United States District Court, D. Hawaii
ORDER GRANTING IN PART DEFENDANT UNITED AIRLINES,
INC.'S MOTION TO DISMISS
DERRICK K. WATSON, UNITED STATES DISTRICT JUDGE.
asserts claims for retaliation, race and disability
discrimination against United, his former employer. Before
the Court is United's Motion to Dismiss
(“MTD”; Dkt. No. 5) the Complaint Filed September
reasons set forth below, the Court GRANTS IN PART the MTD
with leave to amend only Count I.
who is African American, worked for United from October 22,
2007 until his termination on January 27, 2016. Pigozzi
Decl., Ex. A [Compl.] ¶¶ 10, 24, Dkt. No. 1-2.
employed by United, first as a “Reservation Sales
Agent, ” and then in United's Customer Care
Department (Compl. ¶¶ 10, 11), Assaye alleges that
he “developed a disability, ” for which he
“requested a reasonable accommodation” (Compl.
¶ 13). According to Assaye, United not only failed to
provide such an accommodation, but also failed to
“engage in an interactive process to
accommodate” Assaye in the workplace. Compl. ¶ 15.
Assaye further claims that United “discriminated
against [him] based upon his race” (Compl. ¶ 16)
and fired him in retaliation for his requests for
accommodation and complaints of discrimination (Compl. ¶
March 2016, Assaye filed a Charge of Discrimination
(“2016 Charge”) with the U.S. Equal Employment
Opportunity Commission (“EEOC”) and the
Hawai‘i Civil Rights Commission
(“HCRC”). See Pigozzi Decl., Ex. B
[2016 Charge] at 2-3, Dkt. No. 5-4. The EEOC investigated
Assaye's claims but ultimately closed its file on May 5,
2017, making clear that in doing so, it was “not
certify[ing] that [United] is in compliance with the
statutes.” See Compl., Ex. B [Dismissal &
Notice of Rights] at 1, Dkt No. 8 at 3. Assaye received a
right to sue letter from the EEOC on or about May 10, 2017
and a right to sue letter from the HCRC on August 17, 2017.
Compl. ¶ 8.
initiated this action on September 7, 2017 in the Circuit
Court of the First Circuit, State of Hawai‘i, Civil No.
17-1-1450-09 KKH, claiming statutory violations under
Hawai‘i Revised Statutes (“HRS”) §
378-2 in addition to public policy violations. Specifically,
the Complaint (Dkt. No. 1-2) identifies three causes of
action-discriminatory acts on the basis of disability and
race under HRS § 378-2(1)(a) (“Count I”;
Compl. ¶¶ 21-22); retaliatory termination under HRS
§ 378-2 (“Count II”; Compl. ¶¶
23-24), and for “termination . . . done in violation of
public policy” (“Count III”; Compl.
¶¶ 25-26). In its prayer for relief, the Complaint
requests “special damages for lost income and lost
earning capacity, ” “consequential damages,
” “injunctive relief for reinstatement at his job
with [United], ” and an award of reasonable attorneys
fees and costs. Compl. at 4-5, Dkt. No. 1-2.
removed the action to this Court on October 3, 2017 based on
diversity. Notice of Removal ¶¶ 4, 5, Dkt. No. 1
(citing 28 U.S.C. §§ 1332, 1441). Before the Court
is United's October 9, 2017 Motion to Dismiss the
Complaint Filed September 17, 2017. MTD, Dkt. No. 15.
Following a hearing on the MTD on March 2, 2018 (see
EP, Dkt. No. 34), the Court took matters under advisement.
The instant disposition follows.
to Dismiss for Lack of Subject Matter Jurisdiction
federal court must generally “satisfy itself of its
jurisdiction over the subject matter before it considers the
merits of a case, ” Ruhrgas AG v. Marathon Oil
Co., 526 U.S. 574, 583 (1999) (citing Steel Co. v.
Citizens for a Better Env't, 523 U.S. 83, 94-95
(1998)). If the court determines at any time that it lacks
subject matter jurisdiction, the court must dismiss the
action. Billingsley v. Comm'r of Internal Revenue
Serv., 868 F.2d 1081, 1085 (9th Cir. 1989) (“[T]he
court is under a continuing duty to dismiss an action
whenever it appears that the court lacks
jurisdiction.”) (quoting Augustine v. United
States, 704 F.2d 1074, 1077 (9th Cir. 1983)).
court's subject matter jurisdiction may be challenged
under Federal Rule of Civil Procedure (“FRCP”)
12(b)(1). The parties may also raise the issue of subject
matter jurisdiction at any time under FRCP 12(h)(3).
Augustine, 704 F.2d at 1075 n.3.
Rule 12(b)(1) motion to dismiss, “the district court is
ordinarily free to hear evidence regarding jurisdiction and
to rule on that issue prior to trial, resolving factual
disputes where necessary.” Id. at 1077 (citing
Thornhill Publ'g Co. v. Gen. Tel. Corp., 594
F.2d 730, 733 (9th Cir. 1979)); see also McCarthy v.
United States, 850 F.2d 558, 560 (9th Cir. 1988). Where
the court considers evidence outside the pleadings for this
purpose, “[n]o presumptive truthfulness attaches to
plaintiff's allegations, and the existence of disputed
material facts will not preclude the trial court from
evaluating for itself the merits of jurisdictional
claims.” Id. (citing Thornhill, 594
F.2d at 733). “Once the moving party [converts] the
motion to dismiss into a factual motion by presenting
affidavits or other evidence properly brought before the
court, the party opposing the motion must furnish affidavits
or other evidence necessary to satisfy its burden of
establishing subject matter jurisdiction.” Savage
v. Glendale Union High Sch., 343 F.3d 1036, 1040 n.2
(9th Cir. 2003). However, “where the jurisdictional
issue and substantive issues are so intertwined that the
question of jurisdiction is dependent on the resolution of
factual issues going to the merits, the jurisdictional
determination should await a determination of the relevant
facts on either a motion going to the merits or at
trial.” Augustine, 704 F.2d at 1077 (citing
Thornhill, 594 F.2d at 733-35; Wright & Miller,
Fed. Prac. & Proc. § 1350, at 558)) (explaining
further that trial courts making such jurisdictional rulings
“should employ the standard applicable to a motion for
summary judgment” (citing Thornhill,
to Dismiss for Failure to State a Claim
Court may dismiss a complaint under FRCP 12(b)(6) for
“failure to state a claim upon which relief can be
granted” when there is a “lack of a cognizable
legal theory or the absence of sufficient facts
alleged.” UMG Recordings, Inc. v. Shelter Capital
Partners, LLC, 718 F.3d 1006, 1014 (9th Cir. 2013)
(quoting Balistreri v. Pacifica Police Dep't,
901 F.2d 696, 699 (9th Cir. 1990)). In other words, a
plaintiff is required to allege “sufficient factual
matter, accepted as true, to ‘state a claim to relief
that is plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007));
see also Weber v. Dep't of Veterans Affairs, 521
F.3d 1061, 1065 (9th Cir. 2008). “A claim has facial
plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (citing Twombly, 550
U.S. at 556). Factual allegations that only permit the Court
to infer “the mere possibility of misconduct” do
not constitute a short and plain statement of the claim
showing that the pleader is entitled to relief as required by
FRCP 8(a)(2). Id. at 677, 679 (explaining that the
Federal Rules “do not require ‘detailed factual
allegations, ' but [they] demand more than an
considering a motion under Rule 12(b)(6) are generally
limited to reviewing the contents of the complaint. See
Sprewell v. Golden State Warriors, 266 F.3d 979, 988
(9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d
1476, 1479 (9th Cir. 1996). If matters outside the pleadings
are considered, the Rule 12(b)(6) motion is treated as one
for summary judgment. See Keams v. Tempe Tech. Inst.,
Inc., 110 F.3d 44, 46 (9th Cir. 1997); Anderson v.
Angelone, 86 F.3d 932, 934 (9th Cir. 1996). Courts may,
however, “consider certain materials-documents attached
to the complaint, documents incorporated by reference in the
complaint, or matters of judicial notice-without converting
the motion to dismiss into a motion for summary
judgment.” United States v. Ritchie, 342 F.3d
903, 908 (9th Cir. 2003). Documents whose contents are
alleged in a complaint and whose authenticity is not
questioned by any party may also be considered in ruling on a
Rule 12(b)(6) motion. See Marder v. Lopez, 450 F.3d
445, 448 (9th Cir. 2006); Knievel v. ESPN, 393 F.3d
1068, 1076 (9th Cir. 2005); Heartland Payment Sys., Inc.
v. Cent. Pac. Bank, 2012 WL 488107, *2 (D. Haw. Feb. 13,
purposes of ruling on a Rule 12(b)(6) motion, the court
“accept[s] factual allegations in the complaint as true
and construe[s] the pleadings in the light most favorable to
the nonmoving party.” Manzarek v. St. Paul Fire
& Marine Ins. Co., 519 F.3d 1025, 1031 (9th Cir.
2008). However, conclusory allegations of law, unwarranted
deductions of fact, and unreasonable inferences are
insufficient to defeat a motion to dismiss. See
Iqbal, 556 U.S. at 678 (explaining that the
construed-as-true/light-most-favorable tenet “is
inapplicable to legal conclusions”); Sprewell,
266 F.3d at 988; see also Twombly, 550 U.S. at 555
(“While a complaint attacked by a Rule 12(b)(6) motion
to dismiss does not need detailed factual allegations . . .,
a plaintiff's obligation to provide the
‘grounds' of his [or her] ‘entitlement to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do.” (internal citations omitted)). Moreover,
the court need not accept as true allegations that contradict
matters properly subject to judicial notice, nor must it
assume that allegations contradicted by the exhibits attached
to the complaint are true. Sprewell, 266 F.3d at
988. As the Ninth Circuit has explained, “the factual
allegations that are taken as true must plausibly suggest an
entitlement to relief, such that it is not unfair to require
the opposing party to be subjected to the expense of
discovery and continued litigation.” Starr v.
Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Rule 15(a)(2) of the FRCP, leave to amend a party's
pleading “should [be] freely give[n] . . . when justice
so requires.” See Lopez v. Smith, 203 F.3d
1122, 1127 (9th Cir. 2000) (en banc) (explaining that
“the underlying purpose of [FRCP] Rule 15 . . . [is] to
facilitate decision on the merits, rather than on the
pleadings or technicalities”) (quoting Noll v.
Carlson, 809 F.2d 1446, 1448 (9th Cir. 1987)). Further,
the Ninth Circuit has explained that “a district court
should grant leave to amend even if no request to amend the
pleading was made, unless it determines that the pleading
could not possibly be cured by the allegation of other
facts.” Cook, Perkiss & Liehe, Inc. v. N. Cal.
Collection Serv. Inc., 911 F.2d 242, 247 (9th Cir. 1990)
(citing Bonanno v. Thomas, 309 F.2d 320, 322 (9th
Cir. 1962); Erlich v. Glasner, 352 F.2d 119, 122
(9th Cir. 1965)). Nonetheless, leave to amend may be denied
for “undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure deficiencies by
amendments previously allowed, undue prejudice to the
opposing party by virtue of allowance of the amendment,
futility of amendment, etc.” Mayes v.
Leipziger, 729 F.2d 605, 608 (9th Cir. 1984) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
these standards in mind, the Court turns to United's MTD.
Discrimination Under HRS § 378-2(a)(1)(A) (Count
HRS § 378-2, it is an “unlawful discriminatory
practice . . . [f]or any employer . . . to discharge from
employment, or otherwise to discriminate against any
individual . . . in the terms, conditions, or privileges of
employment” on the basis of “race . ., color . .,
[or] disability.” HRS § 378-2(a)(1)(A). Assaye
alleges that United engaged in two types of discrimination
prohibited by this statute- race-based discrimination, and
disability/reasonable accommodations discrimination-and each
is discussed below.
of race discrimination under HRS Chapter 378 is governed by
the same test used by the federal courts in Title VII cases.
Jackson v. Foodland Super Mkt., Ltd., 958 F.Supp.2d
1133, 1139 (D. Haw. 2013) (citing Schefke v. Reliable
Collection Agency, Ltd., 32 P.3d 52, 69-70 (Haw. 2001));
cf. Kosegarten v. Dep't of the Prosecuting
Attorney, 892 F.Supp.2d 1245, 1261 (D. Haw. 2012)
(holding that, in interpreting HRS § 378-2,
“federal case law interpreting Title VII is persuasive,
but not controlling”) (citing Arquero v. Hilton
Hawaiian Vill. LLC, 91 P.3d 505, 511-12 (Haw. 2004)). A
plaintiff may establish a prima facie case of discrimination,
either “by producing direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than
not motivated the defendant, ” Jackson, 958
F.Supp.2d at 1139 (citing McGinest v. GTE Serv.
Corp, 360 F.3d 1103, 1122 (9th Cir. 2004)), or by
establishing the four elements of the
McDonnell-Douglas test-“(1) he belongs to a
protected class; (2) he was qualified for the position; (3)
he was subjected to an adverse employment action; and (4)
similarly situated [employees] were treated more favorably,
” Villiarimo v. Aloha Island Air, Inc., 281
F.3d 1054, 1062 (9th Cir. 2002) (quoting McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973)). See
also Hac v. Univ. of Haw., 73 P.3d 46, 55 (Haw. 2003)
(“This court has adopted the McDonnell Douglas analysis
in HRS § 378-2 discrimination cases.”) (citing,
inter alia, Schefke, 32 P.3d at 85). Here,
Assaye does not allege that he can “produce direct or
circumstantial evidence demonstrating that a discriminatory
reason more likely than not motivated” United.
Jackson, 958 F.Supp.2d at 1139. As a result, the
sufficiency of this claim is analyzed under the four-prong,