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Cuaresma v. Lockheed Martin Corp.

United States District Court, D. Hawaii

January 31, 2019

MELECIO P. CUARESMA, Plaintiff,
v.
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

          ALAN C. KAY SR. UNITED STATES DISTRICT JUDGE.

         For the 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 appropriate;
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 discrimination;
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.

         PROCEDURAL BACKGROUND

         On 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)[1], [2] 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.

         On 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.”).[3][4] 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.

         FACTUAL BACKGROUND

         Defendant 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.

         Plaintiff 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.

         I. Plaintiff Cuaresma's Work Performance History and the Tech. I Position

         As the 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.

         The 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), [5] the aforesaid facts are deemed admitted.

         On May 27, 2015, Plaintiff Cuaresma applied for a Tech. I position.[6] 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.

         II. Plaintiff Cuaresma's Suspension

         On 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).

         III. Plaintiff Cuaresma's Termination

         The 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. ¶ 10.[7]

         On the 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, [8] 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.

         Just 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.

         On July 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.

         At the 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.

         STANDARD

         Summary 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).

         “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, 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).

         “An 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)).

         DISCUSSION

         I. H.R.S. ยง 378-2 ...


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