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Li v. City and County of Honolulu

United States District Court, D. Hawaii

July 14, 2017

QIN LI, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU, Defendant.

          ORDER DENYING PLAINTIFF'S MOTION FOR LEAVE TO FILE LATE OPPOSITION TO DEFENDANT'S MOTION FOR SUMMARY JUDGMENT FILED ON MARCH 8, 2017; AND GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT

          LESLIE E. KOBAYASHI UNITED STATES DISTRICT JUDGE.

         Before the Court are: Defendant City and County of Honolulu's (“Defendant”) Motion for Summary Judgment, filed on March 8, 2017; and Plaintiff Qui Li's (“Plaintiff”) motion seeking leave to file a late memorandum in opposition to the Motion for Summary Judgment (“Motion for Leave”), filed on April 14, 2017. [Dkt. nos. 57, 67.] The Court finds these matters suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai`i (“Local Rules”).

         Plaintiff's Motion for Leave is denied, and Defendant's Motion for Summary Judgment is denied as to Plaintiff's claim that her termination was in retaliation for engaging in protected activity, and the motion is granted as to all of Plaintiff's other claims.

         BACKGROUND

         Plaintiff filed her Complaint on December 22, 2014. The Complaint alleges that Defendant terminated Plaintiff's employment because of her national origin - Chinese - and in retaliation for her complaints about workplace discrimination. [Complaint at ¶ 3.] The Complaint alleges the following claims: discrimination based on national origin, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e, et seq. (“Count I”); intentional infliction of emotional distress (“IIED” and “Count II”); and retaliation, in violation of 42 U.S.C. § 12203 (“Count III”). Plaintiff prays for the following relief: reinstatement her employment; general damages; special damages, including back pay, front pay, and other expenses; punitive damages; attorneys' fees and costs; interest; and any other appropriate relief.

         The following facts are relevant to the Motion for Summary Judgment. In June 2013, Defendant hired Plaintiff as a Driver Licensing Clerk (“Clerk”) at the Kapalama/City Square Office (“Kapalama Office”). Jacqueline Windrath - the Supervising Clerk at the Kapalama Office - interviewed Plaintiff for the position and recommended that Defendant hire her. At the time of the interview, Ms. Windrath was aware that Plaintiff is of Chinese descent. [Def.'s Separate & Concise Statement of Facts (“Def.'s CSOF”), filed 3/8/17 (dkt. no. 55), at ¶¶ 1-3.[1] Ms. Windrath states that her own “race is Chinese, Japanese, Filipino, and Spanish.” [Def.'s CSOF, Decl. of Jacqueline Windrath (“Windrath Decl.”) at ¶ 3.]

         In 2013, Defendant hired eleven new Clerks for the Kapalama Office. Six of the eleven new Clerks were hired during June and July. Four of the eleven new Clerks were government transfers. During the relevant period, unless a new Clerk was a government transfer, he or she had a probationary review after approximately three months, and another after approximately six months. These reviews included a meeting between Ms. Windrath and the Clerk, during which they discussed any errors the Clerk made, how the Clerk could improve, and how the Clerk could satisfactorily complete the probationary period. [Id. at ¶¶ 5-6.] During the relevant period, Ms. Windrath also discussed Clerk errors and/or performance problems during counseling sessions so that the Clerk had the opportunity to correct the errors and/or problems. Prior to the end of the six-month probationary period, Ms. Windrath recommended whether the Clerk should be given permanent employment status, be terminated, or have his or her probationary period extended. [Id. at ¶¶ 8-9.]

         Plaintiff and the six other Clerks hired in 2013 who were not government transfers received the three-month and six-month probationary reviews. [Id. at ¶ 7.] In Plaintiff's three-month Probationary Performance Evaluation Report (“Three-Month PPER”), signed on September 4, 2013, Ms. Windrath rated Plaintiff's overall performance as satisfactory. Specifically, Ms. Windrath rated Plaintiff's work-quality, work-quantity, reliability and initiative, relationships with others, and job knowledge as satisfactory. [Windrath Decl. at ¶ 31 (authenticating Exhibit 5); Def.'s Second Suppl. to Def.'s CSOF (“Second Supplement”), filed 3/10/17 (dkt. no. 61), Exh. 5.[2] In the comments section of the Three-Month PPER, Ms. Windrath described Plaintiff as “very pleasant when serving the public.” [Second Supplement, Exh. 5.] Although she considered Plaintiff's work to be satisfactory “for a person at th[at] stage of training, ” Ms. Windrath counseled Plaintiff about “numerous errors she made.” [Windrath Decl. at ¶¶ 28, 30.] These errors included problems with accuracy, completeness, and following procedure. [Id. at ¶ 30; Second Supplement, Exh. 4 (Employee Performance Evaluation Worksheet (“EPEW”) documenting Ms. Windrath's 9/4/13 counseling session with Plaintiff).]

         During Plaintiff's six-month probationary period, Plaintiff “had serious and numerous performance deficiencies for which she was counseled on multiple occasions.” [Def.'s CSOF at ¶ 10; Windrath Decl. at ¶¶ 34, 38, 40, 42, 45; Second Supplement, Exh. 6 (EPEW for 9/18/13 counseling session), Exh. 7 (EPEW regarding incident between Plaintiff and a licensing applicant on 10/7/13 (“10/7/13 Incident”)), Exh. 8 (EPEW documenting Ms. Windrath's 10/8/13 counseling session with Plaintiff regarding the 10/7/13 incident), Exh. 9 (EPEW for 10/14/13 counseling session), Exh. 10 (EPEW for 11/19/13 counseling session).] During the counseling sessions, Plaintiff was argumentative, but she indicated a desire to change. Ms. Windrath therefore recommended that Plaintiff's probationary period be extended in lieu of termination of employment. [Def.'s CSOF at ¶¶ 11-12; Windrath Decl. at ¶ 68, Exh. 17 at 1 (Pltf.'s Six-Month PPER, signed 12/12/13).] In Plaintiff's Six-Month PPER, Ms. Windrath rated Plaintiff's work-quality, work-quantity, relationships with others, job knowledge, and overall performance as substandard. [Windrath Decl., Exh. 17 at 1.]

         Based on Ms. Windrath's recommendation, Defendant extended Plaintiff's probationary period for an additional three months.[3] However, Plaintiff continued to perform poorly and to make mistakes. [Def.'s CSOF at ¶¶ 13-14; Windrath Decl. at ¶¶ 51-52, 54, 56; Second Supplement, Exh. 12 (EPEW for 1/13/14 counseling session), Exh. 13 (EPEW for 1/14/14 counseling session), Exh. 14 (EPEW for 1/29/14 counseling session), Exh. 15 (EPEW for 2/6/14 counseling session).] Defendant submitted documents and records that Ms. Windrath provided to Plaintiff during the various counseling sessions so that Plaintiff could see the errors that she had made. [Windrath Decl. at ¶ 58, Exh. 16.]

         Prior to the completion of Plaintiff's additional three-month probationary period, Ms. Windrath submitted a PPER recommending Plaintiff's termination (“Nine-Month PPER”).[4] [Id. at ¶ 68, Exh. 17 at 2-3.] Ms. Windrath again rated Plaintiff's work-quality, work-quantity, relationships with others, job knowledge, and overall performance as substandard. [Windrath Decl., Exh. 17 at 2.] Defendant ultimately terminated Plaintiff's employment “because of her continued poor performance and rudeness.” [Def.'s CSOF at ¶ 15.] According to Defendant, there was no disparity between how Plaintiff was treated and how other probationary Clerks were treated. In fact, Defendant gave Plaintiff favorable treatment. [Id. at ¶¶ 16-17.] Ms. Windrath has recommended the termination of other employees after their six-month probationary period when their performance was not satisfactory. [Windrath Decl. at ¶¶ 47-48; Second Supplement, Exh. 11 (PPER recommending termination of another employee).] In spite of the history of terminating Clerks who under-performed during probation, both Plaintiff and another Clerk hired in June 2013 were allowed an additional three-month probationary period to improve. The other Clerk who had an extended probationary period was of Filipino descent. [Windrath Decl. at ¶ 26.]

         Ms. Windrath and Director Sheri Kajiwara - who is also of Chinese descent - state that they did not know about Plaintiff's protected activity before they made the decision to terminate Plaintiff's employment, and they did not retaliate against her for engaging in protected conduct.[5] [Def.'s CSOF at ¶¶ 18-19.] Ms. Windrath has denied having “discriminatory animus against people of Chinese descent/origin.” [Id. at ¶ 20.]

         Ms. Windrath also denies fabricating any claims against Plaintiff. [Id. at ¶ 22.]

         Defendant seeks summary judgment as to all of the claims in the Complaint.

         DISCUSSION

         I. Motion for Leave

         Defendant's Motion for Summary Judgment was originally scheduled for hearing on April 17, 2017. Local Rule 7.4 states, in pertinent part: “An opposition to a motion set for hearing shall be served and filed not less than twenty-one (21) days prior to the date of hearing.” However, because twenty-one days before April 17, 2017 was March 27, 2017, which was a legal holiday, Plaintiff's opposition was due on March 24, 2017. See Local Rule LR6.1.

         On March 27, 2017, Plaintiff's counsel filed a response to the Motion for Summary Judgment, stating that counsel prepared a memorandum in opposition, but did not file it because Plaintiff failed to come to counsel's office to sign a declaration necessary to the memorandum in opposition. Counsel stated that they would be filing a motion seeking a continuance of the hearing on the Motion for Summary Judgment. As of April 4, 2017, however, Plaintiff's counsel had not filed a motion seeking a continuance of the hearing. This Court therefore issued an entering order finding that Defendant's Motion for Summary Judgment was unopposed, vacating the hearing, and taking the motion under advisement (“4/4/17 EO”). [Dkt. no. 66.] The 4/4/17 EO also stated that, in light of Plaintiff's failure to file a concise statement of facts responding to Defendant's CSOF, this Court deemed all statements of material fact in Defendant's CSOF to be admitted. See Local Rule LR56.1(g) (“For purposes of a motion for summary judgment, material facts set forth in the moving party's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party.”). Plaintiff's Motion for Leave followed.

         The Motion for Leave includes the Declaration of Charles H. Brower (“Brower Declaration”). Mr. Brower states that he left the state on a trip on the night of March 24, 2017, but Plaintiff's response to Defendant's CSOF and Plaintiff's declaration were prepared for filing prior to his departure. Plaintiff was instructed to come to Mr. Brower's office on March 27, 2017 to sign her declaration, but she later informed Mr. Brower that she could not do so and that she wanted to meet with him to review the declaration before signing it. [Brower Decl. at ¶¶ 2-5.] Mr. Brower states that, “[d]ue to the aforesaid trip, [he] could not meet with Plaintiff before March 27, 2017.” [Id. at ¶ 6.] Mr. Brower met with Plaintiff on April 11, 2017, and she signed her declaration. [Id. at ¶ 7.]

         Plaintiff's declaration - including its exhibits - and Plaintiff's response to Defendant's CSOF are attached to the Brower Declaration as Exhibits 1 and 2, respectively.

Fed. R. Civ. P. 6(b)(1) states:
When an act may or must be done within a specified time, the court may, for good cause, extend the time:
(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or
(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

         In the instant case, Plaintiff's memorandum in opposition to the Motion for Summary Judgment and her response to Defendant's CSOF were due by March 24, 2017, but Plaintiff did not file the Motion for Leave until April 14, 2017. Thus, Plaintiff must show that her failure to take timely action was the result of excusable neglect. This district court has stated:

To determine whether a party's failure to meet a deadline constitutes excusable neglect, courts must examine: (1) the danger of prejudice to the opposing party; (2) the length of the delay and its potential impact on the proceedings; (3) the reason for the delay; and (4) whether the movant acted in good faith. See Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P'ship, 507 U.S. 380, 395, 113 S.Ct. 1489, 123 L.Ed.2d 74 (1993); Comm. for Idaho's High Desert, Inc. v. Yost, 92 F.3d 814, 825 n.4 (9th Cir. 1996) (concluding that the Pioneer test applies to Rule 6(b) motions).

Dawkins v. City & Cty. of Honolulu, Civ. No. 10-00086 HG-KSC, 2012 WL 1536111, at *3 (D. Hawai`i Apr. 27, 2012).

         Defendant would not be prejudiced if this Court granted the Motion for Leave because this Court would allow Defendant to file a reply. Further, while this Court does not condone Plaintiff's and her counsel's failure to abide by the applicable deadlines, the twenty-one-day delay between the deadline for Plaintiff's response to the Motion for Summary Judgment and the filing of her Motion for Leave would not have a significant impact on the proceedings. Thus, the first and second Pioneer factors weigh in favor of a finding of excusable neglect.

         As to the reason for the delay, it is understandable that Plaintiff wanted to meet with Mr. Brower - who appears to be the lead counsel for Plaintiff - before signing her declaration, and this Court does not fault Mr. Brower for taking a trip. However, Mr. Brower should have prepared Plaintiff's declaration with sufficient time before his trip to allow him to meet with her before his departure. He asserts that he could not meet with Plaintiff before March 27, 2017 because of his trip, [6] but he does not explain why the trip prevented him from meeting with Plaintiff prior to his departure on March 24, 2017. Moreover, even if the trip did prevent Mr. Brower from meeting with Plaintiff prior to his departure, Mr. Brower could have requested a continuance of the hearing and an extension of the deadline to file Plaintiff's opposition. Further, Mr. Brower's co-counsel, Michael Healy, Esq., filed the Response on March 27, 2017, and there is no explanation in the record why Mr. Healy could not have filed a motion for a continuance instead of filing the Response. As previously noted, Plaintiff never filed the motion for a continuance referred to in the Response. This Court therefore finds that the third Pioneer factor - the reason for the delay in filing the Motion for Leave - weighs against Plaintiff.

         For similar reasons, this Court also finds that there is insufficient evidence in the record to support a finding that Plaintiff and her counsel have acted in good faith in responding to Defendant's Motion for Summary Judgment. This Court therefore finds that the fourth Pioneer factor - whether the moving party has acted in good faith - weighs against Plaintiff.

         This Court acknowledges that it is a close question whether there was excusable neglect in this case. This Court has carefully considered the two factors that weigh in favor of a finding of excusable neglect and the two factors that weigh against it. Under the circumstances of this case, this Court finds that the two factors weighing against a finding of excusable neglect are the more persuasive factors. This Court therefore finds that Plaintiff's failure to file either her memorandum in opposition to the Motion for Summary Judgment or a motion for a continuance was not the result of excusable neglect. This Court, in the exercise of its discretion, declines to extend the deadline for the filing of Plaintiff's memorandum in opposition to Defendant's Motion for Summary Judgment and Plaintiff's response to Defendant's CSOF. Plaintiff's Motion for Leave is denied.

         In light of Plaintiff's failure to file a concise statement of facts responding to Defendant's CSOF, this Court deems all statements of material fact in Defendant's CSOF admitted. See Local Rule LR56.1(g) (“For purposes of a motion for summary judgment, material facts set forth in the moving party's concise statement will be deemed admitted unless controverted by a separate concise statement of the opposing party.”).

         II. Title VII Discrimination Claim

         Plaintiff's Count I is titled “NATIONAL ORIGIN DISCRIMINATION.”[7] [Complaint at pg. 4.] Title VII prohibits employers from, inter alia, “discharg[ing] any individual, or otherwise . . . discriminat[ing] against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Count I alleges that Plaintiff was subjected to various forms of disparate treatment during her probationary period, including having her probation extended and ultimately being terminated, because she is Chinese. [Id. at ¶¶ 7-17.] This district court has stated:

A plaintiff may establish disparate treatment in violation of . . . Title VII through direct evidence or, alternatively, through the familiar McDonnell Douglas burden shifting framework. See Surrell v. California Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (discussing standard with respect to Title VII and [42 U.S.C.] § 1981 claims). . . .
The framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), begins by requiring a plaintiff to establish a prima facie case of discrimination. The degree of proof required to establish a prima facie case for summary judgment is minimal. See Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1094 (9th Cir. 2005). A prima facie case of disparate treatment requires a plaintiff to establish that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for the position in issue; (3) the plaintiff suffered an adverse employment decision; and (4) one or more employees outside the protected class with comparable qualifications and work records did not suffer similar adverse employment decisions. See, e.g., White v. Pac. Media Grp., Inc., 322 F.Supp.2d 1101, 1110 (D. Haw. 2004).
A plaintiff must demonstrate that his or her situation is similar in all material respects to that of employees who received more favorable treatment. See Moran v. Selig, 447 F.3d 748, 755 (9th Cir. 2006). However, “a plaintiff is not obligated to show disparate treatment of an identically situated employee.” McGuinness v. Lincoln Hall, 263 F.3d 49, 54 (2d Cir. 2001) (cited approvingly in Selig). Instead, “individuals are similarly situated when they have similar jobs and display similar conduct.” Hawn v. Exec. Jet Mgmt. Inc., 615 F.3d 1151, 1160 (9th Cir. 2010) (citing Vasquez v. Cnty. of Los Angeles, 349 F.3d 634, 641 (9th ...

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