United States District Court, D. Hawaii
ORDER GRANTING DEFENDANT AND COUNTERCLAIM PLAINTIFF
HAWAIIAN AGENTS, INC.'S MOTION FOR SUMMARY
A. OTAKE, UNITED STATES DISTRICT JUDGE
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
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 ¶¶
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.
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. 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.
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.
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.
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.
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).
subsequently removed the action based on federal question
February 11, 2019, Defendant filed the present Motion for
Summary Judgment. ECF No. 22.
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).
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).
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.
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.
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 ...