Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Bowling v. Diamond Resorts International Inc.

United States District Court, D. Hawaii

July 2, 2018

MARY BOWLING, Plaintiff,


          Dcrrick K. Watson, Judge


         Bowling alleges that she was wrongfully terminated from her timeshare sales position due to an unspecified disability, in violation of federal and state law, while on leave under the Family Medical Leave Act (“FMLA”). Defendants move to dismiss her claims as deficiently pled. Because Bowling fails to provide sufficient facts to maintain claims for disability discrimination or retaliation under the Americans With Disabilities Act (“ADA”), Hawaii Revised Statutes (“HRS”) § 378-2, or for violation of the FMLA, and also fails to establish that two of the three Defendant entities were her employers, the Court GRANTS Defendants' Motion to Dismiss with leave to amend. Bowling's Title VII retaliation claim, however, is dismissed without leave to amend for failure to exhaust required administrative remedies.


         I. Factual Background

         Bowling worked as a Vacation Counselor selling Diamond Resorts International, Inc. (“DRI”) timeshare properties on Kauai from 2013 until her termination in February 2016. She sold “points” to members of the public and current DRI timeshare owners from a salesroom located at a DRI resort at Poipu. Her paychecks and W-2 list her employer as West Maui Resort Partners, L.P. (“WMRP”). First Amended Complaint (“FAC”) ¶¶ 9, 13. In recognition of her 2015 sales performance, Bowling was invited to attend a Chairman's Dinner in Florida because she was “the #2 ranked salesperson nationally for DRI.” FAC ¶¶ 15-16.

         Bowling states that she is “71 and disabled, ” FAC ¶ 17, and “[a]s a result of her disability, [she] could not make the long flight to Florida and asked for an accommodation that DRI allow her not to attend the Chairman's Dinner.” FAC ¶ 18. According to Bowling, DRI improperly denied her request for a reasonable accommodation and then terminated her because she could not travel to Florida for the awards dinner. FAC ¶ 10.

         Bowling alleges that her manager and regional manager “repeatedly told [her] how important it was to them and to DRI that she fly to Florida to attend the dinner.” Although she asked for an accommodation, “that because of her disability, she not be required to make the trip and attend the dinner, ” her managers nevertheless “refused the requested accommodation and demanded Plaintiff fly to Florida for the dinner. [Bowling] said she could not.” FAC ¶ 19.

         The FAC asserts that, due to her unspecified disability, on February 12, 2016, Bowling requested to take FMLA leave with her HR department, and “was told by HR that she could take FMLA leave. Because of her disability, on [February 12, 2016], [Bowling] went out on FMLA leave.” FAC ¶ 19. That same date, she checked with HR and was “told there w[ere] no pending complaints against her.” FAC ¶¶ 20, 26. Bowling was terminated on February 15, 2016 while on FMLA leave, FAC ¶¶ 22-23, because she allegedly refused to fly from Kauai to Florida to attend the awards dinner. FAC ¶¶ 24, 27.

         According to Bowling, “DRI, to cover up the real reason for her termination, came up with a pretextual reason for her termination-saying Plaintiff was terminated as a result of a complaint from one of DRI's timeshare customers involving a transaction in which Plaintiff and several other employees of DRI were involved.” FAC ¶ 28. Although many of DRI's other Kauai timeshare salespeople had complaints lodged against them by customers, Bowling alleges that none had been terminated because of such complaints, and therefore, her termination was pretextual. FAC ¶¶ 29-33.

         II. Procedural Background

         On August 3, 2016, Bowling filed her Charge of Discrimination with the Equal Employment Opportunity Commission (“EEOC”) and Hawaii Civil Rights Commission, alleging that she was terminated while on FMLA leave “due to a disability.” Charge, Bowling Decl. at 1, Dkt. No. 18-2. In the Charge, Bowling states: “I was discriminated against by my employer in violation of both the Americans with Disability Act, 42 U.S.C. § 12101 et seq. and Hawaii's Fair Employment Practices Act HRS § 378-2.” Id. at 5.

         On February 26, 2018, Bowling filed her FAC against DRI, WMRP, and Diamond Resorts West Maui Development, LLC (“Development LLC”). She asserts separate causes of action for violation of the ADA, FAC ¶¶ 53-57, and HRS § 378-2, FAC ¶¶ 62-64, alleging that Defendants discriminated against her due to her disability and failed to provide a reasonable accommodation. The FAC also includes a cause of action entitled “Retaliation in Violation of Title VII of the Civil Rights Act of 1964 as Amended and the ADA and the Family Medical Leave Act, ” which asserts that “DRI unlawfully retaliated against Plaintiff Bowling, by wrongfully terminating her employment, because she engaged in protected activity, and because she took FMLA leave.” FAC ¶ 60.

         Defendants seek dismissal of Bowling's ADA, HRS § 378-2, and FMLA claims for failure to state a claim, and dismissal of her Title VII retaliation claim for failure to exhaust her administrative remedies. They also contend that DRI and Development LLC must be dismissed from this action because neither was Bowling's employer, nor are they liable under a joint-employer theory of liability.[1]


         Federal Rule of Civil Procedure 12(b)(6) authorizes the Court to dismiss a complaint that fails “to state a claim upon which relief can be granted.” Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable legal theory or because it lacks sufficient factual allegations to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988). Pursuant to Ashcroft v. Iqbal, “[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” 555 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 554, 570 (2007)).

         A court may consider certain documents attached to a complaint, as well as documents incorporated by reference in the complaint, or matters of judicial notice, without converting a Rule 12(b)(6) motion to dismiss into a motion for summary judgment. United States v. Ritchie, 342 F.3d 903, 908-09 (9th Cir. 2003); Fed.R.Evid. 201(b); Lee v. City of Los Angeles, 250 F.3d 668, 688-89 (9th Cir. 2001). Because the EEOC Charge is referenced in the FAC and is a matter of public record, the Court may take judicial notice of that document. See, e.g., Onodera v. ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.