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Kamakeeaina v. Armstrong Produce, Ltd.

United States District Court, D. Hawaii

March 22, 2019




         On 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.

         Because 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.


         I. The Complaint

         Kamakeeaina asserts claims under at least four federal statutes, together with a claim for intentional infliction of emotional distress.

         Under 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.

         The 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.

         The 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 assistance.

         II. The Motion to Dismiss and Subsequent Filings

          The 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 ADEA.

         A 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.

         On 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.

         Nevertheless, 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.


         I. Motion to Dismiss Under Rule 12(b)(6)

         Rule 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.

         II. Pro Se Status

         The 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 Civil Procedure.

         King 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).


         A. The Motion to Strike

          As 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.[1]

         Essentially, 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.

         B. The Motion to Dismiss

          As 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.

         1. The Age Discrimination Act

         Armstrong 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 case.

         As 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.[2] 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.

         In 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 ...

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