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Wilson v. State

United States District Court, D. Hawaii

June 9, 2017



          Barry M. Kurren, United States Magistrate Judge


         Plaintiff Marcia Wilson, a former employee with the State of Hawaii judiciary, filed a Complaint asserting discrimination and retaliation claims under Title VII and a claim under the Equal Pay Act.

         Defendants State of Hawaii, State of Hawaii Judiciary, and Calvin Ching seek summary judgment with respect to the remaining Title VII retaliation claims asserted in Counts II and III and the race discrimination claim asserted in Count V.[1] Although Wilson filed no timely written opposition to the motion, the court at the hearing on the motion allowed Wilson to file an opposition to the motion no later than April 28, 2017. Wilson did not file that opposition until May 2, 2017. Nevertheless, in light of Wilson's status as a pro se party, the court declines Defendants' request to strike the untimely opposition. Having considered the positions of the parties with respect to the motion for summary judgment, the court grants the motion.

         II. BACKGROUND.

         Wilson started working for the State of Hawaii judiciary in October 1989 as an SR-8 clerk typist on Maui. See Deposition of Marcia D. Wilson at 15, ECF No. 43-5, PageID # 282. Wilson worked on Maui until October 2001, when she transferred to the State of Hawaii First Circuit Court on Oahu. At the time of her transfer, Wilson had been an SR-12 Judicial Clerk II, but took a voluntary demotion to an SR-8 Clerk Typist II position. See Wilson Depo. at 19-20, PageID # 286-87; Decl. of Lori Ann M. Okita ¶ 8, ECF No. 43-2, PageID # 259.

         After several other transfers, Wilson's position was moved to the Files & Services Section pursuant to a judiciary reorganization. Id. ¶¶ 11-17. Her direct supervisor there was Laurene Yonesaki. Id. ¶ 19. When Yonesaki transferred to another position in the Spring of 2012, the judiciary internally recruited to fill her position, selecting Lynette Leger. Id. ¶¶ 20-21, PageID # 261; Wilson Depo. at 58, ECF No. 43-5, PageID # 307 (indicating that Leger became supervisor in September 2012, about six months after Yonesaki's transfer). Wilson and Josie Espinoza had applied for the supervisor position, but were not selected. See Wilson Depo. at 57, PageID # 306.

         When Wilson did not receive the promotion, she took a week off of work, calling in sick for four days and taking vacation on the fifth day. See Wilson Depo. at 67-68, PageID # 313-14. Wilson equated being “upset” at not getting the promotion with being “sick.” Id. at 68, PageID # 314. Wilson says she took vacation on the fifth day because she knew that, pursuant to her union contract, if she called in sick five or more consecutive working days she would need to get a doctor's note. Id. at 69, PageID # 315. The following week, Wilson again called in sick Monday through Thursday. When she tried to take vacation on Friday, Wilson was told she needed to take sick leave. Id. at 71, PageID # 316.

         Knowing that she needed a doctor's note because she had taken sick leave for 5 or more consecutive days, Wilson called her doctor, explaining what had happened and why she took sick leave, asking the doctor to give her a note. The doctor agreed to give her a note and told her the note would be left “at the desk.” Id. at 72, PageID # 317. Wilson went to work the following Monday, October 8, 2012, intending to pick up the note at lunchtime. Id. at 74, PageID # 319. Wilson's supervisor told Wilson that she needed the note before she would be allowed back at work. Id. Wilson left work and caught the bus to her doctor's office, only to find that it was closed for observance of Columbus Day. Id. at 76, PageID # 321. When Wilson returned to work, she was told that she needed to go home until she had a doctor's note. Id. at 77, PageID # 322. Wilson then left work. While waiting for the bus to take her home, Wilson called the office a number of times. Id. at 77-78, PageID # 322-23; ECF No. 43-11, PageID # 361 (letter indicating Wilson called the office 19 times between 8:15 and 1:15). Wilson supposedly made “inappropriate” comments to her supervisor, resulting in her suspension pending an investigation of the matter. See Okita Decl. ¶¶ 22-23, ECF No. 43-2, PageID # 261; Oct. 9, 2012, Letter from Okita to Wilson, ECF No. 43-10, PageID # 359.

         On January 4, 2013, Wilson dual filed a Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and the Hawaii Civil Rights Commission (“HCRC”), Number 486-2013-00018, claiming Wilson suffered sex discrimination and retaliation when she was suspended. See ECF No. 43-16, PageID # 384. Wilson received a notice of her right to sue based on the claims she had made to the EEOC, but she did not timely file suit within 90 days of receiving the notice. See Wilson Depo. at 132-33, ECF No. 43-5, PageID # 341-42.

         In a letter dated March 11, 2013, the judiciary informed Wilson that, because of her behavior, “we are contemplating your dismissal . . . effective at the close of business on April 5, 2013.” ECF No. 43-11, PageID # 361. The letter stated that Wilson had made 19 telephone calls to the judiciary between 8:15 and 1:15 on October 8, 2012, and that this created a “contentious work environment.” Id.

         A meeting was then held on or about March 19, 2013, that provided Wilson with an opportunity to respond to the contemplated dismissal. After the meeting, Lori Ann M. Okita, the Chief Court Administrator, considered Wilson's contentions but affirmed her dismissal effective April 5, 2013. See ECF No. 43-12, PageID # 363-64.

         On April 17, 2013, Wilson dual filed a Charge of Discrimination with the EEOC and the HCRC, Number 486-2013-00231, claiming race and sex discrimination, as well as retaliation based on Defendants' contemplation of her termination. See ECF No. 43-16, PageID # 386. Two days later, Wilson received a notice of her right to sue based on the claims she had made to the EEOC. See ECF No. 43-16, PageID # 387. Wilson did not file suit within 90 days of receiving that notice.

         Wilson's union grieved the termination on her behalf. On June 5, 2015, an arbitrator rescinded the termination, but allowed the judiciary to suspend Wilson for up to 30 days, which it did. See Okita Decl. ¶¶ 27-29, ECF No. 43-2, PageID # 262.

         On June 29, 2015, after Wilson served the suspension, she reported back to work on Oahu for only one day. See Wilson Depo at 120, ECF No. 43-5, PageID # 336. Wilson says that the reason she only went back to work for a single day was that she had moved to Maui. She conceded that the arbitrator had provided that, if she wanted to work on Maui she could apply for a position there. Id. at 121, PageID # 337.

         On or about July 7, 2015, Wilson dual filed a Charge of Discrimination with the EEOC and the HCRC, Number 486-2015-00293, claiming race and/or national origin discrimination and retaliation. The charge stated that she was discriminated against on June 10, 2015, the day she received the letter reinstating her employment after the arbitration. See ECF No. 43-18, PageID # 388. However, the charge clearly complains about the April 5, 2013, termination. Wilson was issued a notice of right to sue on July 17, 2015. Id., PageID # 390.

         Wilson filed this action on October 13, 2015. See ECF No. 1.


         Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment shall be granted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). See Addisu v. Fred Meyer, Inc., 198 F.3d 1130, 1134 (9th Cir. 2000). The movants must support their position concerning whether a material fact is genuinely disputed by either “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for the purposes of the motion only), admissions, interrogatory answers, or other materials”; or “showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). One of the principal purposes of summary judgment is to identify and dispose of factually unsupported claims and defenses. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986).

         Summary judgment must be granted against a party that fails to demonstrate facts to establish what will be an essential element at trial. See Id. at 323. A moving party without the ultimate burden of persuasion at trial--usually, but not always, the defendant--has both the initial burden of production and the ultimate burden of persuasion on a motion for summary judgment. Nissan Fire & Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102 (9th Cir. 2000).

         The burden initially falls on the moving party to identify for the court those “portions of the materials on file that it believes demonstrate the absence of any genuine issue of material fact.” T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (citing Celotex Corp., 477 U.S. at 323). “When the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt ...

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