United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT
AB CAR RENTAL SERVICES, INC'S MOTION FOR SUMMARY
JUDGMENT, OR IN THE ALTERNATIVE, PARTIAL SUMMARY
A. Otake United States District Judge
Nathan Wunderlin (“Plaintiff”) sued his former
employer, Defendant AB Car Rental Services, Inc.
(“Defendant”),  pursuant to Hawai‘i law,
alleging that he was unlawfully terminated based on his
ancestry, race, and color; that he suffered a hostile work
environment and retaliation; and that he should be awarded
punitive damages. Defendant seeks summary judgment, or, in
the alternative, partial summary judgment. For the reasons
set forth below, the Motion is GRANTED IN PART and DENIED IN
otherwise indicated, the following facts are not in dispute.
Plaintiff, a Caucasian male, worked at Defendant's
Kailua-Kona Airport location from April 27, 2008 until his
termination on July 22, 2015. Plaintiff's Concise
Statement of Facts (“Pl.'s CSF”), Decl. of
Nathan Wunderlin (“Wunderlin Decl.”) at
¶¶ 3, 4, 191. Plaintiff worked as a rental sales
agent (RSA), and his hourly wage was supplemented by
incentive pay for “upsells”-the sale of
additional insurance coverage and rental products. Decl. of
Christopher Rolletta (“Rolletta Decl.”) at
¶¶ 7-8. He earned a high income consistent with
that of a good salesperson. Pl.'s CSF, Ex. F;
Defendant's Concise Statement of Facts (“Def.'s
CSF”) at ¶ 4.
required all employees, including Plaintiff, to follow its
policies and rules, which included the Code of Conduct and
Business Principles, Work Rules, and Customer Service and
Sales Rules of the Road. Def.'s CSF at ¶ 4. These
policies and rules prohibited employees from selling a more
expensive rental or charging for insurance without the
customers' approval, making adjustments at the end of a
sale, modifying rental agreements with the intent of
defrauding the customer, or behaving dishonestly toward or
manipulating customers. Id. at ¶¶ 5, 7.
first supervisor was a Caucasian male, who was replaced
sometime at the end of 2013 or the beginning of 2014 by Allen
Inda, a Filipino male. Id., Rolletta Decl. at ¶
6; Pl.'s CSF, Wunderlin Decl. at ¶¶ 5, 17.
Cheryl Beimes, whose ethnicity is in dispute, also supervised
Plaintiff. Def.'s CSF, Rolletta Decl. at ¶ 6;
Pl.'s CSF, Wunderlin Decl. at ¶ 22. Mark Winkleman,
a Caucasian male, was Defendant's operations manager.
Pl.'s CSF, Declaration of Mark Winkleman
(“Winkleman Decl.”) at ¶¶ 3-4.
According to Winkleman, Inda instructed him to monitor and
keep separate files of customer complaints against Plaintiff
and Kevin Ditty, another Caucasian male. Pl.'s CSF,
Winkleman Decl. at ¶ 7. Inda did not tell Winkleman to
monitor or keep files of anyone else. Id. at ¶
2008 and 2015, Plaintiff received approximately a dozen
warnings for violations of work rules. Def.'s CSF at
¶ 8. For instance, on May 28, 2014, Defendant gave
Plaintiff his first warning for defrauding customers.
Def.'s CSF, Ex. 15. On November 9, 2014, Defendant issued
Plaintiff a written warning for charging customers for
upgrades and coverages without their consent. Id.,
Ex. 16. Plaintiff admits receiving the write-ups but denies
the accuracy of the allegations. Pl.'s CSF at ¶ 22.
January 9, 2015, a state agency performed an audit at the
Kailua-Kona Airport location. Def.'s CSF, Ex. 8.
According to Plaintiff's written warning, the agency sent
a letter to Defendant, dated January 20, 2015, reporting that
an investigator witnessed Plaintiff lying to a customer and
adding insurance to a purchase after the customer declined
such insurance. Def.'s CSF, Ex. 8. The parties dispute
the accuracy of the state agency's letter. Following the
receipt of this state agency's letter, Defendant received
two more customer complaints alleging that Plaintiff added
unauthorized charges to purchases. Id. On April 2,
2015, Defendant suspended Plaintiff and issued him a final
written warning for violating company policy. Id.
Plaintiff had received a total of fifteen customer complaints
prior to his suspension. Id., Exs. 15, 16.
email dated April 8, 2015, Plaintiff informed Inda and a
member of the Human Resources Division for the first time
that he believed his reprimands and suspension were the
result of race discrimination. He made no mention of a
hostile work environment. Id., Ex. 9.
letter dated May 4, 2015, addressed to Human Resources
Director Christopher Rolletta, Plaintiff first reported
instances of racially charged comments. Id. at
¶ 16. Plaintiff described racial tension in the
workplace, and multiple instances of the derogatory use of
the word “haole.” Id. & Ex. 11.
Thereafter, Defendant sent Martin Mylott, the Hawai‘i
Regional Manager, and Gail Sugimoto, the local Human
Resources manager, to the Kailua-Kona location to
investigate. In collaboration with Rolletta, they determined
that there had been no race-based misconduct by any of
Plaintiff's coworkers. Def.'s CSF at ¶¶
hearing on the Motion, Plaintiff's counsel conceded that
the record is unclear as to how many additional racially
derogatory comments were made by non-white employees after
the investigation. However, he identified an incident on
April 9, 2015, during which a coworker told Plaintiff that a
cultural rites dispute was occurring “because of all
you fucking haoles who came over and messed up our
land.” Pl.'s CSF, Wunderlin Decl. ¶ 71. Beimes
was present when the statement was made, but at the hearing,
the parties disputed whether she had heard it. Although this
incident allegedly happened after Plaintiff sent the email
alleging race discrimination on April 8, 2018, it occurred
before Defendant's investigation into Plaintiff's
his return from suspension, Plaintiff received seven more
customer complaints. He again does not challenge the fact of
the complaints, but rather the truth of their substance.
Def.'s CSF at ¶ 36; Pl.'s CSF at ¶ 36.
Sugimoto advised Plaintiff of the complaints on July 2, 2015,
and Mylott terminated him on July 22, 2015. Def.'s CSF at
¶¶ 37-38. The decision to terminate Plaintiff was
made primarily by Mylott, with assistance from Rolletta.
Id., Rolletta Decl. at ¶ 28. Defendant also
terminated Ditty for misleading customers and charging for
insurance after customers declined. Def.'s CSF at ¶
also contends that Defendant did not terminate Isaac Flores,
a non-Caucasian RSA who received similar customer complaints.
Pl.'s CSF at ¶ 51. It is undisputed that Defendant
suspended Flores and that he resigned thereafter. Pl.'s
CSF at ¶ 51; Def.'s CSF at ¶ 51.
filed his Complaint in the Circuit Court of the Third
Circuit, State of Hawai‘i, on May 23, 2017, which
Defendant then removed to this Court on August 9, 2017. Doc.
No. 1. The Complaint alleges that Defendant discriminated
against Plaintiff on the basis of his ancestry (Count I),
race (Count II), and color (Count III); that he was subject
to a hostile work environment (Counts I, II, and III); and
that Defendant retaliated against him (Count IV), in
violation of Hawai‘i Revised Statutes
(“HRS”) §§ 378-2(a)(1)(A) and
378-2(a)(2). Doc. No. 1-1 at ¶¶ 182-200.
Plaintiff seeks various compensatory damages and relief, as
well as punitive damages. Doc. No. 1-1 at ¶ D.
filed the present Motion for Summary Judgment on June 1,
2018. Doc. No. 26. Plaintiff filed an opposition on July 20,
2018. Doc. No. 31. Defendant submitted its Reply on July 27,
2018. Doc. No. 33. The Motion was heard on October 3, 2018.
judgment is appropriate when there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. See Fed. R. Civ. P. 56(a). “A
party seeking summary judgment bears the initial burden of
informing the court of the basis for its motion and of
identifying those portions of the pleadings and discovery
responses that demonstrate the absence of a genuine issue of
material fact.” Soremekun v. Thrifty Payless,
Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing
Celotex Corp. v. Citrate, 477 U.S. 317, 323 (1986));
T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors
Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). On a
motion for summary judgment, the court must view the facts in
the light most favorable to the nonmoving party. State
Farm Fire & Cas. Co. v. Martin, 872 F.2d 319, 320
(9th Cir. 1989).
the moving party has met its burden of demonstrating the
absence of any genuine issue of material fact, the nonmoving
party must set forth specific facts showing that there is a
genuine issue for trial. T.W. Elec., 809 F.2d at
630; Fed.R.Civ.P. 56(c). The opposing party may not defeat a
motion for summary judgment in the absence of any significant
probative evidence tending to support its legal theory.
Intel Corp. v. Hartford Accident & Indem. Co.,
952 F.2d 1551, 1558 (9th Cir. 1991). The nonmoving party
cannot stand on its pleadings, nor can it simply assert that
it will be able to discredit the movant's evidence at
trial. T.W. Elec., 809 F.2d at 630; Blue Ocean
Pres. Soc'y v. Watkins, 754 F.Supp. 1450, 1455 (D.
nonmoving party fails to assert specific facts, beyond the
mere allegations or denials in its response, summary judgment
may be entered. Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 884 (1990); Fed.R.Civ.P. 56(e).
There is no genuine issue of fact if the opposing party fails
to offer evidence “sufficient to establish the
existence of an element essential to that party's
case[.]” Celotex, 477 U.S. at 322.
considering a motion for summary judgment, “the
court's ultimate inquiry is to determine whether the
‘specific facts' set forth by the nonmoving party,
coupled with undisputed background or contextual facts, are
such that a rational or reasonable jury might return a
verdict in its favor based on that evidence.” T.W.
Elec., 809 F.2d at 631 (citing Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986)). Inferences must be
drawn in favor of the nonmoving party. Id. However,
when the opposing party offers no direct evidence of a
material fact, inferences may be drawn only if they are
reasonable in light of the other undisputed background or
contextual facts and if they are permissible under the
governing substantive law. Id. at 631-32. If the
factual context makes the opposing party's claim
implausible, that party must come forward with more
persuasive evidence than otherwise necessary to show there is
a genuine issue for trial. Bator v. Hawaii, 39 F.3d
1021, 1026 (9th Cir. 1994) (citing Cal. Architectural
Bldg. Prods., Inc. v. Franciscan Ceramics, 818 F.2d
1466, 1468 (9th Cir. 1987)).
The Sham Affidavit Allegation
preliminary matter, the Court addresses Defendant's
request to strike certain paragraphs from Plaintiff's
Declaration as a sham declaration. Def.'s Reply 1.
Specifically, Defendant asks the Court to strike paragraphs
79, 89, 102, 104, and 162 of the Declaration because they
either contain contradictions with his deposition testimony
or address information he could not recall in his deposition.
The Court denies the request.
sham affidavit rule prevents a party from creating “an
issue of fact by an affidavit contradicting his prior
deposition testimony.” Kennedy v. Allied Mut. Ins.
Co., 952 F.2d 262, 266 (9th Cir. 1991). It “does
not automatically dispose of every case in which a
contradictory affidavit is introduced to explain portions of
earlier deposition testimony.” Id. at
266-67. “In order to trigger the sham
affidavit rule, the district court must make a factual
determination that the contradiction is a sham, and the
‘inconsistency between a party's deposition
testimony and subsequent affidavit must be clear and
unambiguous to justify striking the affidavit.'”
Yeager v. Bowlin, 693 F.3d 1076, 1080 (9th Cir.
2012) (quoting Van Asdale v. Int'l Game Tech.,
577 F.3d 989, 998-99 (9th Cir. 2009)). “[T]he
non-moving party is not precluded from elaborating upon,
explaining or clarifying prior testimony elicited by opposing
counsel on deposition; minor inconsistencies that result from
an honest discrepancy, a mistake, or newly discovered
evidence afford no basis for excluding an opposition