United States District Court, D. Hawaii
ORDER DENYING DEFENDANT'S MOTION TO
M. Kurren United States Magistrate Judge.
December 27, 2016, Plaintiff Kesio Mesi, Jr., filed a First
Amended Complaint,  alleging one count of disability
discrimination under Haw. Rev. Stat. § 378-2(1)(A),
misidentified as § 378-2(a)(1)(A), and under the
Americans With Disabilities Act (“ADA”), 42
U.S.C. §§ 12101 et seq. First Amended Complaint,
ECF No. 13, PageID # 120. Mesi alleges that he was
“discharged from his employment based on his
disability, and refused a short term accommodation to his
lifting restrictions until he was released to work full
duty.” Id., PageID # 119.
19, 2014, Mesi alleges he suffered injuries while working for
Hoskin & Muir, “which restricted his ability to
lift more than 10 pounds.” Id., PageID #s
118-19. He allegedly filed a workers' compensation claim
and reportedly submitted medical documents relating to his
injury to Hoskin & Muir's insurance carrier.
Id., PageID # 119. Mesi says that he was
“denied light duty work and remained off work and under
the care of his treating physician.” Id. On
September 26, 2014, Joe Eglin, a manager at Hoskin &
Muir, allegedly called Mesi at home to tell him that
“he was terminated because he could not work without
restrictions.” Id. On October 6, 2014, Mesi
alleges he “was released to full duty” work
without any restrictions but did not go back to work as had
already been fired. Id. Mesi alleges that he
“had no prior warnings and was performing his job
satisfactorily” before he was injured on the job.
filed a disability discrimination charge with the Hawaii
Civil Rights Commission and the Equal Employment Opportunity
Commission. Id., PageID # 118. On February 9, 2016,
the Hawaii Civil Rights Commission issued a notice of
dismissal and right-to-sue letter. Id. On March 4,
2016, the EEOC issued a dismissal and notice of rights
January 9, 2017, Hoskin & Muir filed a motion to dismiss
the First Amended Complaint. See ECF No. 16-1. That
motion is denied.
STANDARD OF REVIEW.
Rule 12(b)(6) of the Federal Rules of Civil Procedure, the
court's review is generally limited to the contents of
the complaint. Sprewell v. Golden State Warriors,
266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). All
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party. WMX
Techs., Inc. v. Miller, 197 F.3d 367, 372 (9th Cir.
1999). However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are
insufficient to defeat a motion to dismiss.
Sprewell, 266 F.3d at 988; In re Syntex Corp.
Sec. Litig., 95 F.3d 922, 926 (9th Cir. 1996). Dismissal
under Rule 12(b)(6) may be based on either: (1) lack of a
cognizable legal theory, or (2) insufficient facts under a
cognizable legal theory. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1988) (citing
Robertson v. Dean Witter Reynolds, Inc., 749 F.2d
530, 533-34 (9th Cir. 1984)).
survive a Rule 12(b)(6) motion to dismiss, “[f]actual
allegations must be enough to raise a right to relief above
the speculative level, on the assumption that all the
allegations in the complaint are true (even if doubtful in
fact).” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (internal citations omitted); accord
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(“[T]he pleading standard Rule 8 announces does not
require ‘detailed factual allegations, ' but it
demands more than an unadorned,
“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations, a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitlement to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 545 (internal citations
omitted). The complaint must provide “enough facts to
state a claim to relief that is plausible on its face.”
Id. at 570. “A claim has facial plausibility
when the plaintiff pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556
U.S. at 678.
alleges that Hoskin & Muir discriminated against him by
failing to provide reasonable accommodations and by
unlawfully terminating him because of his disability.
See ECF No. 13, PageID #s 118-121. Hoskin & Muir
asserts that Mesi fails to state any prima facie disability
discrimination claim. See ECF No. 16-1, PageID #s
134-39; ECF No. 22, PageID # 174.
prohibits employers from discriminating against “a
qualified individual on the basis of disability in regard to
. . . the hiring, advancement, or discharge of
employees.” 42 U.S.C. § 12112(a). Similarly, under
Hawaii law, it is an unlawful discriminatory practice
“[f]or any employer to refuse to hire or employ or to
bar or discharge from employment, or otherwise to
discriminate against any individual in compensation or in the
terms, conditions, or privileges of employment” because
of a person's disability. Haw. Rev. Stat. §
378-2(a)(1)(A). A plaintiff has the initial burden of
establishing a prima facie disability discrimination claim by
showing that “(1) he is a disabled person within the
meaning of the statute; (2) he is a qualified individual with
a disability; and (3) he suffered an adverse employment
action because of his disability.” Hutton v. Elf
Atochem N. Am., Inc., 273 F.3d 884, 891 (9th Cir. 2001).
The Hawaii Supreme Court has adopted this analysis for
establishing a prima facie case of disability discrimination
because of the similarities between the ADA and Hawaii law.
See French v. Haw. Pizza Hut, 105 Haw. 462, 467, 99
P.3d 1046, 1051 (2004).
respect to the first prong, the ADA defines disability with
respect to an individual, in relevant part, as “(A) a
physical or mental impairment that substantially limits one
or more of the major life activities.” 42 U.S.C. §
12102(1). Haw. Rev. Stat. § 378-1 similarly defines
disability, in pertinent part, as “the state of having
a physical or mental impairment which substantially limits
one or more major life activities.” Haw. Rev. Stat.
§ 378-1; see also Haw. Admin. R. §
12-46-182. “An impairment covered under the ADA
includes any physiological disorder, ” Coons v.
Sec'y of U.S. Dep't of Treasury, 383 F.3d 879,
884 (9th Cir. 2004), and “major life activities”
include “lifting” and “working, ” 29
C.F.R. § 1630.2(i)(1)(i); see also Haw. Admin.
R. § 12-46-182.
& Muir contends that the First Amended Complaint fails to
sufficiently allege that Mesi was “disabled.”
See Defendant's Motion to Dismiss, ECF No. 16-1,
PageID #s 135-36. Hoskin & Muir apparently does not
question that Mesi's inability to lift more than ten
pounds constitutes a physical impairment, given that
“lifting” is identified as a major life activity
under the illustrative lists of the ADA and relevant Hawaii
Administrative Rules. See 42 U.S.C. §
12102(2)(A); Haw. Admin. R. § 12-46-182; see
also 29 C.F.R. § 1630.2(i)(1)(i). However, Hoskin
& Muir argues ...