United States District Court, D. Hawaii
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS' MOTION FOR SUMMARY JUDGMENT AND DENYING
PLAINTIFF'S CROSS-MOTIONS FOR PARTIAL SUMMARY
A. OTAKE, UNITED STATES DISTRICT JUDGE
before the Court is Defendants' Motion for Summary
Judgment (ECF No. 45) on all twenty of pro se Plaintiff's
causes of action, and Plaintiff's Motions for Partial
Summary Judgment on Counts 13, 14, and 18 (ECF Nos. 39, 41,
65). For the reasons set forth below, Defendants' Motion
is GRANTED in part and DENIED in part, and Plaintiff's
Motions are DENIED.
Plaintiff Mario Cooper was employed as a delinquent tax
collector with the Hawaii Department of Taxation
(“HDT”) when he began experiencing pain in both
his elbows, which he attributes in part to the number of
keystrokes he typed as a tax collector. ECF No. 36
¶¶ 15-16. Plaintiff also alleges that the air vents
in his office blew cold air on him which exacerbated his
elbow pain. ECF No. 36 ¶ 21. Plaintiff filed a
workers' compensation claim, and after a hearing, the
Department of Labor and Industrial Relations Disability
Compensation Division (“DLIR”) found that
Plaintiff suffered a work-related injury on March 11, 2016,
which caused Plaintiff's bilateral elbow tendonitis. ECF
No. 46 ¶ 3; ECF No. 66 at 4 ¶ 3. Through the course
of three decisions on the matter, DLIR awarded workers'
compensation benefits, including what is known as
“temporary total disability” to Plaintiff for his
injury for various periods of time. ECF Nos. 46-6, 46-7,
continued to experience pain and discomfort in his elbows and
on August 22, 2016, Plaintiff requested an ergonomic keyboard
and chair. ECF No. 46-30 at 3; ECF No. 66 at 12 ¶ 19.
Plaintiff claims that he also requested permission to
telecommute to work. ECF No. 66 at 7 ¶ 32. HDT, however,
contends that when Plaintiff asked for an ergonomic keyboard,
HDT instructed him to make a formal request, and that his
eventual formal request only sought a separate office space,
which HDT denied. See ECF No. 46-1 ¶ 25; ECF
No. 46-30. But both HDT and Plaintiff agree that HDT engaged
in an interactive process to provide reasonable
accommodations. ECF No. 46 ¶ 13; ECF No. 66 at 5 ¶
from May 23, 2017 to June 30, 2017, Plaintiff did not show up
to work. ECF No. 66 at 4 ¶ 7. Plaintiff provided HDT
with several medical slips establishing that Plaintiff was
under medical care at various times throughout this period.
HDT received one of these medical slips on April 21, 2017,
stating that Plaintiff would be able to return to work on May
23, 2017. ECF No. 46-10; ECF No. 46 ¶ 6; ECF No. 66 at 4
¶ 6. But Plaintiff did not return to work on May 23, and
HDT did not receive another medical slip until July 3, 2017,
stating that Plaintiff would be able to return to work with
no limitations on July 10, 2017. ECF No. 46-11; ECF No. 46
¶ 10; ECF No. 66 at 4 ¶ 10. Although Plaintiff
contends he attempted to call HDT to apprise his employer of
his medical absence between the period of May 23 to June 30,
Plaintiff conceded at the hearing that he was never able to
do so despite his attempts. It is thus undisputed that from
May 23, 2017 to June 30, 2017, Plaintiff did not show up to
work and HDT was unaware of why he was absent.
collective bargaining agreement governs Plaintiffs employment
with HDT. ECF No. 46 ¶ 2; ECF No. 66 at 4 ¶ 2.
Under the collective bargaining agreement, when an employee
does not show up to work for fifteen days after the
conclusion of a leave period, HDT may consider that employee
to have resigned from employment. ECF No. 46 ¶ 9; ECF
No. 66 at 4 ¶ 9. After a pre-discharge hearing, HDT
discharged Plaintiff from his employment on July 17, 2017, on
the grounds that he did not show up to work and did not
inform HDT of his absence from May 23 to June 30, 2017. ECF
No. 46-19; ECF No. 46 ¶ 16; ECF No. 66 at 5 ¶ 16.
challenged his discharge under the collective bargaining
agreement's grievance and arbitration process. ECF No. 46
¶ 17; ECF No. 66 at 5 ¶ 17. While the grievance
process was still ongoing, Plaintiff brought this lawsuit
seeking relief on numerous grounds.
brought this action on July 24, 2018 and filed his operative
First Amended Complaint (“Complaint”) on November
2, 2018. The Complaint alleges the following causes of
• Counts 1 and 2: Unlawful termination in violation of
the ADA and the Rehabilitation Act.
• Counts 3 and 4: Failure to provide leave as a
reasonable accommodation in violation of the ADA and the
• Counts 5 and 6: Failure to provide ergonomic keyboard
as a reasonable accommodation in violation of the ADA and the
• Counts 7 and 8: Failure to provide flex time as a
reasonable accommodation in violation of the ADA and the
• Counts 9 and 10: Failure to provide telecommuting as a
reasonable accommodation under the ADA and the Rehabilitation
• Count 11: Termination against public policy under HRS
• Count 12: Race and sex discrimination under Title VII.
• Count 13: Aiding and abetting discrimination under HRS
§ 378- 2(a)(3).
• Count 14: Procedural due process violation under 42
U.S.C. § 1983.
• Count 15: Substantive due process violation under 42
U.S.C. § 1983.
• Count 16: Assumpsit claim for failing to pay wages and
• Count 17: Failure to pay wages under Fair Labor
• Count 18: Conversion claim for failing to pay wages
and disability benefits.
• Count 19: Bad Faith tort claim for failure to properly
investigate and pay workers' compensation benefits.
• Count 20: Tortious interference of contract claim for
interfering with his employment at HDT and interfering with
his workers' compensation benefits.
filed Motions for Partial Summary Judgment on Counts 14 and
18 on November 26, 2018. ECF No. 39; ECF No. 41. Defendants
filed their Motion for Summary Judgment on December 14, 2018.
ECF No. 45. Plaintiff next filed a Counter Motion for Summary
Judgment on Count 13, which also served as his Opposition to
Defendants' Motion for Summary Judgment. ECF No. 65.
Thus, presently before the Court are Defendants' Motion
for Summary Judgment and Plaintiffs Motions for Partial
Summary Judgment on Counts 13, 14, and 18. ECF Nos. 39, 41,
45, 65. The parties timely filed oppositions and replies.
STANDARD OF REVIEW
judgment is proper when there are no genuine issues 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 that 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. at
Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).
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). “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) (citations and
internal quotation marks omitted); see also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)
(“[A] party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or
denials of his pleading, but . . . must set forth specific
facts showing that there is a genuine issue for trial.”
(citation and quotation marks omitted)).
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” (citations omitted)).
because Plaintiff is proceeding pro se, the Court must
construe his complaint liberally and “afford the
petitioner the benefit of any doubt.” Wilhelm v.
Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012). Pro se
plaintiffs must still, however, “present some
‘significant probative evidence tending to support the
complaint'” on a motion for Summary Judgment.
Franklin v. Murphy, 745 F.2d 1221, 1235 (9th Cir.
1984) (quoting Gen. Bus. Sys. v. N. Am. Philips
Corp., 699 F.2d 965, 971 (9th Cir. 1983).
Court addresses Defendants' Motion for Summary Judgment
first, and then ...