’ and ‘plumbing
and sewage problems’, noxious/toxic substances, gases
and/or biological pathogens including bacteria, viruses and
fungus microorganisms over an extended period of time.”
Id. ¶ 19.
2001, Plaintiff became totally disabled as a result of a
pre-existing condition of chronic lumbalgia (lower back
pain). Id. ¶ 21; Opposition at 2. She therefore
took a leave of absence from work from May 30, 2001 through
June 11, 2001. Compl. ¶ 21; Opposition at 2.
August 22, 2005, Plaintiff was exposed to “uncontrolled
harmful conditions” at the call center and was
evacuated by the Hazardous Material Unit of the Honolulu Fire
Department. Compl. ¶ 25. The next day, Plaintiff’s
physician advised her that she was being exposed to hydrogen
sulfide in the form of sewage backup, and certified sick
leave for Plaintiff from August 22, 2005 to August 29, 2005.
Id. ¶¶ 29-31. Plaintiff also filed a
workers’ compensation claim in connection with the
August 22 incident. Id. ¶ 31.
around January 25, 2006, following an incident in
Defendant’s building involving the release of a
noxious/toxic substance, Plaintiff’s physician assessed
her as medically unable to work. Id. ¶ 35-37.
The next day, Defendant placed Plaintiff on extended illness
status. Id. ¶ 38. Plaintiff also appears to
have filed another workers’ compensation claim for the
January 25 incident. Id. ¶ 38, 42.
October 2, 2009, after meeting with her medical providers,
Plaintiff provided Defendant with a release to return to work
and a request for a reasonable accommodation. Id.
¶ 66. On October 26, 2009, pursuant to a request by a
physician in Defendant’s medical department,
Plaintiff’s physician provided a further explanation of
conditions and recommendations for Plaintiff. Id.
¶ 73. On October 30, 2009, Defendant’s physician
completed an “Assessment of Functional
Capabilities” for Plaintiff as part of a
“post-accident/illness assessment of suitability for
return to work.” Id. The physician assessed
Plaintiff with “long-term functional limitations,
” and restricted her from working in the call center
building or for longer than 20 hours per week. Id.
contends that throughout October and into November 2009 she
attempted to schedule a meeting with Defendant’s human
resources manager, Denise Peterson, to discuss the
appropriate process for Plaintiff’s reasonable
accommodation request. Id. ¶¶ 67-72,
74-75, 78-80. This meeting was not held until November 16,
2009. Id. ¶¶ 80, 82. During the meeting,
Peterson offered Plaintiff a return to work at the call
center building, where she could work 30 hours per week with
a paper mask. Id. ¶ 80. Plaintiff did not
accept the position because it did not comport with the
physicians’ recommendations. Id. ¶¶
while waiting to hear back on her request for a reasonable
accommodation, Plaintiff had applied to an open job posting
for a regular part-time position as a customer service
representative in Kona, Hawaii. Id. ¶ 74.
Following her November 16 reasonable accommodation meeting,
Plaintiff also applied for positions in Chicago, Illinois;
St. Louis, Missouri; and Harrisburg, Pennsylvania.
Id. ¶ 83.
December 9, 2009, Plaintiff was contacted regarding the
position in Kona by a manager from Sourceright Solutions, a
third-party contractor Defendant used to assist in its hiring
processes. Id. ¶¶ 84-85. Plaintiff
attended a job testing, group interview, and one-on-one
interview for the position on December 17, 2009. Id.
¶ 88. She received a phone call on January 7, 2010
informing her that she had not been selected for the position
in Kona, and learned that she received a “very poor
assessment rating” and failed her group interview.
Id. ¶¶ 92, 94. Plaintiff was told that she
had passed the “written part” of the interview
process, but that “her response to
‘teamwork’  was not acceptable.”
Id. ¶ 95. On January 12, 2010, Plaintiff
received a phone call from Peterson informing her that she
had been terminated from her position at the company,
effective January 8, 2010. Id. ¶ 99.
January 27, 2010, Plaintiff filed a Charge of Discrimination
with the Equal Employment Opportunity Commission
(“EEOC”) and the Hawaii Civil Rights Commission
(“HCRC”), alleging both discrimination based on
her disability and retaliation by Defendant. Id.
¶ 102. On September 26, 2015, Plaintiff received from
the EEOC a right-to-sue letter dated September 23, 2015.
Id. ¶ 105. She received a right-to-sue letter
from the HCRC on December 17, 2015. Id. ¶ 106.
Plaintiff thereafter filed her Complaint in the Circuit Court
of the First Circuit, State of Hawaii, on December 22, 2015.
Rule of Civil Procedure 12(b)(6) authorizes the Court to
dismiss a complaint that fails “to state a claim upon
which relief can be granted.” The Court may dismiss a
complaint either because it lacks a cognizable legal theory
or because it lacks sufficient factual allegations to support
a cognizable legal theory. Conservation Force v.
Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011).
Rule 12(b)(6) motion to dismiss, the Court accepts all
well-pleaded factual allegations as true and construes them
in the light most favorable to the nonmoving party.
Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d
777, 783 (9th Cir. 2012). The Court may not dismiss a
“complaint containing allegations that, if proven,
present a winning case . . . no matter how unlikely such
winning outcome ...