United States District Court, D. Hawaii
MELECIO P. CUARESMA, Plaintiff,
LOCKHEED MARTIN CORPORATION, JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5, DOE LLCS 1-5, DOE PARTNERSHIPS 1-5, DOE NON-PROFIT ORGANIZATIONS 1-5, and DOE GOVERNMENTAL AGENCIES 1-5; Defendants.
ORDER GRANTING DEFENDANT LOCKHEED MARTIN
CORPORATION'S MOTION FOR SUMMARY JUDGMENT
C. KAY SR. UNITED STATES DISTRICT JUDGE.
reasons discussed below, Defendant Lockheed Martin
Corporation's Motion for Summary Judgment is:
1. GRANTED as to Plaintiff Cuaresma's national origin
discrimination claims because Plaintiff Cuaresma has
abandoned those claims and agrees that summary judgment is
2. GRANTED as to Plaintiff Cuaresma's age discrimination
claims because Plaintiff Cuaresma has abandoned those claims
and has failed to establish a prima facie case for age
3. GRANTED as to Plaintiff Cuaresma's Hawai`i
Whistleblowers' Protection Act retaliation claim because
Plaintiff Cuaresma has failed to establish the causal
connection element of a prima facie HWPA retaliation claim.
February 13, 2017, Plaintiff Melecio P. Cuaresma
(“Plaintiff Cuaresma”) filed a Complaint in the
Circuit Court of the First Circuit, State of Hawai`i, in
which he asserts two counts against his former employer,
Defendant Lockheed Martin Corporation (“Defendant
Lockheed”), and a series of Doe defendants. ECF No.
1-2. The first count alleges that Plaintiff Cuaresma was
discriminated against because of his national origin
(Filipino) and age (62 at the time of the alleged
discrimination),  in violation of Hawai`i Revised Statutes
(“H.R.S.”) § 378-2; the second count alleges
that Plaintiff Cuaresma was terminated in retaliation for
engaging in a protected activity in violation of the Hawai`i
Whistleblowers' Protection Act (“HWPA”),
H.R.S. § 378-62. Compl. ¶¶ 11-16. Prior to
filing his Complaint, Plaintiff Cuaresma filed Charges of
Discrimination with the Hawai`i Civil Rights Commission and
with the Equal Employment Opportunity Commission. He received
right-to-sue letters from both agencies on November 15, 2016
and on December 6, 2016, respectively, thereby exhausting his
administrative remedies. Id. at ¶¶ 7-8. On
July 11, 2017, Defendant Lockheed timely filed a Notice of
Removal pursuant to 28 U.S.C. § 1446. ECF No. 1. Removal
is proper pursuant to 28 U.S.C. §§ 1332 and 1441.
September 12, 2018, Defendant Lockheed filed a Motion for
Summary Judgment (“Mot.”), a Memorandum in
Support of Motion (“Mem.”) and a Concise
Statement of Facts (“Def. CSF”). ECF Nos. 28,
28-1, 29. On December 24, 2018, Plaintiff Cuaresma filed his
Concise Statement of Facts (“Pl. CSF”) in
opposition to Defendant Lockheed's Concise Statement of
Facts, and on December 25, 2018, Plaintiff Cuaresma filed his
Memorandum in Opposition to Defendant Lockheed's Motion
(“Opp.”). ECF Nos. 41, 42. On December 31, 2018,
Defendant Lockheed filed its Reply. ECF No. 43. The Court
held a Hearing on Defendant Lockheed's Motion on January
15, 2019 at 11:00 a.m.
Lockheed operates a facility on a Navy base at Ewa Beach that
builds and rebuilds torpedoes. Def. CSF ¶ 1; Mem. at 3.
Defendant Lockheed hired Plaintiff Cuaresma as a
custodian/janitor at its facility on July 19, 2010. Def. CSF
¶ 1; Compl. at ¶ 10(a). Because Defendant
Lockheed's facility is located on a Navy base, Plaintiff
Cuaresma was required to undergo a background check and
obtain government clearance prior to being employed. Def. CSF
¶ 1; Mem. at 4.
Cuaresma principally complains that he was terminated on July
17, 2015 in retaliation for reporting an unsafe work
condition to his union, which in turn notified Defendant
Lockheed of Plaintiff Cuaresma's report. Pl. Decl. at
¶¶ 9-14. Plaintiff Cuaresma also alleges that he
was terminated due to his Filipino national origin and age.
Id. Plaintiff Cuaresma further complains that on
June 19, 2015, he was allegedly denied a promotion to the
Engineering Technician I (“Tech. I”) position
while other younger, non-Filipino employees were hired to
fill those positions. Id. at ¶ 6. Plaintiff
Cuaresma also alleges that on June 30, 2015, he was suspended
because he left his backpack in an area where doing so was
forbidden, while other younger, non-Filipino employees who
did the same were not similarly suspended. Id. at
¶ 7. The specific facts relevant to each of these events
are set forth below.
Plaintiff Cuaresma's Work Performance History and the
Tech. I Position
sole custodian/janitor for Defendant Lockheed, Plaintiff
Cuaresma was responsible for cleaning Defendant
Lockheed's building and its smoke shack. Def. CSF ¶
5; ECF No. 29-2, Deposition of Melecio P. Cuaresma, Jr.
(“Pl. Dep.”) 35:18-36:8. Plaintiff Cuaresma's
responsibilities included cleaning restrooms, offices,
breakrooms and showers. Def. CSF ¶ 5; Pl. Dep. at
36:12-20. Plaintiff Cuaresma was also required to take out
trash, clean tables, mop and wax floors, and clean
refrigerators and microwaves. Def. CSF ¶ 5; Pl. Dep. at
37:1-21. Plaintiff Cuaresma's direct supervisor was Ralph
“Jim” Kirk (“Mr. Kirk”), who reported
to Richard J. Dunn (“Mr. Dunn”), Defendant
Lockheed's General Manager. Def. CSF ¶ 4.
record demonstrates that Plaintiff Cuaresma often had
difficulty cleaning to the level that his position required,
and that he was repeatedly trained and counseled on his
cleaning ability throughout the course of his employment.
See Def. CSF ¶¶ 6, 8-17, 19-20, 23-24,
26-29, 31. The record indicates that between April 16, 2012
and June 17, 2015, Plaintiff Cuaresma was provided with
specific cleaning schedules and plans on at least three
occasions, which were designed help him clean more
effectively and better manage his cleaning duties.
See ECF No. 29-3, Declaration of Ralph J. Kirk, Jr.
(“Kirk Decl.”) ¶¶ 5, 13, 20. Plaintiff
was also given instructions and/or demonstrations on how to
properly clean on at least fourteen occasions during that
same time period. See id. ¶¶ 8-13, 16-19;
ECF No. 29-4, Declaration of Timothy Ahern (“Ahern
Decl.”) ¶¶ 10-11, 13-14. Plaintiff Cuaresma
received several formal written and verbal disciplinary
warnings regarding the inadequacy of his job performance.
Plaintiff Cuaresma received written warnings on July 31, 2012
and on April 4, 2014. Def. CSF ¶¶ 15, 28; Ahern
Decl. ¶¶ 5, 9; ECF Nos. 29-44, 29-47, Exhs. R, GG.
Plaintiff Cuaresma received verbal warnings on July 11, 2012
and on April 15, 2013. Def. CSF ¶ 13; Ahern Decl. ¶
3; Kirk Decl. ¶ 23; ECF No. 29-42, Exh. M. Plaintiff
Cuaresma does not object to any of the aforesaid facts. Pl.
CSF. at p. 1. Accordingly, pursuant to Local Rule 56.1(g),
aforesaid facts are deemed admitted.
27, 2015, Plaintiff Cuaresma applied for a Tech. I
position. Def. CSF ¶ 36; Pl. Dep. 123:12-14.
The Tech. I position involves working with dangerous
ammunition, chemicals and torpedo fuel; it also requires the
ability to follow instructions, computer literacy, and a high
level of situational awareness. Def. CSF ¶¶ 36-37;
ECF No. 29-26, Declaration of Richard Dunn (“Dunn
Decl.”) ¶¶ 26-27, 31. On June 19, 2015,
Plaintiff Cuaresma learned that he was not selected for the
position. Def. CSF ¶ 37; Dunn Decl. ¶¶ 28-30;
Pl. Decl. ¶ 6.
Plaintiff Cuaresma's Suspension
October 1, 2012, Plaintiff Cuaresma left his backpack in a
breakroom rather than storing it in a locker as was required
by a government policy. Def. CSF ¶ 18; Kirk Decl. ¶
17; Pl. Dep. 205:7-206:2. Upon finding the backpack, Mr. Kirk
instructed Plaintiff Cuaresma that he needed to comply with
the government's policy and store his backpack in a
locker. Def. CSF ¶ 18; Kirk Decl. ¶ 17; Pl. Dep.
205:7-206:2; ECF No. 29-15, Exh. U. On June 25, 2013,
Plaintiff Cuaresma again left his backpack in the breakroom,
and Mr. Kirk gave him a written warning for violating the
backpack policy for the second time. Def. CSF ¶ 25; Kirk
Decl. ¶ 25; ECF No. 29-22, Exh. BB. Plaintiff Cuaresma
violated the backpack policy for a third time on July 31,
2013, and on August 2, 2013, he received his second written
warning for having done so. Def. CSF ¶ 25; Ahern Decl.
¶ 7; Pl. Dep. 208:5-9; ECF No. 29-46, Exh. CC. On June
9, 2015, Plaintiff Cuaresma received an Employee Performance
Notice because he violated the backpack policy for a fourth
time on June 4, 2015. Def. CSF ¶ 30; Ahern Decl. ¶
12; ECF No. 29-50, Exh. KK. Plaintiff Cuaresma was suspended
from his employment for three days beginning on June 10, 2015
as a result of this fourth violation. Id. Plaintiff
Cuaresma does not object to any of the facts related to his
suspension, so the aforesaid facts are deemed admitted.
See Pl. CSF at p. 1; L.R. 56.1(g).
Plaintiff Cuaresma's Termination
following events precipitated Plaintiff Cuaresma's
termination. At the end of the workday on July 13, 2015,
Plaintiff Cuaresma left a wet cleaning brush pad on an active
electrical transformer in Defendant Lockheed's facility,
which created a safety hazard. Def. CSF ¶¶ 32-33;
Dunn Decl. ¶ 14. Mr. Dunn reported this incident to the
relevant Navy contracting officer. Def. CSF ¶¶
32-33; Dunn Decl. at ¶ 15; ECF No. 29-35, Exh. PP. The
Navy subsequently revoked Plaintiff Cuaresma's access to
Defendant Lockheed's facility, and Plaintiff Cuaresma was
asked to leave the facility on July 14, 2015. Def. CSF ¶
33; Dunn Decl. ¶ 16; Pl. Decl. ¶ 8. Plaintiff
Cuaresma submits that after he was asked to leave Defendant
Lockheed's facility on July 14, 2015, he reported an
unsafe work condition to his union-the lack of any signage
indicating that the transformer on which he left a wet
cleaning brush pad was an electrical hazard. Pl. Decl. ¶
morning of July 15, 2015, Mr. Dunn decided to terminate
Plaintiff Cuaresma's employment. Def. CSF ¶ 33;
Dunn. Decl. ¶ 17; ECF No. 43-1, Second Declaration of
Richard Dunn (“Dunn Decl. II”) ¶ 3; ECF No.
29-36, Exh. QQ. That same day at 11:33 a.m. Hawai`i time,
Maria Lillis of Plaintiff Cuaresma's union emailed
Virginia Lee (“Ms. Lee”), Defendant
Lockheed's human resources representative, and inquired
whether Plaintiff Cuaresma had been terminated on July 14,
2015. Def. CSF ¶ 34; Dunn Decl. ¶ 18; see
Exh. RR. Ms. Lee responded to Ms. Lillis's email ten
minutes later, with copy to Billy Panui (“Mr.
Panui”), another union representative, and stated that
she had emailed Mr. Panui earlier that morning to inform him
that Plaintiff Cuaresma was not terminated on July 14, 2015,
but that his termination would be effective on July 17, 2015.
Def. CSF ¶ 34; Dunn Decl. ¶ 18; Exh. RR. Later on
July 15, 2015, at 1:08 p.m. Hawai`i time,  Ms. Lee sent an
internal email requesting preparation of a final paycheck for
Plaintiff Cuaresma with an official termination date of July
17, 2015. Def. CSF ¶ 34; Dunn Decl. ¶ 18; ECF No.
29-38, Exh. SS.
under two hours after Ms. Lee requested Plaintiff
Cuaresma's final paycheck, Mr. Panui sent an email to Mr.
Dunn at 2:53 p.m. Hawai`i time requesting further
clarification on whether Plaintiff Cuaresma had been fired.
Mr. Panui also asked for permission to access Defendant
Lockheed's facilities in order to conduct a union
investigation into the electrical transformer incident. Pl.
Decl. ¶ 10; ECF No. 41-10, Exh. 9. On the evening of
July 15, 2015, at 6:26 p.m., Mr. Dunn memorialized the
decision he had made that morning to terminate Plaintiff
Cuaresma by inputting a formal termination request into
Defendant Lockheed's internal human resources system.
Def. CSF ¶ 33; Dunn Decl. ¶¶ 17-18; Exh. QQ.
Ms. Lee approved the termination request a few minutes later
at 6:34 p.m. Id.
16, 2015, Defendant Lockheed received notice of an
Occupational Safety and Health Administration
(“OSHA”) complaint regarding the electrical
transformer incident, which Plaintiff Cuaresma's union
had filed on his behalf earlier that same day. Dunn Decl.
¶ 20; ECF No. 29-40, Exh. UU. On July 17, 2015, Mr. Dunn
sent a letter to Plaintiff Cuaresma formally notifying him
that he was terminated. Def. CSF ¶ 34; Dunn. Decl.
¶ 19; ECF No. 29-39, Exh. TT. The letter states that
Plaintiff Cuaresma was terminated due to his
“unsatisfactory level of situational awareness which
create[d] a clear safety/security risk as [he] demonstrated
most recently by placing wet cleaning materials on top and in
front of active electrical systems.” Exh. TT.
Hearing held on January 15, 2019, counsel for Plaintiff
Cuaresma stated that his client had no reason to dispute the
timing of the aforesaid events as corroborated by the various
emails in the record.
judgment is proper where there is no genuine issue of
material fact and the moving party is entitled to judgment as
a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil
Procedure 56(a) mandates summary judgment “against a
party who fails to make a showing sufficient to establish the
existence of an element essential to the party's case,
and on which that party will bear the burden of proof at
trial.” Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986); see also Broussard v. Univ. of
Cal., 192 F.3d 1252, 1258 (9th Cir. 1999).
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, 477 U.S. at 323); see also Jespersen v.
Harrah's Operating Co., 392 F.3d 1076, 1079 (9th
Cir. 2004). “When the moving party has carried its
burden under Rule 56[(a)] its opponent must do more than
simply show that there is some metaphysical doubt as to the
material facts [and] come forward with specific facts showing
that there is a genuine issue for trial.”
Matsushita Elec. Indus. Co. v. Zenith Radio, 475
U.S. 574, 586-87 (1986) (citation and internal quotation
marks omitted); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986) (stating that a party
cannot “rest upon the mere allegations or denials of
his pleading” in opposing summary judgment).
issue is ‘genuine' only if there is a sufficient
evidentiary basis on which a reasonable fact finder could
find for the nonmoving party, and a dispute is
‘material' only if it could affect the outcome of
the suit under the governing law.” In re
Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson, 477 U.S. at 248). When considering the
evidence on a motion for summary judgment, the court must
draw all reasonable inferences on behalf of the nonmoving
party. Matsushita Elec. Indus. Co., 475 U.S. at 587;
see also Posey v. Lake Pend Oreille Sch. Dist. No.
84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that
“the evidence of [the nonmovant] is to be believed, and
all justifiable inferences are to be drawn in his
favor” (internal citation and quotation omitted)).
H.R.S. § 378-2 ...