United States District Court, D. Hawaii
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT WITH
RESPECT TO COUNTS II, III, AND V
M. Kurren, United States Magistrate Judge
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.
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. 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.
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.
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.
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.
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.
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.
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.”
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.
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.
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.
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.
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.
filed this action on October 13, 2015. See ECF No.
SUMMARY JUDGMENT STANDARD.
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).
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.
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 ...