United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY
C. Kay Sr. United States District Judge.
reasons set forth below, the Court GRANTS Defendant's
Motion for Summary Judgment, ECF No. 44
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.
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.
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.
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
Court held a hearing on Defendant's Motion on May 22,
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”). 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.”); 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.
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.
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.
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.
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. Plaintiff has additionally
participated in a work-study program and worked part-time as
a college tutor and research assistant. Kuehu Decl. ¶
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”).
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.
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.
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).
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
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
Disability Discrimination Claims
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.”). 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. §
Whether Plaintiff is Precluded From Establishing Her
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
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
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).
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 ...