United States District Court, D. Hawaii
RANDY L. BAAB, Plaintiff,
HARRIS CORPORATION and EXCELIS, INC.,  Defendants.
ORDER GRANTING MOTION FOR SUMMARY JUDGMENT
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE.
asserts claims for disability and age discrimination,
intentional infliction of emotional distress, and retaliation
against Harris and Exelis, his former
employers. Following the filing of Defendants'
Motion for Summary Judgment (“MSJ”; Dkt. No. 31),
Baab conceded all but his disability discrimination claims.
Baab's disability claims also fail, however, because Baab
was unable to perform the essential functions of his Fire
Fighter position and is unable to state a prima facie claim.
Accordingly, as explained below, Defendants' summary
judgment motion is GRANTED.
worked for Harris/Exelis (collectively, “H/E”)
from September 1993 until his termination on December 11,
2015. Compl. ¶¶ 4, 5, Dkt. No. 1. Hired as a Fire
Fighter at the Pacific Missile Range Facility at Barking
Sands in Kekaha, Hawaii (“PMRF”), Baab was
promoted to “Lieutenant/Crew Chief” on February
9, 2011 (Broyles Decl. ¶ 2, Dkt No. 32-3) and held that
position until he was demoted in August 2015, a few months
prior to his termination (Baab Decl., Ex. 6 [Kuapahi Mem.
(8/10/15)], Dkt. No. 41-7). See Compl. ¶ 16,
Dkt. No. 1.
employed as a Crew Chief, Baab alleges that he developed a
disability, for which he requested a reasonable
accommodation. Specifically, Dr. Dennis Scheppers, M.D.,
diagnosed Baab-then 59-years old-with “[a]nxiety as
acute reaction to exceptional stress” on February 25,
2015. Baab Decl., Ex. 7 [Worker's Comp. Claim (2/27/15)]
at 3, Dkt. No. 41-8 (identifying January 6, 2015, as the date
of Baab's first treatment for this
“disability”). Baab alleges that his 2015
termination from employment at PMRF “was due to age and
disability discrimination and in retaliation for complaining
about discrimination.” Compl. ¶ 6, Dkt. No. 1.
Pre-Dating Baab's Medical Diagnosis
documented difficulties at the PMRF date back to a
“County Burn Trailer exercise” on April 24, 2014.
Following that exercise, Baab's immediate supervisor,
Assistant Fire Chief Oric Kuapahi, “yelled at Lt. Baab
for not maintaining proper communications” (Peralta
Decl. ¶ 15, Dkt. No. 32-7) and otherwise embarrassed
Baab “in front of County Fire and [Baab's]
crew” (Baab Letter to DLIR, Dkt. No. 32-11 at 145).
See Cardejon Decl. ¶¶ 9, 10, Dkt. No. 32-9
(describing Baab's alleged shortcomings during the
exercises); Martins Decl. ¶¶ 19, 20, Dkt. No. 32-10
(same). This confrontation, which Baab later identified as
the first incident of “bullying” by Kuapahi,
caused Baab to feel “really stressed, ” among
other things. Baab Letter to DLIR, Dkt. No. 32-11 at 145;
see also Odo Decl. 2, Ex. A [Tr. of Baab Depo.
(12/8/17) (“Baab Depo.”)], Ex. 21 [Annotated
Diagram], Dkt. No. 32-11 at 152 (Baab's hand-written
notes regarding the April 24, 2014 exercises). Baab claims
that he reported Kuapahi's “bullying”
behavior to Fire Chief Paul Garrigan upon returning from an
extended vacation in September 2014. See Baab Letter
to DLIR, Dkt. No. 32-11 at 146 (describing his decision to
take vacation in July 2014 because he “did not want to
participate in” another scheduled “burn trailer
session” because of the “stress . . . from the
April burn trailer training”).
least every other week” from October to December 2014,
Baab claims that Kuapahi continued to “bully, ”
“harass” and “criticize” him
“in front of the entire crew, ” which was
“very stressful, ” which caused Baab to make
“more mistakes, ” and which made it
“difficult for [Baab] to work with [Kuapahi]”
moving forward. Baab Letter to DLIR, Dkt. No. 32-11 at 146.
Following a communications error Baab admittedly made during
a December 19, 2014 “Hazmat Call for the Engine Co.,
” another non-private confrontation between Kuapahi and
Baab allegedly occurred. On December 21, 2014, Kuapahi
“scolded [Baab] in front of the shift” and
threatened to demote him, which “embarrassed”
Baab and “ruined [his] confidence and probably ruined
the confidence of [Baab's] men in [him].” Baab
Letter to DLIR, Dkt. No. 32-11 at 146-47. Baab again
complained to Chief Garrigan. Baab Depo., Ex. 37
[Garrigan-Baab E-mail (12/24/14)], Dkt. No. 32-11 at 169-70.
In response, Chief Garrigan reminded Baab that he
“occup[ied] a key leadership role in this dept and
[would] therefore [be] held to the highest standard.”
Baab Depo., Ex. 37 [Baab-Garrigan Email (12/31/14)], Dkt. No.
32-11 at 169. At the same time, Garrigan agreed that
“the forum in which [Kuapahi addressed Baab's
‘fireground shortfalls' was] in question.”
Id. Accordingly, Garrigan met with Kuapahi on
December 31, 2014 to “counsel Mr. Kuapahi to praise
people in public and criticize in private, and [to inform
him] that further infractions would lead to punitive
action” against him. Garrigan Decl. ¶ 3, Dkt. No.
Alleged “Stress” Injury
January 1, 2015, Baab responded to a “Power Failure
Alarm in Building 384” and “declared
command” upon arrival. Baab Depo, Ex. 21 [Annotated
Diagram], Dkt. No. 32-11 at 151-52. However, with Kuapahi
“towering over [Baab]'s right shoulder, ”
Baab quickly became “frustrated” and had trouble
using a key and with remembering the door combination.
Annotated Diagram, Dkt. No. 32-11 at 151-52 (stating that he
had a “hard time” with this “simple
task” “because of pressure to perform”).
This led to another confrontation with Kuapahi-this time, in
Kuapahi's office-which left Baab “more
stress[ed]” than ever. Baab Letter to DLIR, Dkt. No.
32-11 at 147 (stating that he “was torn up inside
during [his] next shift Sunday, nerves tearing at [his]
stomach and his hands were shaking”). Because Baab
“could not remember how to perform simple tasks that
were simple for [him] before, ” given such pressure,
and because he “didn't want to put [him]self in
danger or [his] crew, ” he sought advice from Dr.
Scheppers, who “proceeded to put [Baab] on Stress Leave
to the end of the month.” Baab Letter to DLIR, Dkt. No.
32-11 at 148.
thus commenced a medical leave of absence “claiming a
stress-related disability” on January 6, 2015. Broyles
Decl. ¶ 3, Dkt. No. 32-3. Dr. Scheppers recommended that
Baab remain out “on Disability” until January 27,
2015. See Baab Decl., Ex. 8 [Medical Excuse Form
(1/6/15)], Dkt. No. 41-9 (certifying that Baab was under Dr.
Scheppers' care for “Anxiety as acute reaction to
exceptional stress; Stressful job”-arising out of a
December 30, 2014 work injury); see also Baab Depo.,
Ex. 34 [Baab-Chief Email (1/9/15)], Dkt. No. 32-11 at 168
(describing the doctor's appointment, diagnosis, and
order to remain out of work). Complaining that he had
“started to see a Doctor and Physic [sic] Therapist to
treat the stress” caused by Kuapahi's alleged
“Harassment/Bullying” (Baab Letter to DLIR, Dkt.
No. 32-11 at 145-48 (blaming Kuapahi for “the decline
and mistakes in [Baab's job] performance”)), Baab
filed a Charge of Discrimination with the EEOC and the Hawaii
Civil Rights Commission (“HCRC”) on January 29,
2015 (cf. Baab Decl., Ex. 11 [Withdrawal of 1/29/15
EEOC Charge (4/22/15)], Dkt. No. 41-12 (withdrawing EEOC
Charge No. 846-2015-12112 “with prejudice”)).
Scheppers subsequently executed another document prescribing
another period of medical absence for Baab from February 27,
2015 through April 1, 2015. Baab Decl., Ex. 9 [Medical Excuse
Form (3/24/15)], Dkt. No. 41-10 (ordering Baab to return to
work on April 2, 2015); cf. Broyles Decl. ¶ 3,
Dkt. No. 32-3 (“Lt. Baab [was] on leave of absence from
January 6, 2015, through April 1, 2015, claiming a
stress-related disability.”). While out of work, Baab
[also] initiated his first Worker's Compensation claim
for “Anxiety as acute reaction to exception[al]
stress[;] stressful job, ” in which he complained that
his “[i]nsurance carrier ha[d] not paid
benefits.” Worker's Comp. Claim (2/27/15), Dkt. No.
41-8 (noting that the “[d]ate of injury should start
from 12/21/14” and representing, per Dr. Scheppers,
that Baab “will be able to perform usual work” by
March 27, 2015). Baab returned to work on April 2, 2015.
Broyles Decl. ¶ 5, Dkt No. 32-3.
Post-Leave Performance Assessments
April 22, 2015, Baab withdrew his January 29, 2015 Charge of
Discrimination and his February 27, 2015 Worker's
Compensation Claim pursuant to an agreement with H/E. Baab
Decl., Ex. 10 [Stip. for Withdrawal of Worker's Comp.
Claim (2/27/15)], Dkt. No. 41-11; Withdrawal of 1/29/15 EEOC
Charge (4/22/15), Dkt. No. 41-12. With respect to the
Worker's Compensation Claim, the settlement documents
note that H/E paid Baab a “monetary
consideration” of $1, 695.83 “to resolve DCD No.
41500085” and further agreed (1) to “allow
[Baab] to accrue his vacation and sick leave during the
period he remained off work on Temporary Disability
Insurance, January 6, 2015 - April 1, 2015, ” (2) to
“implement a Work Transitional Plan as well as
Performance Improvement Plan” for Baab “no later
than June 30, 2015, ” and (3) to “provide AC
Kuapahi with further management and leadership training . . .
in June 2015.” Stip. for Withdrawal of Worker's
Comp. Claim (2/27/15), Dkt. No. 41-11. In exchange, Baab
withdrew his claims and stipulated that the agreement would
“forever preclude” a complaint by Baab based on
continual harassment/ hostile work environment, including
allegations regarding “[o]verall mental stress leading
to decline and mistakes in performance, failure to remember
how to perform simple tasks, bewilderment, physical illness,
insomnia, shaking, loss of appetite, and frequent sore
stomach, ” and those regarding incidents on April 24,
2014, from September-December 2014, and on January 1 and 2,
2015. Stip. for Withdrawal of Worker's Comp. Claim
(2/27/15), Dkt. No. 41-11.
June, and July of 2015, Baab “underwent six sections of
testing” under the TPAP; “[h]e successfully
completed three sections, but failed three other
sections.” Kuapahi Decl. ¶ 2, Dkt. No. 32-6; Baab
Decl., Ex. 12 at 161 [Return-to-Work TPAP (7/7/15)], Dkt. No.
41-13 at 3 (describing Baab's performance). On July 10,
2015, H/E issued Baab a “Final Written Notice/ Warning
or Suspension” noting that he failed three of the six
“basic task objectives” representing the
“fundamental skill requirements” of the
Lieutenant position. Baab Depo., Ex. 27 [Emp. Counseling
Record], Dkt. No. 32-11 at 163-64.
August 6, 2015, “Baab's union requested that [H/E]
re-evaluate [him] under the TPAP.” Kuapahi Decl. ¶
3, Dkt. No. 32-6. The parties agreed that a retest would take
place on September 17, 2015 and that it “would be the
second and final assessment, [so] they would be bound by
[its] results[.]” Taylor Decl. ¶ 3, Dkt. No. 32-2;
Broyles Decl., Ex. C [Broyles-Parker Mem. (9/24/15)], Dkt.
No. 32-13 at 1.
August 10, 2015, Baab completed an unrelated “Fire
Inspection Record that contained seventeen (17) errors,
” which was apparently Baab's third such record to
“contain numerous errors.” Kuapahi Decl. ¶
4, Dkt. No. 32-6. As a result of Baab's deficient
performance on August 10, 2015, Baab was demoted from his
position as “Lieutenant/Crew Chief” to Fire
Fighter. Kuapahi Decl. ¶ 5, Dkt. No. 32-6; Taylor Decl.,
Ex. B [Taylor-Broyles E-mail (9/3/15)], Dkt. No. 32-12 at 3
(stating that Kuapahi “unofficially demoted [Baab] to
FF status (apparently [the union attorney] is ok with this),
and we are not paying two personnel for LT pay every other
shift”). Kuapahi claims that he “did not base
[this] decision” on “Baab's age, alleged
stress, and/or prior complaints about discrimination.”
Kuapahi Decl. ¶ 5, Dkt. No. 32-6. Rather, Kuapahi
“was concerned about Lt. Baab's ability to lead
others” after “receiv[ing] numerous complaints
from Fire Fighters working under or alongside Lt. Baab,
who” both “reported that they had no confidence
in Lt. Baab as their leader, ” and who “expressed
concerns about Lt. Baab's judgment and felt that they
were in danger.” Kuapahi Decl. ¶ 5, Dkt.
August 13, 2015, during a Live Fire Training exercise, Baab
once again had difficulties, causing an “emergency all
stop” out of “concern for Lt. Baab's
wellbeing.” See Suppl. Peralta Decl. ¶ 2,
Dkt. No. 32-8 (stating that he stopped the exercise after
“notic[ing] that . . . Baab laid on the floor and
looked exhausted”); Taylor-Broyles Email (9/3/15), Dkt.
No. 32-12 at 3 (“[H]e panicked in the capacity as a FF,
not as a leader.”). In his own assessment of what
happened during the exercise, Baab wrote that after he saw a
fellow Fire Fighter, Jason Peralta, open a window to
ventilate the room, he “rested against the wall,
” but “the next moment” noticed that he was
“lying face down with the baby[doll to be rescued
during the exercise] underneath [him].” Baab Decl., Ex.
15 [Worker's Comp. Claim (12/28/15)] at 3, Dkt. No. 41-16
(alleging that he was not notified that he had lost
consciousness inside the burn trailer until the next day).
Baab also wrote that after he “got up to [his] feet and
walked out” of the exercise trailer, he noticed that
his “low air bell was sounding off.” Worker's
Comp. Claim (12/28/15) at 3, Dkt. No. 41-16 (noting that due
to his “condition, ” Baab “provided
ventilation instead of making entry again” during the
third and final drill). As a result of Baab's performance
during the August 13, 2015 live fire drill, Scott Taylor, the
Security and Emergency Services Manager overseeing fire and
emergency services operations at the PMRF (Taylor Decl.
¶ 1, Dkt. No. 32-2), requested that priority be given to
Baab's termination. Taylor-Broyles E-mail (9/3/15), Dkt.
No. 32-12 at 3-4 (opining that Baab “is a serious
liability to our Fire Dept-someone is going to get hurt
sooner or later due to this gentleman's incompetence and
lack of mental stability”).
September 17, 2015, Baab “had an opportunity to re-do
the three failing areas of his [TPAP]” under
Taylor's supervision. Taylor Decl. ¶ 3, Dkt. No.
32-2 (noting that the re-test was also observed by the
union's representative, Lieutenant Aaron Amorin, and that
Assistant Chief Janis Kiamata and Fire Inspector Patrick
Kaneshiro provided technical assistance); see
Garrigan Decl., Ex. D [Garrigan Summary-of-Concerns Mem.
(10/15/15)] ¶ 1(c), Dkt. No. 32-14 (explaining that, in
response to Baab's complaints following his first failed
TPAP, “[a] second opportunity was provided him to
successfully complete these tasks using a different
evaluator” and outside of Kuapahi's
presence). By all accounts, “Baab did not
successfully complete the previously failed sections”
during his TPAP retest. Taylor Decl. ¶ 4, Dkt. No. 32-2;
e.g., Baab Decl., Ex. 12 at 168 [Return-to-Work TPAP
(9/17/15)], Dkt. No. 41-13 at 10; Baab Decl., Ex. 12 at
165-66 [Mem. for Record (9/17/15)], Dkt. No. 41-13 at 7-8. As
a result, “[H/E] and the Union agreed that . . . [Baab]
should not perform the duties of Lieutenant/Crew Chief due to
the extreme liability at hand for himself, his coworkers, and
the company.” Taylor Decl. ¶ 4, Dkt. No. 32-2.
See also Broyles-Parker Mem. (9/24/15), Dkt. No.
32-13 (recommending that H/E terminate Baab “based on
his failure to adhere to performance requirements as well as
making poor judgment and decisions that place personnel and
company at risk”).
experienced still further difficulties while acting in his
capacity as a Fire Fighter during a November 16, 2015
“Fire Drill” training exercise involving a
simulated structure fire. Following this exercise, Chief
Garrigan concluded that Baab was “a threat to safety
and urged [his] immediate removal . . . from all Fire Fighter
duties.” Garrigan Decl. ¶ 6, Dkt. No. 32-4.
Garrigan, who had observed the exercise first-hand, recalled
that “Baab appeared extremely anxious and confused,
” that Baab's “hands were shaking, and he was
breathing rapidly-almost to the point of hyperventilation,
” and that he “prematurely depleted his oxygen
tank due to a ‘stress attack.'” Garrigan
Decl. ¶ 6, Dkt. No. 32-4 (“Lt. Baab explained that
he was stressed because he wanted to perform well.”);
see Worker's Comp. Claim (12/28/15) at 4, Dkt.
No. 41-16 (recalling that, although he “normally . . .
would use 20 lbs. of air and not be out of breath, [t]his
time [Baab] had 20 lbs left in the bottle and was fighting to
catch [his] breath”). Furthermore, Chief Garrigan
recalled that “during the training, Lt. Baab's
nomex hood slipped down, covering his face mask, ” and
when Baab “did not adjust his hood, but continued to
proceed further into the facility, ” he became
“separate[d] from his partner.” Garrigan Decl.
¶ 6, Dkt. No. 32-4 (stating that “[d]ue to Lt.
Baab's appearance, [Garrigan] stopped the exercise and
directed everyone to leave the facility”). In fact,
Baab himself recalled that he had entered the building,
“pausing momentarily” at a time when he would
normally have acted “without thinking, ” bec[ame]
separated from his partner[, ] and “dropped the
nozzle” to the fire hose when he noticed his partner
was not there. Worker's Comp. Claim (12/28/15) at 4, Dkt.
No. 41-16. After it was relayed to him the following day that
his hands had been shaking when he removed the mask, Baab
“got an appointment to see Dr. Scheppers.”
Worker's Comp. Claim (12/28/15) at 4, Dkt. No. 41-16.
(Final) Medical Leave of Absence & Termination
Baab visited Dr. Scheppers on November 17, 2015, his
“Blood Press[ure] check was 30 points higher than
normal[.]” Worker's Comp. Claim (12/28/15) at 4,
Dkt. No. 41-16 (claiming that his blood pressure “never
ha[d] been that high”). As a result of this diagnosis,
Dr. Scheppers completed a third Medical Excuse Form for Baab,
which recommended that Baab remain out of work from November
19 through December 15, 2015, at which time Baab would be
medically re-evaluated. Baab Decl., Ex. 13 [Medical Excuse
Form (11/19/15)], Dkt. No. 41-14 (reasserting Baab's
diagnosis of “Anxiety problem, Stress at Work, ”
and identifying the date of injury as August 13, 2015).
out of work on this “Medical Leave of Absence, ”
H/E terminated Baab, effective December 11, 2015.
See Baab Depo, Ex. 10 [Termination Letter
(12/15/15)], Dkt. No. 32-11 at 137; cf. Broyles
Decl. ¶ 7, Dkt. No. 32-3 (stating that Baab “took
a leave of absence for stress” on November 17, 2015,
and “did not return to work”). The termination
was “for cause” because Baab had “failed to
adhere to performance requirements as well as exercising poor
judgment and making poor decisions that placed personnel and
the Company at risk.” Termination Letter (12/15/15),
Dkt. No. 32-11 at 137 (explaining that “[a]fter several
opportunities (assessments), [Baab] failed to demonstrate
that [he] w[as] able to perform the requirements of [his]
position, ” and noting that “[t]he second
assessment was conducted at the union's request with the
express understanding that if [Baab] did not successfully
pass it, [his] employment would be terminated.”).
Baab's termination letter also stated that Baab would
“be paid for all hours worked through [his] last
day” and for any “unused, accrued vacation and
paid absence allowance, ” but his “Employee
Benefits (Insurance Plans) w[ould] terminate on December 31,
2015” unless he exercised his option to “continue
coverage under COBRA.” Termination Letter (12/15/15),
Dkt. No. 32-11 at 137.