United States District Court, D. Hawaii
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
E. KOBAYASHI UNITED STATES DISTRICT JUDGE.
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
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.
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.
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. Ms. Windrath states that her own
“race is Chinese, Japanese, Filipino, and
Spanish.” [Def.'s CSOF, Decl. of Jacqueline
Windrath (“Windrath Decl.”) at ¶ 3.]
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.]
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. 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).]
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.]
on Ms. Windrath's recommendation, Defendant extended
Plaintiff's probationary period for an additional three
months. 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.
to the completion of Plaintiff's additional three-month
probationary period, Ms. Windrath submitted a PPER
recommending Plaintiff's termination (“Nine-Month
PPER”). [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.]
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. [Def.'s CSOF
at ¶¶ 18-19.] Ms. Windrath has denied having
“discriminatory animus against people of Chinese
descent/origin.” [Id. at ¶ 20.]
Windrath also denies fabricating any claims against
Plaintiff. [Id. at ¶ 22.]
seeks summary judgment as to all of the claims in the
Motion for Leave
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.
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
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.]
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
(B) on motion made after the time has expired if the party
failed to act because of excusable neglect.
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,
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.
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,  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.
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.
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
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.”).
Title VII Discrimination Claim
Count I is titled “NATIONAL ORIGIN
DISCRIMINATION.” [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 ...