United States District Court, D. Hawaii
BUDDY P. KAMAKEEAINA, Plaintiff,
ARMSTRONG PRODUCE, LTD., Defendant.
ORDER (1) GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS; (2) DISMISSING COMPLAINT
IN PART WITH PARTIAL LEAVE TO AMEND; AND (3) GRANTING
DEFENDANT'S MOTION TO STRIKE
DERRICK K. WATSON UNITED STATES DISTRICT JUDGE
December 7, 2018, Plaintiff Buddy P. Kamakeeaina, proceeding
pro se, filed a Complaint against Armstrong Produce, Ltd.,
alleging that he was not hired for a position with Armstrong
due to disability and age in violation of the Americans with
Disabilities Act (ADA), the Age Discrimination Act, the Age
Discrimination in Employment Act (ADEA), and the
Rehabilitation Act of 1973. Dkt. No. 1. On January 23, 2019,
Armstrong moved to dismiss each of Kamakeeaina's claims,
with the exception of the ADEA claim, with prejudice. Dkt.
No. 13. Although the motion to dismiss was scheduled for a
hearing on March 15, 2019, Kamakeeaina did not file a
response in opposition by the deadline set by the Local
Rules. Instead, Kamakeeaina filed a response 17 days after
the deadline had passed, which Armstrong has moved to strike
for that very reason.
the Complaint, in some instances, fails to state a claim for
relief, it is dismissed in part, as explained below. However,
because, contrary to Armstrong's assertion, Kamakeeaina
does not concede in the Complaint that he was using marijuana
at the time of his pre-employment interview, the heart of
Kamakeeaina's case is not dismissed. Because
Kamakeeaina's response to the motion to dismiss was
untimely filed, Armstrong's motion to strike is granted.
asserts claims under at least four federal statutes, together
with a claim for intentional infliction of emotional
the Age Discrimination Act and the ADEA, Kamakeeaina asserts
claims of age discrimination. In essence, these claims allege
that Kamakeeaina was 46 years of age at the time he applied
and was passed over for a “Receiver II/Forklift
Operator” position with Armstrong, while other
applicants were at least 8 to 10 years younger.
majority of the Complaint, though, is dedicated to claims
under the ADA. In that regard, the Complaint alleges as
follows. Kamakeeaina suffers from post-traumatic stress
disorder (PTSD) and depression. After Armstrong made
Kamakeeaina a conditional offer of employment, he was
required to, among other things, pass an on-site drug test.
Kamakeeaina also had a subsequent interview with
Armstrong's Human Resources Director Marlene McKenzie
(McKenzie). At that interview, Kamakeeaina told McKenzie that
he was registered under Hawaii's Medical Cannabis
Program. After continued conversation between the two,
McKenzie told Kamakeeaina that, if his drug test was
positive, Armstrong would need to withdraw its employment
offer. Thereafter, Kamakeeaina said to McKenzie that he was
“prepared to have the offer taken off the table.”
After further conversation, but without McKenzie
administering a drug test, she withdrew Kamakeeaina's
employment offer. Based upon his conversation with McKenzie,
as well as her conduct, Kamakeeaina alleges that a host of
statutory provisions under the ADA were violated.
Principally, though, the Complaint alleges a failure-to-hire
claim under the ADA.
Complaint also attempts to allege violations of the
Rehabilitation Act. Although the factual allegations are
sparse to non-existent in this regard, it appears that these
alleged violations are premised upon the same allegations on
which Kamekeeaina's ADA claim is premised, along with
Armstrong having a contract in excess of $10, 000 with the
federal government and/or receiving federal financial
The Motion to Dismiss and Subsequent
Motion to Dismiss seeks dismissal with prejudice of
Kamakeeaina's Age Discrimination Act, ADA, Rehabilitation
Act, and intentional infliction of emotional distress claims.
Armstrong moves for such relief under Federal Rule of Civil
Procedure 12(b)(6). The Motion to Dismiss states that
Armstrong does not seek dismissal of any claim under the
hearing on the Motion to Dismiss was set for March 15, 2019.
Dkt. No. 15. Pursuant to Local Rule 7.4, this meant that a
response in opposition was due on February 22, 2019. After
that day came and went, Armstrong timely filed a reply in
support of the Motion to Dismiss on March 1, 2019. Dkt. No.
16. In reply, Armstrong asserted that an opposition had not
been filed and asked for the Motion to Dismiss to be granted
for the reasons set forth therein.
March 4, 2019, Kamakeeaina filed a “Motion for Time
Extension of the March 15th, 2019 Hearing Regarding
Defendant's motion to Dismiss Plaintiff's Employment
Discrimination Complaint” (“the motion for
extension of hearing”). Dkt. No. 17. A day later,
construing the motion for extension of hearing as seeking a
postponement of the March 15, 2019 hearing, the Court denied
the same as moot because, at the same time, the Court elected
to decide the Motion to Dismiss without a hearing, pursuant
to Local Rule 7.2. Dkt. No. 18.
on March 11, 2019, Kamakeeaina filed a response in opposition
to the Motion to Dismiss. Dkt. No. 21. The response is 36
pages in length and does not contain a certificate from
Kamakeeaina as to whether it complies with the word
limitation set forth in Local Rule 7.5(b). In large part, the
response essentially re-states, in verbatim fashion, the
allegations of the Complaint. One thing (or things) the
response does add, however, are 29 exhibits, including a CD
purportedly containing the conversation between Kamakeeaina
and McKenzie. Armstrong has moved to strike Kamakeeaina's
response for violating the Local Rules and/or due to
prejudice (“the Motion to Strike”). Dkt. No. 23.
Motion to Dismiss Under Rule 12(b)(6)
12(b)(6) authorizes the Court to dismiss a complaint that
fails “to state a claim upon which relief can be
granted.” Rule 12(b)(6) is read in conjunction with
Rule 8(a), which requires “a short and plain statement
of the claim showing that the pleader is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). Pursuant to Ashcroft
v. Iqbal, “[t]o 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.'” 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). In addition, “the tenet that a court must
accept as true all of the allegations contained in a
complaint is inapplicable to legal conclusions.”
Id. Accordingly, “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory
statements, do not suffice.” Id. (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 as required
by Rule 8(a)(2). Id. at 679.
Pro Se Status
Court liberally construes a pro se Complaint. Eldridge v.
Block, 832 F.2d 1132, 1137 (9th Cir. 1987). With that in
mind, “[u]nless it is absolutely clear that no
amendment can cure the defect . . . a pro se litigant is
entitled to notice of the complaint's deficiencies and an
opportunity to amend prior to dismissal of the action.”
Lucas v. Dep't of Corr., 66 F.3d 245, 248 (9th
Cir. 1995). However, the Court cannot act as counsel for a
pro se litigant or supply the essential elements of a claim.
Pliler v. Ford, 542 U.S. 225, 231 (2004); Ivey
v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268
(9th Cir. 1982). In addition, a pro se litigant must still
follow this Court's Local Rules and the Federal Rules of
v. Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987),
overruled on other grounds by Lacey v. Maricopa
Cty., 693 F.3d 896, 925, 928 (9th Cir. 2012).
The Motion to Strike
Armstrong asserts in its Motion to Strike, Kamakeeaina's
response in opposition to the Motion to Dismiss is
undoubtedly untimely. Because the Motion to Dismiss was
initially scheduled for a hearing on March 15, 2019, pursuant
to Local Rule 7.4, Kamakeeaina's response was due on or
before February 22, 2019. No. response was filed by that
deadline. Instead, the instant response was filed on March
11, 2019-17 days late. In the response, Kamakeeaina provides
no explanation for this delay, and he also fails to make any
argument that the time to file a response should be extended.
Because Kamakeeaina makes no attempt to defend the late
filing of his response, the Court will not do so either. As a
result, pursuant to Local Rule 7.4, the Court GRANTS the
Motion to Strike and instructs the Clerk to STRIKE the
response at Dkt. No. 21.
therefore, the Motion to Dismiss is unopposed. Nonetheless,
the Court will review the substantive merits of the Motion to
Dismiss in order to determine whether Armstrong, as the
movant, is entitled to the relief it seeks.
The Motion to Dismiss
already mentioned, Armstrong seeks dismissal of
Kamakeeaina's claims under the Age Discrimination Act,
the ADA, and the Rehabilitation Act, and for intentional
infliction of emotional distress. The Court addresses these
arguments, in turn, below.
The Age Discrimination Act
argues that any claim under the Age Discrimination Act must
be dismissed because that statute does not apply to the
employment practices of an employer. Although it does not
appear that the Ninth Circuit has addressed this specific
issue, the Court agrees with Armstrong for purposes of this
Kamakeeaina asserts in the Complaint, the Age Discrimination
Act provides that no person shall, “on the basis of
age, be excluded from participation in, be denied the
benefits of, or be subjected to discrimination under, any
program or activity receiving Federal financial
assistance.” 42 U.S.C. § 6102. The closest the
Complaint gets to alleging that Armstrong receives federal
financial assistance is in asserting that it has
“business transactions with the federal
government.” Compl. at 15, Dkt. No. 1. The Complaint
provides no further factual allegations about Armstrong's
alleged “business transactions” with the
government. To the extent Kamakeeaina means procurement
contracts, such contracts are not a form of federal financial
assistance contemplated by the statute. See Jacobson v.
Delta Airlines, Inc., 742 F.2d 1202, 1209 (9th Cir.
1984) (explaining that “federal financial
assistance” under the Rehabilitation Act does not
include procurement contracts, such as “contracts in
which goods or services are sold or purchased by the
government at fair market value); 34 C.F.R. § 110.3
(applying the same interpretation to “[f]ederal
financial assistance” in the Age Discrimination Act).
Therefore, any claim under the Age Discrimination Act is
subject to dismissal in that it fails to allege that
Armstrong receives federal financial assistance.
addition, there is no reason to grant Kamakeeaina leave to
amend this claim. This is because the Age Discrimination Act
further provides that, nothing in the statute, should be
construed as authorizing an action “by any Federal
department or agency with respect to any employment practice
of any employer….” 42 U.S.C. § 6103(c)(1).
Although this language could be construed as limiting only a
federal department or agency from bringing an action against
an employer, the Court agrees with, as far as this Court can
tell, every district court to have addressed the issue that
an individual also does not have authority to bring an action
under the Age Discrimination Act against an employer.
See, e.g., Tyrrell v. City of Scranton, 134
F.Supp. 2d. 373, 381-383 (M.D.Pa. 2001) (finding that the Age
Discrimination Act does not support a claim for
discrimination in an employer's employment practices).
This is especially so given that the Age Discrimination Act