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Chun v. City and County of Honolulu

United States District Court, D. Hawaii

January 9, 2019

CURTIS CHUN, Plaintiff,
v.
CITY AND COUNTY OF HONOLULU, et al. Defendants.

          ORDERORDER GRANTING CITY AND COUNTY OF HONOLULU'S MOTION TO DISMISS WITH LEAVE TO AMEND, ECF NO. 9

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On 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”)[1] 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. Id.

         Currently 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 to amend.

         II. BACKGROUND

         A. Factual Background

         The factual allegations in the Complaint[2] 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.

         B. Procedural History

         Chun 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. 47.

         III. STANDARD OF REVIEW

         Federal 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. 1990)).

         “To 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.

         IV. DISCUSSION

         The Court dismisses both of Chun's claims: (1) the Title VII wrongful termination claim; and (2) the “hazardous work environment” claim. To the extent that Chun alleged a claim under the Americans with Disabilities Act (“ADA”), that claim is also ...


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