United States District Court, D. Hawaii
ORDER GRANTING CITY AND COUNTY OF HONOLULU'S
MOTION TO DISMISS WITH LEAVE TO AMEND, ECF NO. 9
A. OTAKE, UNITED STATES DISTRICT JUDGE
GRANTING CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS
WITH LEAVE TO AMEND, ECF NO. 9
April 10, 2018, Plaintiff Curtis Chun
(“Plaintiff” or “Chun”) filed this
action alleging claims against Defendants City and County of
Honolulu (“City”), and City and County of
Honolulu Department of Environmental Services
(“DES”) for violation of Title VII of the Civil
Rights Act of 1964 (“Title VII”), 42 U.S.C.
§ 2000e et seq. Compl., ECF No. 1. Specifically, Chun
brings two claims: (1) “Hazardous Work
Environment”; and (2) Wrongful Termination.
before the Court is the City's Motion to Dismiss for
failure to state a claim. ECF No. 9. Based on the following,
the Court GRANTS the City's Motion to Dismiss, with leave
factual allegations in the Complaint are as follows: Chun worked
for DES from 2003 to 2012. Compl. ¶¶ 11, 14. While
working for DES, he was exposed to hydrogen sulfide when he
inspected wastewater areas. Id. ¶ 15. As a
result of this cumulative exposure, Chun suffers from toxic
encephalopathy with symptoms including: collapsing, losing
balance, trouble breathing, sensitivity to many common odors
and fumes, an anxiety disorder, weight loss, elevated blood
pressure, and sensitivity to microphones, televisions, and
fluorescent lights. Id. ¶¶ 13-14, 17,
21-23. Chun sought medical treatment for his condition in
2006 and several times in 2008. Id. ¶¶
19-20. In 2009, his physician advised Chun to stay away from
hydrogen sulfide. Id. ¶ 20. It also appears
that at some point Chun brought a work injury claim to the
Hawaii Department of Labor, which was denied. Id.
¶ 18. Chun claims that “healthy people . . . are
ridiculing him . . . and discriminating against his
disability.” Id. ¶ 25. Chun reported
safety violations to DES concerning hydrogen sulfide
exposure. Id. ¶ 27. In retaliation for
Chun's reporting these violations, DES terminated his
employment on July 25, 2012. Id. ¶ 28.
filed his Complaint on April 10, 2018, alleging one count of
“hazardous work environment” and one count of
wrongful termination. ECF No. 1. On May 15, 2018, the City
filed a Motion to Dismiss (the “Motion”). ECF No.
9. The Motion was stayed pending resolution of Chun's
original counsel's Motion to Withdraw as Counsel, ECF No.
5. ECF No. 10. The Motion to Withdraw as Counsel was granted
on June 1, 2018. ECF No. 12. At that point, Chun proceeded on
a pro se basis until a Notice of Appearance was filed on
behalf of Chun by new counsel on September 24, 2018. ECF No.
35. Chun filed his Opposition to the Motion on September 24,
2018. ECF No. 36. The City filed its Reply on October 8,
2018. ECF No. 39. The Court found the matter suitable for
decision without a hearing under Local Rule 7.2(d). ECF No.
STANDARD OF REVIEW
Rule of Civil Procedure 12(b)(6) permits a motion to dismiss
for “failure to state a claim upon which relief can be
granted.” A Rule 12(b)(6) dismissal is proper when
there is either 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.
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. 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). This tenet
- that the court must accept as true all of the allegations
contained in the complaint - “is inapplicable to legal
conclusions, ” and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Iqbal, 556 U.S.
at 678 (citing Twombly, 550 U.S. at 555). Rather,
“[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.” Id. (citing
Twombly, 550 U.S. at 556). Factual allegations that
only permit the court to infer “the mere possibility of
misconduct” do not show that the pleader is entitled to
relief. Id. at 679.