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Straub v. County of Maui

United States District Court, D. Hawaii

September 24, 2019

ROBERT G. STRAUB, Plaintiff,
v.
COUNTY OF MAUI; DIRECTOR TEENA RASMUSSEN, Defendants.

          ORDER (1) GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT, ECF NO. 93; AND (2) DENYING PLAINTIFF’S COUNTER MOTION FOR PARTIAL SUMMARY JUDGMENT, ECF NO. 101

          J. MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.

         I. INTRODUCTION

         On November 9, 2017, Plaintiff Robert G. Straub (“Straub”) filed a First Amended Complaint (“FAC”) alleging claims against Defendants County of Maui (the “County”) and Teena Rasmussen (“Rasmussen”), Managing Director of the County Office of Economic Development (the “OED”) (collectively, “Defendants”) relating to his termination from his job with the County. ECF No. 8.

         Currently before the court are: (1) Defendants’ Motion for Summary Judgment, ECF No. 93; and (2) Straub’s Counter Motion for Partial Summary Judgment, ECF No. 101 (collectively, the “Motions”). Based on the following, the court: (1) GRANTS in part and DENIES in part Defendants’ Motion for Summary Judgment; and (2) DENIES Straub’s Counter Motion for Partial Summary Judgment.

         II. BACKGROUND

         A. Factual Background[1]

         In January 2011, Mayor Alan Arakawa (the “Mayor”) appointed Straub to work in the Mayor’s Office as an “at will employee, ” and the Mayor’s Chief of Staff, Herman Andaya (“Andaya”) directly supervised Straub until 2014 when Straub was transferred. Def. CSF ¶¶ 1-2, 4; see also Andaya Decl. ¶ 4, ECF No. 94-4. Straub was transferred to the OED in late 2014, and in January 2015, Straub was assigned to the OED’s Business Resource Center (the “BRC”) located at an OED satellite office in the Maui Mall. Def. CSF ¶ 4, 6; Rasmussen Decl. ¶ 3, ECF No. 94-3; Andaya Decl. ¶ 4. From 2015 until 2017 when Straub was terminated, Straub worked at the BRC under the direct supervision of Karen Arakawa (“Arakawa”), and Straub and Arakawa were the only two OED employees at the BRC. Def. CSF ¶ 6; see also Rasmussen Decl. ¶ 5. Rasmussen was the Director of the OED. Rasmussen Decl. ¶ 2.

         While working at the BRC, Straub took three periods of Family and Medical Leave Act (the “FMLA”) leave to care for his wife, Francine Straub (“Francine”), who lives in Arizona.[2] Def. CSF ¶ 19. Straub applied for and was approved to take FMLA leave from November 2 to 13, 2015. Pl. Ex. 1, ECF No. 102-6. As part of the FMLA approval process, Straub submitted a “Certification of Health Care Provider for Family Member’s Serious Health Condition” hand-signed by Dr. Ramit Kahlon (“Kahlon”). See id.; Def. Ex. C, ECF No. 94-14. Straub wrote in the certification that he needed the leave because “wife became partially blind due to M.S. disease. Need to deal with Dr appts [sic] as well as emotional needs due to this set back & physical condition.” ECF No. 94-14 at PageID #1697.

         Straub then applied for and was approved to take FMLA leave from June 22 to July 8, 2016. Pl. Ex. 2, ECF No. 102-7. As part of the FMLA approval process, Straub submitted an Application for Leave dated April 22, 2016, and a “Certification of Health Care Provider for Family Member’s Serious Health Condition” that was purportedly “digitally signed” by Dr. Ahmad Nizam (“Nizam”) on April 12, 2016. Id.; Def. Ex. A, ECF No. 94-12. Straub wrote in the certification that he needed the leave because “[d]ue to blindness and several follow up Doctor appointments, there is a need [for Straub] to be accessible for 2-3 weeks . . . .” ECF No. 94-12, at PageID #1689. In the section to be filled out by the health care provider, it states that “[i]t has been determined that patient has Parkinson’s Disease and should be seen every 6 months at least.” Id. at PageID #1690.

         Next, Straub applied for and was approved to take FMLA leave from January 3 to 20, 2017. Def. Ex. H, ECF No. 94-19. As part of the FMLA approval process, Straub submitted an Application for Leave dated October 24, 2016, id., and a “Certification of Health Care Provider for Family Member’s Serious Health Condition” that was purportedly “digitally signed” by Nizam on October 20, 2016, Pl. Ex. 3, ECF No. 102-8; Def. Ex. B, ECF No. 94-13. Straub described the reason he needed leave: “[c]ontinuous follow up for Parkinson’s Disease at Muhammad Ali Parkinson’s Institute . . . And with Dr [sic] Nizam (neurology Specialist).” ECF No. 94-13 at PageID #1693.

         On January 27, 2017, Rasmussen told Straub that he would be laid off, effective January 31, 2017. Def. CSF ¶ 17; Rasmussen Decl. ¶ 18. Straub was 71 years old at the time. Straub Decl. ¶ 3, ECF No. 102-3. Rasmussen gave Straub’s position, BRC Coordinator, to Ipo Mossman (“Mossman”), who had been working on a special assignment for the County and was 66 years old at the time. Def. CSF ¶¶ 17-18; Straub Decl. ¶ 3; Rasmussen Decl. ¶ 9.

         On July 12, 2017, Straub filed a “Charge of Discrimination” with the Hawaii Civil Rights Commission (the “HCRC”) and the Equal Employment Opportunity Commission (the “EEOC”), [3] alleging discrimination based on retaliation, age, and disability. Pl. CSF ¶ 39; Def. Ex. S, ECF No. 94-30. Straub initiated this lawsuit on October 13, 2017. ECF No. 1.

         After purchasing t-shirts from Straub’s company Ultra-Hawaii since 2011, the County stopped purchasing t-shirts from Ultra Hawaii at some point in 2017 after his termination. See Pl. CSF ¶ 41; Arakawa Dep. at 15:20-18:9, ECF No. 102-18; Kehoe Decl. ¶ 4, ECF No. 94-7.

         B. Procedural History

         Straub filed the FAC on November 9, 2017 alleging the following claims for relief: (1) Count One (violation of the FMLA, 29 U.S.C. § 2615(a)(1) and (2), based on interference and retaliation arising from his termination); (2) Count Two (violation of the FMLA, 29 U.S.C. § 2615(a)(1) and (2), based on interference and retaliation arising from discontinuation of purchasing t-shirts from Straub’s business); (3) Count Three (violation of the Americans with Disabilities Act (the “ADA”), 42 U.S.C. § 12122(b)(4), for discrimination based on association with a disabled person); and (4) Count Four (violation of the Age Discrimination in Employment Act (the “ADEA”), 29 U.S.C. § 623(a)(1) based on age discrimination) and (violation of Hawaii Revised Statutes (“HRS”) § 378-2 based on age discrimination[4]). ECF No. 1.

         On July 15, 2019, Defendants filed their Motion for Summary Judgment. ECF No. 93. On July 22, 2019, Straub filed (1) his Opposition to Defendant’s Motion for Summary Judgment and (2) his Counter Motion for Partial Summary Judgment. ECF No. 101. On August 2, 2019, Defendants filed (1) their Reply in support of their Motion for Summary Judgment and (2) their Opposition to Straub’s Counter Motion for Partial Summary Judgment. ECF No. 106. On August 5, 2019, Straub filed his Reply in support of his Counter Motion for Partial Summary Judgment. ECF No. 107.

         A hearing was held on the Motions on August 8, 2019.

         III. STANDARD OF REVIEW

         Summary judgment is proper when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). Rule 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).

         The moving party “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 Corp., 475 U.S. 574, 586-87 (1986) (citation and internal quotation marks omitted).

         “An 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 v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). When considering the evidence on a motion for summary judgment, the court must draw all reasonable inferences in the light most favorable to the nonmoving party. Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1184 (9th Cir. 2016).

         IV. DISCUSSION

         A. Defendants’ Motion for Summary Judgment

         1. Counts One and Two (FMLA interference and retaliation claims)

         At the August 8, 2019 hearing, Straub clarified that: (1) in Count One of the FAC, he brings only an FMLA interference claim based on his termination; and (2) in Count Two, he brings only an FMLA retaliation claim based on the County discontinuing purchasing t-shirts from Straub’s business, Ultra Hawaii.

         Under Ninth Circuit law, FMLA interference claims are brought pursuant to 29 U.S.C. § 2615(a)(1), which only applies to “employees who simply take FMLA leave and as a consequence are subjected to unlawful actions by the employer.” Xin Liu v. Amway Corp., 347 F.3d 1125, 1133 n.7, 1135-36 (9th Cir. 2003); see also Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112, 1124 (9th Cir. 2001); Straub v. Cty. of Maui, 2018 WL 762383, at *2 (D. Haw. Feb. 7, 2018). Further, FMLA retaliation claims are brought pursuant to 29 U.S.C. § 2615(a)(2), which only applies to “employees who oppose employer practices made unlawful by FMLA.” Xin Liu, 347 F.3d at 1133 n.7.[5]

         a. Whether Straub is protected under the FMLA

         Defendants argue that summary judgment should be granted on both the FMLA interference claim and the FMLA retaliation claim because Straub falsified his FMLA leave applications submitted in 2016. See ECF No. 93-1 at PageID #1622-23, 1634.

         i. Whether Straub falsified the FMLA leave applications submitted in 2016

         First, the court considers whether Straub falsified his two applications for FMLA leave submitted in 2016 (Defendants do not challenge Straub’s application for FMLA leave submitted in 2015)-and finds that there is no genuine dispute that Straub (or someone on his behalf) falsified those applications.6

         There are three relevant FMLA leave applications. The first FMLA leave application was submitted by Straub in 2015 for leave taken from November 2 to 13, 2015 (the “2015 Certification”). ECF No. 102-6. The 2015 Certification was filled out by hand (not typed) and included the handwritten signatures of Straub (dated November 2, 2015) and Kahlon (dated November 3, 2015). See ECF No. 94-14. Defendants do not challenge the authenticity of this certification. The second FMLA leave application was submitted by Straub in 2016 for leave taken from June 22 to July 8, 2016. ECF No. 94-12. This certification was typed except for Straub’s handwritten signature (dated April 15, 2016). See id. This certification was purportedly signed by Nizam on April 12, 2016-on the “Signature of Health Care Provider” line, the following is typed: “Digitally signed by Dr. Ahmad Nizam.” ECF No. 94-12, at PageID #1692. The third FMLA leave application was submitted by Straub in 2016 for leave taken from January 3 to 20, 2017. See ECF No. 94-13. This certification was also typed except for Straub’s handwritten signature (dated October 20, 2016). See Id . This certification is also purportedly signed by Nizam on October 20, 2016-on the “Signature of Health Care Provider” line, the following is typed: “Digitally signed by Dr. Ahmad Nizam.” Id. at PageID #1696. Defendants argue that the two leave applications Straub submitted in 2016 (collectively, the “2016 Certifications”) were falsified. ECF No. 93-1 at PageID #1601.

         In his declaration, Nizam says that he currently practices at the Core Institute, that Francine was his patient from September 2015 to April 2016, and that he has not treated Francine since April 2016. Nizam Decl. ¶¶ 5, 6, 13, ECF No. 94-1. In his declaration, Nizam also says that he “did not complete, authorize, or sign, digitally or otherwise, any FMLA paperwork for Robert Straub or Francine Straub, ” and that he “never communicated with Robert Straub via email.” Id. ¶¶ 9, 12. Nizam also says that, “[m]y office keeps digital records of any FMLA paperwork I have completed. My patient records do not contain copies of any FMLA paperwork for Robert Straub or Francine Straub filled [sic] by me.” Id. ¶ 9. Nizam also says that, “[b]ased on a review of The Core Institute’s medical records for Francine Straub, she did not return to The Core Institute until November 29, 2017, and was seen by Dr. Vardges Vandian [(“Vandian”)].” Id. ¶ 13.

         In his deposition, Nizam testified that, when completing FMLA paperwork, he uses a handwritten signature, not a signature stamp. Nizam Dep. at 7:4-9, ECF No. 102-21.

         Francine’s Core Institute medical records from her November 29, 2017 visit with Vandian state that “[Francine’s] last visit with Dr [sic] Nizam was in March of 2016.” ECF No. 94-15 at PageID #1701.

         In Francine’s deposition, she testified that she had no appointments with Nizam during Straub’s FMLA leave periods taken in June and July 2016 and in January 2017. See Francine Dep. at 62:10-12, 78:8-20, ECF No. 94-25.

         In his declaration, Straub says that “[he] received all signed FMLA certification forms from [his] wife’s doctors and submitted those forms without any alterations.” Straub Decl. ¶ 43; see also Pl. CSF ¶ 17. And in his deposition, Straub testified that he received the certifications from Nizam via email. Straub Dep. at 73:21-74:3, 83:23-84:1, ECF No. 102-22; Pl. CSF ¶ 17. Straub does not provide any documentation of these emails, and he testified in his deposition that he deleted the emails. Straub Dep. at 74:4-13, 84:2-8. Straub also says in his declaration that “[he does] not possess the required knowledge nor technical skill to electronically ex. [sic] documents sent to me in connection with my request for FMLA leave. The only method for altering these documents available to me would be a handwritten alteration, which I used in my 2015 FMLA leave request.” Straub Decl. ¶ 42. Further, Straub says that “[i]f the dates on the FMLA certification forms were changed, it is my belief that Daniels[7] or someone else from the County changed the dates on the FMLA certification forms, since I am unable to electronically alter them.” Straub Decl. ¶ 44.

         At the August 8, 2019 hearing (and for the first time), Straub provided a different explanation for the false 2016 Certifications-that Nizam moved from one Core Institute location (Sun City West) to another (Phoenix), and that this move resulted in the Core Institute’s staff sending a false certification. The only evidence Straub presents to support his claims are two addresses: (1) the addresses listed for Nizam on the 2016 Certifications (“14520 W Granite Valley Dr/Sun City West AZ 85375”); and (2) the business address that Nizam gave at the deposition (“The Core Institute . . . 18444 North 25th Avenue, Unit 210, Phoenix, Arizona 85023”). ECF Nos. 94-12, 94-13; ECF No. 102-21 at PageID #2206.

         When evaluating facts at the summary judgment stage:

[F]acts must be viewed in the light most favorable to the nonmoving party only if there is a “genuine” dispute as to those facts. As we have emphasized, when the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no ‘genuine issue for trial.’ The mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact. When opposing parties tell two different stories, one of which is blatantly contradicted by the record, so that no reasonable jury could believe it, a court should not adopt that version of the facts for purposes of ruling on a motion for summary judgment.

Scott v. Harris, 550 U.S. 372, 380 (2007) (citations, internal editorial marks, and emphases omitted). See also Bohmker v. Oregon, 903 F.3d 1029, 1044 (9th Cir. 2018) (finding that a declaration “wholly lacking” in factual support does not create a genuine issue of material fact). Because both of Straub’s versions of events are “blatantly contradicted by the record, so that no reasonable jury could believe [them], ...


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