United States District Court, D. Hawaii
ROBERT G. STRAUB, Plaintiff,
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
MICHAEL SEABRIGHT CHIEF UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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. 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.
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.
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
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.
12, 2017, Straub filed a “Charge of
Discrimination” with the Hawaii Civil Rights Commission
(the “HCRC”) and the Equal Employment Opportunity
Commission (the “EEOC”),  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.
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.
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). ECF No. 1.
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.
hearing was held on the Motions on August 8, 2019.
STANDARD OF REVIEW
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).
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
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).
Defendants’ Motion for Summary Judgment
Counts One and Two (FMLA interference and retaliation
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.
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
Whether Straub is protected under the FMLA
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
Whether Straub falsified the FMLA leave applications
submitted in 2016
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
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.
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.
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.
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.
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.
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 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.
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.
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],