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Phanthalasy v. Hawaiian Agents, Inc.

United States District Court, D. Hawaii

May 30, 2019

BOUNLOP PHANTHALASY, Plaintiff,
v.
HAWAIIAN AGENTS, INC.; JOHN DOES 1-5; JANE DOES 1-5; DOE CORPORATIONS 1-5; DOE PARTNERSHIPS 1-5; DOE NONPROFIT ORGANIZATIONS 1-5; and DOE GOVERNMENTAL AGENCIES 1-5, Defendants.

          ORDER GRANTING DEFENDANT AND COUNTERCLAIM PLAINTIFF HAWAIIAN AGENTS, INC.'S MOTION FOR SUMMARY JUDGMENT

          JILL A. OTAKE, UNITED STATES DISTRICT JUDGE

         Plaintiff Bounlop Phanthalasy (“Plaintiff”) initiated this Hawai‘i Revised Statutes (“HRS”) § 378-2 wrongful termination and discrimination action on the basis of his Laotian national origin. Defendant/Counterclaim Plaintiff Hawaiian Agents, Inc. (“Defendant”) moves for summary judgment on all counts of the Complaint. For the reasons articulated below, the Court GRANTS Defendant's Motion.

         BACKGROUND

         A. Factual History[1]

         Defendant, a warehousing and distribution company, employed Plaintiff as a warehouse worker from February 9, 2015 until June 7, 2017, the day he resigned under suspicion of theft of company property. Def.'s Concise Statement of Facts (“CSF”) at ¶¶ 2, 13, Decl. of Michael Cahinhinan (“Cahinhinan Decl.”) at ¶¶ 4, 13.

         During the week of May 29, 2017, Ronald Rampon, an employee of Defendant, notified management about missing forklift batteries at Defendant's warehouse. Id. at ¶ 7, Cahinhinan Decl. at ¶ 8. Defendant consequently launched an investigation, which included reviewing video surveillance from the warehouse. Id. at ¶ 8, Cahinhinan Decl. at ¶ 9. Surveillance footage from April 13, 2017 captured Plaintiff and his Filipino supervisor-neither of whom were authorized to remove Defendant's forklift batteries from the premises-loading the batteries onto an unmarked truck. Id. at ¶¶ 9-10, 12, Cahinhinan Decl. at ¶ 10, Ex. A at 20:23-21:14, Ex. C. Plaintiff insists that he did not know his supervisor was stealing batteries. Pl.'s Responsive CSF at ¶ 9, Pl.'s Decl. at ¶ 5.

         Defendant claims it offered Plaintiff the opportunity to resign in lieu of termination due to concerns about his future employability, while Plaintiff maintains that Defendant threatened to terminate him and pursue criminal charges if he declined to resign. Id. at ¶¶ 13-14, Cahinhinan Decl. at ¶¶ 13-14; Pl.'s Responsive CSF at ¶ 14, Pl.'s Decl., at ¶ 5, Exs. 1, 4. On the day Plaintiff resigned, Defendant terminated Plaintiff's supervisor for stealing the forklift batteries without offering him the option to resign.[2] Id. at ¶¶ 16-17, Cahinhinan Decl. at ¶¶ 16-17. Defendant filed a criminal complaint against Plaintiff's supervisor, but declined to pursue criminal charges against Plaintiff. Id. at ¶¶ 15, 18, Cahinhinan Decl. at ¶¶ 15, 18. According to Defendant, the theft of the batteries, i.e., company property, was the exclusive basis for obtaining Plaintiff's resignation and terminating his supervisor, not their ethnicities. Id. at ¶ 21, Cahinhinan Decl. at ¶ 20.

         During his employment, Plaintiff received an Employee Handbook and acknowledged receipt of it on May 10, 2016. Id. at ¶ 3, Cahinhinan Decl. at ¶ 5, Ex. B at 70. The Handbook identifies “[t]heft, unauthorized possession, or use of Company or other employee's property” as a prohibited offense which may result in “disciplinary action, up to and including termination.” Id. at ¶ 4, Cahinhinan Decl. at ¶ 6, Ex. B at 51. Although Plaintiff claims he acted at the direction of his supervisor in loading forklift batteries onto a pallet and denies that he was ever in unauthorized possession of company property, he acknowledged at his deposition that theft is a violation of the Handbook. Id. at ¶ 5, Ex. A at 29:19-25; 31:9-11; Pl.'s Responsive CSF at ¶ 5, Pl.'s Decl. at ¶ 5.

         On September 21, 2017, Plaintiff filed a Charge of Discrimination with the Hawaii Civil Rights Commission (“HCRC”), alleging that he was forced to resign in lieu of being discharged based on his Laotian ancestry. Id., Ex. E. Plaintiff believes that he was falsely accused of theft and that were he Filipino, Defendant would not have accused him or forced him to quit. Id. The HCRC dismissed Plaintiff's discrimination complaint on the basis of no cause. Id.

         Plaintiff did not apply for another job until June 2018, and has not submitted additional applications since then. Id. at ¶¶ 28-30, Ex. A at 34:13-38:10.

         B. Procedural History

         Plaintiff commenced this action on May 23, 2018, in the Circuit Court of the First Circuit, State of Hawai‘i. He asserts two claims: (1) wrongful termination and discrimination in violation of HRS § 378-2 (Count I) and (2) retaliation in violation of 42 U.S.C § 12203 (Count II).

         Defendant subsequently removed the action based on federal question jurisdiction.

         On February 11, 2019, Defendant filed the present Motion for Summary Judgment. ECF No. 22.

         LEGAL STANDARD

         Summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(a). “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 Corp. v. Citrate, 477 U.S. 317, 323 (1986)); T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987). In a motion for summary judgment, the court must view the facts in the light most favorable to the nonmoving party. State Farm Fire & Cas. Co. v. Martin, 872 F.2d 319, 320 (9th Cir. 1989).

         Once the moving party has met its burden of demonstrating the absence of any genuine issue of material fact, the nonmoving party must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec., 809 F.2d at 630; Fed.R.Civ.P. 56(c). The opposing party may not defeat a motion for summary judgment in the absence of any significant probative evidence tending to support its legal theory. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1558 (9th Cir. 1991). The nonmoving party cannot stand on its pleadings, nor can it simply assert that it will be able to discredit the movant's evidence at trial. T.W. Elec., 809 F.2d at 630; Blue Ocean Preservation Soc'y v. Watkins, 754 F.Supp. 1450, 1455 (D. Haw. 1991).

         If the nonmoving party fails to assert specific facts, beyond the mere allegations or denials in its response, summary judgment, if appropriate, shall be entered. Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 884 (1990); Fed.R.Civ.P. 56(e). There is no genuine issue of fact if the opposing party fails to offer evidence sufficient to establish the existence of an element essential to that party's case. Celotex, 477 U.S. at 322; Citadel Holding Corp. v. Roven, 26 F.3d 960, 964 (9th Cir. 1994); Blue Ocean, 754 F.Supp. at 1455.

         In considering a motion for summary judgment, “the court's ultimate inquiry is to determine whether the ‘specific facts' set forth by the nonmoving party, coupled with undisputed background or contextual facts, are such that a rational or reasonable jury might return a verdict in its favor based on that evidence.” T.W. Elec., 809 F.2d at 631 (citing Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986)). Inferences must be drawn in favor of the nonmoving party. Id. However, when the opposing party offers no direct evidence of a material fact, inferences may be drawn only if they are reasonable in light of the other undisputed background or contextual facts and if they are permissible under the governing substantive law. Id. at 631-32. If the factual context makes the opposing party's claim implausible, that party must come forward with more persuasive evidence than otherwise necessary to show there is a genuine issue for trial. Bator v. Hawaii, 39 F.3d 1021, 1026 (9th Cir. 1994) (citing Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, 818 F.2d 1466, 1468 (9th Cir. 1987), cert. denied, 484 U.S. 1006 (1988)).

         DISCUSSION

         A. Evidentiary Objections

         As a preliminary matter, the Court addresses Defendant's objections to Plaintiff's submissions. Defendant seeks to exclude evidence on the following grounds: (1) Plaintiff's counsel, Charles Brower, improperly attempted to authenticate Exhibits 2 and 3 to the Responsive CSF; (2) Plaintiff failed to produce any documents responsive to Defendant's first request for production of documents and in fact testified that he had no documents ...


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