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Kuehu v. United Airlines, Inc.

United States District Court, D. Hawaii

May 26, 2017

DONNA KUEHU, Plaintiff,


          Alan C. Kay Sr. United States District Judge.

         For the reasons set forth below, the Court GRANTS Defendant's Motion for Summary Judgment, ECF No. 44 (“Motion”).


         On January 25, 2010, Plaintiff Donna Kuehu (“Plaintiff”) filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Hawaii Civil Rights Commission (“HCRC”) alleging discrimination based on her disability and retaliation by Defendant United Airlines (“Defendant”). Declaration of Eileen Zorc (“Zorc Decl.”), Ex. J, ECF No. 45-15. The EEOC issued a right-to-sue letter on September 23, 2015, and the HCRC issued the same on December 17, 2015. Compl. ¶¶ 105-06, ECF No. 1-2.

         On December 22, 2015, Plaintiff filed a complaint against Defendant in state court. See Compl. Plaintiff alleged both federal and state law claims of disability discrimination, and a claim for intentional infliction of emotional distress (“IIED”). Compl., ¶¶ 107-22, 162-64. Defendant removed the case to federal court on the basis of diversity jurisdiction on May 4, 2016. Notice of Removal, ECF No. 1.

         On August 23, 2016, the Court granted in part and denied in part Defendant's Motion for Partial Dismissal. ECF No. 27. First, the Court held based on the applicable statutes of limitations that Plaintiff could only base federal claims under the Americans with Disability Act Amendments Act (“ADA”) on events on or after April 2, 2009 and state claims under Hawaii Revised Statute (“HRS”) § 378-2 on events on or after July 31, 2009. Id. at 10-11. Second, the Court dismissed Plaintiff's IIED claim. Id. at 19-22. Finally, the Court held that Plaintiff could not seek punitive or compensatory damages on her federal retaliation claim, but could seek punitive damages on her federal discrimination claim. Id. at 23.

         Defendant filed the instant Motion on March 1, 2017 seeking summary judgment on all remaining claims. Plaintiff filed her Opposition on May 1, 2017. ECF No. 65 (“Opp.”). Defendant filed its Reply on May 8, 2017. ECF No. 77 (“Reply”).

         The Court held a hearing on Defendant's Motion on May 22, 2017.


         Until she was terminated on January 8, 2010, Plaintiff was employed as a Reservations Sales Representative (“RSSR”) in Defendant's call center in Honolulu. Defendant's Concise Statement of Facts ¶¶ 1, 24, ECF No. 45 (“Def. CSF”).[1] In 2000, the call center was relocated to a building at the Honolulu Airport (“Reservations Center”). Id. ¶ 1. On August 22, 2005, Plaintiff claims she was “exposed to uncontrolled harmful conditions, ” which her doctor advised was hydrogen sulfide. Declaration of Donna Kuehu ¶¶ 15, 20, ECF No. 55-3 (“Kuehu Decl.”);[2] Ex. D, ECF No. 56-3 (Dr. Seberg's conclusion of hydrogen sulfide exposure). Plaintiff also complained of an odor at the Reservations Center on January 25, 2006, which Plaintiff asserts was due to the “release of a noxious/toxic substance.” Kuehu Decl. ¶ 25; Def. CSF ¶ 2. Plaintiff's doctors diagnosed her with multiple chemical sensitivity, fibromyalgia, and migraine and chronic fatigue syndrome, which she asserts render her disabled under the ADA. Kuehu Decl. ¶ 48; Opp. at 23-24.

         On January 26, 2006, Defendant placed Plaintiff on Extended Illness Status (“EIS”) pursuant to Plaintiff's union's Collective Bargaining Agreement (“CBA”). Kuehu Decl. ¶ 28; Def. CSF ¶ 3; Declaration of Denise Peterson ¶ 3, ECF No. 45-22 (“Peterson Decl.”). EIS allows an employee to be on leave for up to three years. Peterson Decl. ¶ 3. Termination after the expiration of EIS is “automatic” unless Defendant exercises its discretion to extend the EIS. Zorc Decl., Ex. G, Declaration of Carolyn A. Schoeneman ¶ 3, ECF No. 45-9.

         Defendant informed Plaintiff by letters on August 19, 2009 and September 21, 2009 that her EIS would expire on October 23, 2009. Def. CSF ¶ 16. Shortly thereafter, Plaintiff's doctors, who had previously certified that she was unable to work due to “toxic chemical exposure, ” released her to work effective October 21, 2009 on a 20-hour per week schedule in a location which would not expose her to toxic fumes. Id. ¶¶ 13, 16. Defendant requested additional information regarding Plaintiff's medical status and limitations and extended her EIS status to allow time to obtain the information. Id. ¶ 18. After that information was provided, Plaintiff met with Defendant's representatives, including Denise Peterson, the supervisor of the Reservations Center, on November 16, 2006. Peterson Decl. ¶ 1; see Kuehu Decl. ¶¶ 66, 73. The parties did not agree on an accommodation which would enable Plaintiff to return from leave and resume working as an RSSR in Hawaii. See Def. CSF ¶¶ 19-21; Kuehu Decl. ¶¶ 73-77.

         Plaintiff then applied for Customer Service Representative (“CSR”) positions in several locations. Def. CSF ¶ 22. Defendant used SourceRight Solutions Manager (“SourceRight”), an independent, third-party contractor, to conduct screenings and interviews for the CSR position. Id. ¶ 23. Laura Butler of SourceRight interviewed Plaintiff for a CSR position in Kona, Hawaii. Id. Defendant agreed to extend Plaintiff's EIS pending the results of her CSR interview. See id. ¶ 24. However, Plaintiff's interview score fell in the “Not Recommended” category, and as such Ms. Butler determined Plaintiff was not qualified and did not select her. Id. ¶ 23. SourceRight informed Plaintiff on January 7, 2010 of her non-selection, and Defendant then informed Plaintiff of her termination, effective January 8, 2010. Id. ¶ 24.

         After termination, Plaintiff applied for various jobs, and worked in a seasonal position for the U.S. Census Bureau until the end of August 2010. Kuehu Decl. ¶ 102. She did not receive responses regarding other job applications. Id. Plaintiff has also been pursuing her education, including bachelor's degrees, a master's degree, and currently a Ph.D. Def. CSF ¶ 29.[3] Plaintiff has additionally participated in a work-study program and worked part-time as a college tutor and research assistant. Kuehu Decl. ¶ 103.

         During this time, Plaintiff also filed: (1) worker's compensation claims regarding both the August 22, 2005 and January 25, 2006 incidents; and (2) whistleblower claims against Defendant with the Department of Labor alleging violations of employee protection provisions in four environmental statutes. Def. CSF ¶¶ 4, 25; Memorandum of the Intermediate Court of Appeals at 3, Zorc Decl., Ex. D, ECF No. 45-5 (“ICA Mem. Op.”); ALJ Decision & Order Denying Claims, Zorc. Decl., Ex. H, ECF No. 45-13 (“ALJ Decision”).

         Plaintiff's worker's compensation claims were consolidated and initially found compensable in 2007, but the Hawaii Labor and Industrial Relations Appeals Board (“LIRAB”) reversed the decision on appeal finding that she failed to establish her claimed work injuries of multiple chemical sensitivity, chronic pain syndrome, fibromyalgia, or candidiasis existed. Def. CSF ¶¶ 4, 11; LIRAB Decision & Order, Zorc Decl., Ex. C, ECF No. 45-4 (“LIRAB Decision”). The LIRAB also held that Plaintiff suffered from an undifferentiated somatoform disorder based on an “unsubstantiated and incorrect belief that she was exposed to dangerous levels of toxic substances.” Def. CSF ¶ 11. The Hawaii Intermediate Court of Appeals affirmed the LIRAB's decision, and the Hawaii Supreme Court denied a writ of certiorari. Def. CSF ¶ 12; see ICA Mem. Op.

         Plaintiff's environmental whistleblower claims, filed in 2010, were denied on May 25, 2012. ALJ Decision at 22-29; Def. CSF ¶ 25. The ALJ found inter alia that Plaintiff had not demonstrated a causal connection between her protected activity as an environmental whistleblower and her termination. ALJ Decision at 22-29; Def. CSF ¶ 25. The ALJ's decision was affirmed by the Administrative Review Board (“ARB”) on February 10, 2014. Final Decision & Order, Zorc. Decl, Ex. I, ECF No. 45-14 (“ARB Decision”); Def. CSF ¶ 27. Plaintiff did not further appeal. Def. CSF ¶ 27.


         Summary judgment is proper where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure (“Rule”) 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to the party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal., at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323); see also Jespersen v. Harrah's Operating Co., 392 F.3d 1076, 1079 (9th Cir. 2004). “When the moving party has carried its burden under Rule 56[(a)] its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986) (stating that a party cannot “rest upon the mere allegations or denials of his pleading” in opposing summary judgment).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor”).


         I. Disability Discrimination Claims

         To establish a prima facie case of disability discrimination, Plaintiff must demonstrate that “(1) she is a disabled person within the meaning of the ADA; (2) she is a qualified individual, meaning she can perform the essential functions of her job; and (3) [Defendant] terminated her because of her disability.”).[4] Nunes v. Wal-Mart Stores, Inc., 164 F.3d 1243, 1246 (9th Cir. 1999). Under the ADA and HRS § 378-2, a disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A); HAR § 12-46-182 (same definition). A physical impairment includes “[a]ny physiological disorder or condition...affecting one or more body systems, ” and a mental impairment is “[a]ny mental or psychological disorder, ” such as an emotional or mental illness. 29 C.F.R. § 1630.2(h).

         A. Whether Plaintiff is Precluded From Establishing Her Claimed Impairments

         Defendant asserts that Plaintiff is precluded from establishing that she is disabled by virtue of the LIRAB Decision affirmed by the ICA. Motion at 16-20. Under 28 U.S.C. § 1738, “a federal court ‘must give to a state-court judgment the same preclusive effect as would be given that judgment under the law of the State in which the judgment was entered.'” White v. City of Pasadena, 671 F.3d 918, 926 (9th Cir. 2012) (citing Migra v. Warren City Sch. Dist. Bd. of Ed., 465 U.S. 75, 81 (1984)). “The same rule applies to administrative proceedings that have been upheld by state courts.” Id. In Hawaii,

the test for collateral estoppel has four elements: (1) the fact or issue in the present action is identical to the one decided in the prior adjudication; (2) there was a final judgment on the merits in the prior adjudication; (3) the parties present in the action are the same or in privity with the parties in the prior action; and (4) the fact or issue decided in the prior action was actually litigated, finally decided, and essential to the earlier valid and final judgment.

Dannenberg v. Hawaii, 139 Haw. 39, 60, 383 P.3d 1177, 1198 (2016); see also Sheehan v. Cty. of Kaui, Civ. No. 12-00195 HG-BMK, 2013 WL 1342364, at *11 (D. Haw. Mar. 29, 2013) (citing same elements for purposes of full faith and credit and collateral estoppel under Hawaii law).

         Neither the second nor third element of the collateral estoppel test is at issue. There is no question that both Plaintiff and Defendant here were parties in the worker's compensation litigation and that the ICA opinion is a final decision on the merits. The dispute lies in whether there is an identity of issues. Plaintiff argues that her worker's compensation case addressed whether her injuries arose from the workplace, and disability under the ADA is not limited to the workplace. Opp. at 24-25. Defendant focuses on the factual findings underlying the LIRAB's ultimate determination. See Reply at 2-7. After studying the parties' briefs, the Court ...

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