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Baab v. Harris Corp.

United States District Court, D. Hawaii

June 12, 2018

RANDY L. BAAB, Plaintiff,



         Baab asserts claims for disability and age discrimination, intentional infliction of emotional distress, and retaliation against Harris and Exelis, his former employers.[2] 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.


         Baab 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.

         While 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.

         Incidents Pre-Dating Baab's Medical Diagnosis

         Baab's 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”).

         “[A]t 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. 32-4.

         Baab's Alleged “Stress” Injury

         On 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.

         Baab 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”)).

         Dr. 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.

         Baab's Post-Leave Performance Assessments

         On 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, ”[3] 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.

         In May, 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.

         On 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.

         On 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. No.32-6.[4]

         On 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”).[5]

         On 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).[6] 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[]”).

         Baab 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.

         Baab's (Final) Medical Leave of Absence & Termination

         When 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).

         While 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.

         Baab's ...

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