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Assaye v. United Airlines, Inc.

United States District Court, D. Hawaii

April 26, 2018

ABI ASSAYE, Plaintiff,



         Assaye 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 7, 2017.

         For the reasons set forth below, the Court GRANTS IN PART the MTD with leave to amend only Count I.


         Assaye, 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.

         While 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. ¶ 15).

         In 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”).[1] 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.

         Assaye 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.

         United 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.


         Motion to Dismiss for Lack of Subject Matter Jurisdiction

         A 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)).

         A 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.

         On a 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, supra)).

         Motion to Dismiss for Failure to State a Claim

         The 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 unadorned, the-defendant-unlawfully-harmed-me accusation”).

         Courts 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, 2012).

         For 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).

         Leave to Amend

         Under 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)).

         With these standards in mind, the Court turns to United's MTD.


         I. Discrimination Under HRS § 378-2(a)(1)(A) (Count I)

         Under 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.

         A. Race Discrimination

         A claim 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, McDonnell-Douglas test.[2]

         1. Pr ...

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