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Schwartz v. City and County of Honolulu

United States District Court, D. Hawaii

February 22, 2017

SHEFFIELD S.K.G.K. SCHWARTZ, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU, Defendant.

          ORDER GRANTING DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT (ECF NO. 43)

          Helen Gillmor, United States District Judge

         Plaintiff Sheffield S.K.G.K. Schwartz has filed a Complaint against his former employer, the City and County of Honolulu. Plaintiff alleges the Defendant failed to provide an accommodation for him in violation of the Americans with Disabilities Act.

         The Defendant City and County of Honolulu seeks summary judgment. The Defendant asserts that Plaintiff was employed as a refuse collector and was absent from work without authorization from January 3, 2012 to April 28, 2012. Defendant asserts that Plaintiff was terminated in October 2012 due to his four-month unauthorized work absence.

         The Defendant City and County of Honolulu's Motion for Summary Judgment (ECF No. 43) is GRANTED.

         PROCEDURAL HISTORY

         On November 19, 2014, Plaintiff filed a Complaint. (ECF No. 1).

         On April 8, 2015, the Defendant filed a Motion to Dismiss. (ECF No. 11).

         On April 21, 2015, Plaintiff filed a FIRST AMENDED COMPLAINT. (ECF No. 16).

         On April 24, 2015, the Defendant filed a Notice of Withdrawal of its Motion to Dismiss. (ECF No. 19).

         On September 28, 2015, Defendant filed a Motion to Compel Discovery and for an Award of Attorneys' Fees and Costs. (ECF No. 26).

         On November 10, 2015, the Magistrate Judge held a Status Conference and denied Defendant's Motion to Compel Discovery and for an Award of Attorneys' Fees and Costs without prejudice. (ECF No. 32).

         On August 25, 2016, the Parties requested a continuance of the trial date and trial-related deadlines, which was granted. (ECF No. 40).

         On November 15, 2016, Defendant filed DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT (ECF No. 43) and DEFENDANT CITY AND COUNTY OF HONOLULU'S SEPARATE AND CONCISE STATEMENT OF FACTS. (ECF No. 44).

         On December 5, 2016, Plaintiff filed PLAINTIFF SHEFFIELD S.K.G.K. SCHWARTZ'S MEMORANDUM IN OPPOSITION TO DEFENDANT CITY AND COUNTY OF HONOLULU'S MOTION FOR SUMMARY JUDGMENT (ECF No. 49) and PLAINTIFF SHEFFIELD S.K.G.K. SCHWARTZ'S CONCISE STATEMENT OF FACTS IN RESPONSE TO DEFENDANT CITY AND COUNTY OF HONOLULU'S CONCISE STATEMENT OF FACTS IN SUPPORT OF DEFENDANT'S MOTION FOR SUMMARY JUDGMENT. (ECF No. 48).

         On December 12, 2016, Defendant filed its Reply. (ECF No. 50).

         On January 5, 2017, the Court held a hearing on Defendant's Motion for Summary Judgment.

         BACKGROUND

         The Parties do not dispute the following facts:

         Plaintiff Sheffield S.K.G.K. Schwartz was employed as a refuse collector with the City and County of Honolulu. (Declaration of David Shiraishi (“Shiraishi Decl.”), Refuse Collection Administrator with the City and County of Honolulu's Environmental Services Division, at ¶ 8, ECF No. 44-2).

         Plaintiff held the position for approximately thirty years from 1982 until October 2012. (Id.; Declaration of Kassydy Manuel (“Manuel Decl.”), Daughter of Plaintiff, at ¶ 11, ECF No. 48-2).

         COLLECTIVE BARGAINING AGREEMENT

         Plaintiff was subject to a Collective Bargaining Agreement as a union employee member of the United Public Workers. (Shiraishi Decl. at ¶¶ 4-5, ECF No. 44-2). The Collective Bargaining contained provisions governing sick leave. (Id.) Section 37.06 of the Collective Bargaining Agreement concerning sick leave provided, as follows:

The Employee shall submit a licensed physician's certificate for absences of five (5) or more consecutive workdays to substantiate that the absence was due entirely to sickness and that the Employee is physically and/or mentally able to resume the duties of the Employee's position.

         (Unit 1 Collective Bargaining Agreement, attached as Ex. A to Def.'s Concise Statement of Facts (“CSF”), at p. 90, Section 37.06, ECF No. 44-4).

         In addition, the Collective Bargaining Agreement required medical certification for a leave of absence without pay of five days or more. Section 38.08a of the Collective Bargaining Agreement stated:

To recuperate from physical or mental illnesses provided for a leave of absence without pay of five (5) or more consecutive working days, an Employee shall submit a licensed physician's certificate to substantiate the leave of absence without pay was due entirely to sickness and that the Employee is physically and/or mentally able to resume the duties of the Employee's position.

(Id. at p. 97, Section 38.08a).

         The Collective Bargaining Agreement contained a section governing unauthorized leaves of absence. The Agreement provided:

         38.11 UNAUTHORIZED LEAVE OF ABSENCE

38.11a. An absence from work which does not meet the requirements for an authorized leave, with or without pay, shall be charged as unauthorized leave of absence from work.
38.11b. The unauthorized leave of absence from work shall not be considered as service rendered.
38.11c. When an Employer decides to discipline an Employee as provided in Section 38.11a. for unauthorized leave of absence without pay the discipline for just and proper cause as provided in Section 11.01 shall be as follows:
38.11c.1. Each day of unauthorized leave of absence without pay shall be considered as one (1) violation.
38.11c.2. Each violation shall be considered as unauthorized leave of absence without pay for payroll purposes and shall result in discipline as provided in the following schedule:

Violation

Discipline

1st

Written reprimand

2nd

One (1) day suspension

3rd

Two (2) day suspension

4th

Four (4) days suspension

5th

Eight (8) days suspension

6th

Fifteen (15) days suspension

7th

Thirty (30) days suspension

8th

Discharge

(Id. at p. 99, Section 38.11).

         CITY AND COUNTY OF HONOLULU CIVIL SERVICE RULES

         Plaintiff's employment was also subject to the Civil Service Rules of the City and County of Honolulu. (Shiraishi Decl. at ¶ 10, ECF No. 44-2). The City and County's Civil Service Rules contained a provision stating that an employee would be placed on leave without pay status if the employee was absent without authorization:

         §8-9 Unauthorized leave of absence.

An employee who is absent from duty without proper authorization shall be placed on unauthorized leave of absence without pay.

         (Civil Services Rules of the City and County of Honolulu, attached as Ex. B to Def.'s CSF, ECF No. 44-5).

         PLAINTIFF'S ABSENCE FROM WORK BETWEEN JANUARY 2012 TO APRIL 2012

         Plaintiff's absence from work started on January 3, 2012. (Attendance Log for Plaintiff's absences from January to April 2012, attached as Ex. C to Def.'s CSF, ECF No. 44-6).

         Plaintiff called daily to request leave for each workday from January 3, 2012 to April 28, 2012. (Id.) Plaintiff provided a variety of reasons for his leave requests including “back pain, ” “sick, ” “flu, ” “emergency vacation, ” and “child care.” (Id.)

         The Attendance Log indicates that Plaintiff requested leave for 89 days between January 3, 2012 and April 28, 2012. (Id.) The Log indicates that over the four-month period, each day Plaintiff consistently informed his employer that he would return to work the following workday. (Id.; E-mails dated April 19 and April 20, 2012 between City and County Staff regarding Plaintiff's leave requests, attached as Ex. 11 to Pla.'s CSF, ECF No. 48-13).

         Plaintiff called in requesting leave due to sickness 78 times between January and April 2012. (Attendance Log, attached as Ex. C to Def.'s CSF, ECF No. 44-6). Plaintiff provided a variety of different explanations as to why he was requesting sick leave. Plaintiff requested sick leave due to pain in his back on 11 occasions. (Id.) Plaintiff also called in on multiple days claiming to have the flu. (Id.) On more than 50 workdays, Plaintiff requested sick leave and did not provide any information as to the ailment that impaired his ability to work. (Id.)

         Plaintiff requested “emergency vacation leave” 11 times. (Id.) Plaintiff stated that he needed to take emergency vacation to provide child care for his son or for his family members. (Id.)

         On April 19, 2012, after being alerted to the Plaintiff's protracted absence, David Shiraishi, the City and County's Refuse Collection Administrator, spoke with Plaintiff concerning his leave requests. (Shiraishi Decl. at ¶ 13, 16, 18, ECF No. 44-2)). Plaintiff asked Shiraishi if he could return to work the following day, despite his nearly four months of absences and the variety of reasons proffered for his absences. (E-mail from David Shiraishi to Bert Wong at p. 2, dated April 19, 2012, attached as Ex. 11 to Pla.'s CSF, ECF No. 48-13).

         Shiraishi requested that Plaintiff provide a doctor's note for the 78 absences where he requested sick leave. (Id.; Shiraishi Decl. at ¶ 15, ECF No. 44-2). Plaintiff told Shiraishi that he could not get a doctor's note because he was not absent due to sickness. (Shiraishi Decl. at ¶ 15, ECF No. 44-2).

         On April 19, 2012, Shiraishi informed Plaintiff he could return to work the next day on April 20, 2012, but he would need documentation to verify his absences for his sick leave and verification that he could return to work. (E-mail from David Shiraishi at p. 3, attached as Ex. 11 to Pla.'s CSF, ECF No. 48-13).

         Plaintiff did not return to work on April 20, 2012. He requested emergency vacation leave from April 20, 2012 to April 28, 2012. (Attendance Log at p. 3, attached as Ex. C to Def.'s CSF, ECF No. 44-6).

         INVESTIGATION INTO PLAINTIFF'S FOUR-MONTH ABSENCE FROM WORK

         On April 20, 2012, the Defendant City and County of Honolulu began an investigation into Plaintiff's absences from work between January and April 2012. (E-mails dated April 20, 2012 between City and County Staff, attached as Ex. 11 to Pla.'s CSF, ECF No. 48-13).

         Plaintiff continued to be absent from work during the investigation. There is no indication in the record that Plaintiff returned to work at any time following the start of the investigation on April 20, 2012.

         The Declaration of Plaintiff's daughter, Kassydy Manuel, states that Plaintiff sought to return to work in May 2012 but the Defendant City and County of Honolulu would not let him return. (Manuel Decl. at ¶ 21, ECF No. 48-2).

         First Disability Certificate's Lack of Information

         During the investigation, Defendant requested medical evidence from Plaintiff to support his 78 requests for sick leave between January 2012 and April 2012.

         On May 3, 2012, Plaintiff provided the Defendant City and County of Honolulu with a “Disability Certificate.” (First Disability Certificate attached as Ex. 2 to Pla.'s CSF, ECF No. 48-4). The certificate was signed by Dr. Kenneth M. Sunamoto. (Id.) The document stated Plaintiff was incapacitated from February 1, 2012 to May 4, 2012. (Id.)

         Dr. Sunamoto's certificate did not state the reasons for Plaintiff's incapacitation. There was no indication as to what illness or disability prevented Plaintiff from working. There was no medical information provided on the certificate. There was no evidence that Plaintiff had been examined by Dr. Sunamoto. (Id.) The certificate only contained a checked box stating that Plaintiff was “sufficiently recovered to resume a normal workload.” (Id.)

         The Second Disability Certificate Also ...


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