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Bach v. Community Ties of America, Inc.

United States District Court, D. Hawaii

November 15, 2019

SONIA B. BACH, Plaintiff,



         Before the Court is Defendant Community Ties of America, Inc.'s (“Defendant” and “CTA”) Motion for Summary Judgment (“Motion”), filed on June 26, 2019. [Dkt. no. 37.] Plaintiff Sonia B. Bach (“Plaintiff”) filed her memorandum in opposition to the Motion on July 19, 2019, and Defendant filed its reply on July 26, 2019. [Dkt. nos. 42, 43.] This matter came on for hearing on August 2, 2019. On August 12, 2019, this Court issued an entering order outlining the Court's decision on the Motion. [Dkt. no. 45.] The instant Order supersedes that entering order. Defendant's Motion is hereby denied as moot as to the portion of Count I asserting discrimination based on age because that claim is dismissed, and the Motion is granted in all other respects.


         I. Factual Background

         The majority of the facts in this case are not in dispute. Defendant conducts certification and licensing activities in the State of Hawai`i for Community Care Foster Family Homes (“CCFFHs”) and Case Management Agencies (“CMAs” and collectively “Providers”).[1] Defendant hired Plaintiff for the full-time position of Compliance Manager (“CM”) in 2010. [Def.'s Concise Statement of Facts in Supp. of Motion for Summary Judgment (“CSOF”), filed 6/26/19 (dkt. no. 36), at ¶¶ 1-4; Pltf.'s concise statement of facts in response to CSOF (“Responsive CSOF”), filed 7/19/19 (dkt. no. 41), at pg. 2.[2] Plaintiff's role as a CM was to evaluate the Providers' compliance with Hawai`i regulations. [CSOF at ¶ 5.] Plaintiff received Defendant's Employee Manual in January 2012, which prohibits, inter alia: unsatisfactory or careless work; the use of obscene or abusive language toward any supervisor, employee, or customer; and rudeness toward any customer. [Id. at ¶ 7.]

         Full-time CMs such as Plaintiff were expected to work one day a week at Defendant's office or their home-offices, and four days in the field reviewing Providers, with two to three on-site reviews daily. CMs must complete their monthly quota of on-site reviews but could carry over up to four reviews in a month. [Id. at ¶¶ 9-10.] ¶ 2011, Plaintiff received an improvement plan addressing a No. of issues, including: 1) not meeting productivity/quality expectations; 2) negative performance ratings for timeliness/quality; and 3) negative communications towards coworkers. [Id. at ¶ 14.]

         In October 2012, Plaintiff fell and injured herself, returning full-time from leave in December 2012. [Id. at ¶ 15.] Plaintiff received ongoing medical treatment for injuries related to her hand, shoulder, ankle, and hip. Plaintiff's impairments related to her ability to walk, lift, write, and drive precluded her from consistently performing work requiring more than thirty minutes of driving. [CSOF at ¶¶ 16-17.]

         In mid-2013 and December 2013, Plaintiff complained to Defendant and the United States Department of Labor (“DOL”) that Defendant had not correctly deposited funds into her 401(k) account. As a result of Plaintiff's complaints, the DOL initiated an investigation and an April through June 2014 audit of Defendant's records. [Id. at ¶¶ 51-52.]

         In July of 2013, Angel England became Defendant's Hawai`i Operations Manager. [Id. at ¶ 3.] At that time, she was aware of Plaintiff's performance history. Ms. England received additional complaints from Providers and coworkers that Plaintiff's communications were harsh and/or impolite. Fellow CMs also observed Plaintiff's reports were incorrect and missing relevant information. In 2013, Ms. England gave Plaintiff a negative performance evaluation rating for behavior and work quality. In 2014, Ms. England observed that Plaintiff's interpersonal communication was improving but she still received anonymous Provider complaints for Plaintiff's on-site communications. In December 2014, Ms. England gave Plaintiff a negative rating for interpersonal relationships on her performance evaluation. [Id. at ¶¶ 18-22.]

         In April 2015, Plaintiff took leave for surgery, and on April 28, 2015, she emailed Ms. England, stating “‘I have no idea when I can return to work.'” [CSOF at ¶¶ 23-24 (some citations omitted) (quoting CSOF, Decl. of Angel England (“England Decl.”), Exh. 17 (email from Plaintiff)).] On May 1, 2015, Defendant notified Plaintiff she would be terminated if she did not return to work by May 11, 2015 when her accrued paid leave would be exhausted. [Id. at ¶¶ 25.] Plaintiff responded that termination on that basis would be illegal and that Defendant should consult its attorneys. [Responsive CSOF, Decl. of Sonia B. Bach (“Bach Decl.”) at ¶ 7.] On May 6 and 8, 2015, Defendant informed Plaintiff it would not terminate her. [CSOF at ¶ 26.] Over the next five months, Defendant repeatedly inquired with Plaintiff as to whether, and when she could return to work, with or without reasonable accommodation. The parties discussed potential accommodations during Plaintiff's leave, including limiting her driving to forty-five minutes, per her physician's note, but Plaintiff disclaimed any need for accommodation. [Id. at ¶¶ 27-28.] On September 8, 2015, Plaintiff emailed Defendant's President and co-owner Ronald Lee saying “‘[t]here is really no adjustment to be made to get me working . . . .'” [Id. at ¶ 29 (alterations in original) (citing Decl. of Ronald Lee (“Lee Decl.”) at ¶¶ 52-53; Exh. 48 (email from Plaintiff to Ronald Lee)).]

         After Ms. England took over Plaintiff's workload in 2015, she discovered Plaintiff had been consistently formatting her reports incorrectly, including not basing the reports on the applicable regulations, and incorrectly marking a Provider deficient. At an unspecified date, three Providers requested a different CM, complaining of Plaintiff's demanding, rude, and demeaning communications. [CSOF at ¶¶ 30-31.] Other CMs visiting Plaintiff's CCFFHs also reported Provider complaints about Plaintiff's behavior, while four coworkers complained about her as well. Plaintiff was the only CM that Ms. England had Providers request to not conduct their evaluation. Ms. England believed that Plaintiff's performance was unsatisfactory and noncompliant with company policy due to these complaints. [Id. at ¶¶ 32-33.]

         Ms. England, in consultation with Mr. Lee and Matthew Ockerman, [3] prepared a performance evaluation and probationary corrective action plan for Plaintiff. Ms. England issued them to Plaintiff upon Plaintiff's return to work on September 21, 2015. Plaintiff was informed she could be terminated if her performance did not improve. [Id. at ¶¶ 34-36.] Plaintiff's performance issues continued when she returned, which included: her failure to record Provider visit dates as instructed; improper citation of non-deficiencies in her reviews; incorrectly marking three Providers noncompliant without explanation; accepting incomplete corrective action plans; and failing to timely complete her reviews. [England Decl. at ¶¶ 53-54, 73, 150-51, 160-61, 164-75.] Thirteen of Plaintiff's thirty-three Providers commented negatively on Plaintiff's performance or behavior. [CSOF at ¶ 37.]

         After Plaintiff's probationary period ended, Ms. England determined that Defendant should terminate Plaintiff due to her continued errors, poor production, and failure to meet quality standards. [Id. at ¶¶ 37-38.] However, before Ms. England acted on her decision, she received complaints from two additional Providers regarding Plaintiff. [Id. at ¶ 39.] Ms. England investigated the complaints and determined that Plaintiff mishandled a Provider-related complaint, and engaged in misconduct that resulted in a CCFFH client's healthcare agents revoking their healthcare agent status, leaving the client without a “surrogate healthcare agent.” [England Decl. at ¶ 188.] In January of 2016, three more Providers complained about Plaintiff's conduct, two of whom asked that Defendant not assign Plaintiff to review their homes again. [Id. at ¶¶ 193-98.]

         Ms. England began drafting Plaintiff's termination letter in the last week of January 2016. On February 3, 2016, Ms. England scheduled a termination meeting with Plaintiff for February 11, 2016. On February 5, 2016, Plaintiff emailed Ms. England a physician's note limiting her walking or driving to forty consecutive minutes. At that time, Plaintiff lived in Kaneohe, and Defendant's place of business was also in Kaneohe. Only two percent of Providers were within a reasonable guaranteed driving time of forty minutes or less. Assigning Plaintiff to only that two percent of Providers would have been equivalent to less than a week of full-time work per month. [England Decl. at ¶¶ 57-67.] On February 5, 2016, Ms. England called Plaintiff. During that phone call, Plaintiff told Ms. England that she could not complete two assignments in Wahiawa but could complete her other assignments. Ms. England reassigned the Wahiawa Providers. Ms. England informed Plaintiff that Defendant would not be able to guarantee a forty-minute time limit on driving. Plaintiff responded that it was not an issue because she could leave the highway if necessary. [CSOF at ¶¶ 41-45.]

         At the meeting on February 11, 2016, Ms. England terminated Plaintiff for her unprofessional behavior, continuous citing of Providers for issues not reviewed by Defendant, and inadequate productivity. [Id. at ¶ 46.] Defendant's paragraph 46 is the only paragraph in the CSOF contested by Plaintiff. Even so, Plaintiff does not specifically dispute the facts in paragraph 46. Plaintiff notes that she was terminated at the February 11, 2016 meeting after she had requested accommodations in early February and submitted a doctor's note on February 5, 2016 that limited driving as part of that accommodation. [Responsive CSOF at ¶ 46.] Therefore, the parties are in substantial agreement regarding the facts surrounding Plaintiff's termination. Defendant has not offered any facts to contest Plaintiff's asserted timeline that her termination occurred after her accommodation request was received by Defendant. [CSOF at ¶¶ 44-46.]

         At the time of Plaintiff's termination, Defendant's Hawai`i Office employed eight staff, including Ms. England. One of those employees, a thirty-eight-year-old administrative assistant was terminated for excessive absences on the same day as Plaintiff. [Id. at ¶ 47.] Defendant's other CMs were ages: thirty-seven, sixty-two, sixty-four, sixty-five, and seventy. Shortly after Plaintiff's termination, Defendant promoted a then-part-time sixty-five-year-old CM to full-time CM to take over Plaintiff's position. [Id. at ¶¶ 48-49.] Ms. England has previously granted three employees' accommodation requests and has never received a request that precluded performance of job duties except for Plaintiff's. Neither Ms. England, Mr. Lee, nor Mr. Ockerman stated that Plaintiff was terminated, or expressed animus against Plaintiff, because of her age, disability, request for an accommodation, or complaint about a violation of law. [Id. at ¶ 53.]

         II. Procedural Background

         On June 21, 2017, Plaintiff filed her Complaint in the Circuit Court of the First Circuit, State of Hawai`i. [Notice of Removal of State Court Action to Federal Court (“Notice of Removal”), filed 3/16/18 (dkt. no. 1), Decl. of Joseph A. Ernst, Exh. A (Complaint).] Plaintiff alleges she filed a Charge of Discrimination with the Hawai`i Civil Rights Commission (“HCRC”), alleging discrimination due to age, disability, and retaliation. Plaintiff alleges that, on March 23, 2017, the HCRC issued a Notice of Dismissal and Right to Sue letter. [Complaint at ¶¶ 6-8.]

         On March 16, 2018, Defendant removed the action to this district court based on diversity jurisdiction. [Notice of Removal at ¶¶ 3-4.] Count I of the Complaint alleges a violation of Haw. Rev. Stat. § 378-2(a)(1) and (3) because Plaintiff was wrongfully terminated due to discrimination based on her age and disability. [Complaint at ¶¶ 11-12.] Count II alleges retaliation against Plaintiff for opposing the alleged discrimination based on age and disability in violation of § 378-2(a)(2). [Id. at ¶ 17.] Count III alleges a violation of the Hawai`i Whistleblowers' Protection Act (“HWPA”), Haw. Rev. Stat. § 378-62, for discrimination due to Plaintiff's reporting of a violation of law. [Id. at ¶ 19.] Plaintiff has since clarified that she is not asserting an aiding and abetting claim under § 378-2(a)(3). [Mem. in Opp. at 3.]

         Plaintiff prays for the following relief: reinstatement of her position with Defendant; general and special damages, including back pay, front pay, and other expenses; punitive damages; attorney's fees, costs, and interest, including prejudgment interest; and any other appropriate relief. [Complaint at pgs. 6-7.]


         I. Withdrawn Claim

         Plaintiff admits there is insufficient evidence to support a claim for age discrimination. [Mem. in Opp. at 3, ] Therefore, Plaintiff's claim in Count I alleging she was discriminated against on the basis of age is dismissed. See Fed.R.Civ.P. 41(a)(2) (“Except as provided in Rule 41(a)(1), an action may be dismissed at the plaintiff's request only by court order, on terms that the court considers proper.”). In light of the dismissal of Plaintiff's age discrimination claim, the Motion is denied as moot as to the portion of Count I alleging age discrimination.

         II. Haw. Rev. Stat. § 378-2 Disability Discrimination Claim

         A. Plaintiff's Allegations of Discrimination

         Count I of the Complaint alleges Defendant discriminated against Plaintiff on the basis of disability, in violation of Haw. Rev. Stat. § 378-2(a)(1)(A). [Complaint at ¶ 11.] She states that, after falling and injuring herself in October 2012, she had ongoing medical impairments in her hand, shoulder, ankle, and hip. [Bach Decl. at ¶ 3.] Plaintiff claims she was disabled and unable to work between April 17, 2015 and September 2015. [Id. at ¶ 5.] The allegations of discrimination arise from Plaintiff's “early February 2016” request for a reasonable accommodation for her disability, the accommodation being assignment to “work assignments closer to her home and the company offices so she did not need to walk as much as before.” [Complaint at ¶ 9.C.] Plaintiff alleges Defendant failed to accommodate her request and that “[t]he actions of Defendant's agents and employees were in violation of Hawaii Revised Statutes § 378-2[(a)](1) . . . in that Plaintiff was wrongfully terminated, and suffered discrimination in terms, conditions, and privileges of [her] employment due to her age and a disability.” [Id. at ¶ 11.]

         B. Standard for § 378-2(a)(1) Claims at Summary Judgment

         Section 378-2(a)(1)(A) makes it an unlawful discriminatory practice “[f]or any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment” because of a person's disability. “[B]ecause the definitions of disability in the ADA and HRS § 378-2 are substantially identical, the Hawaii Supreme Court has expressly adopted ‘the [ADA] analysis for establishing a prima facie case of disability discrimination under HRS § 378-2, '” “and looks ‘to the interpretations of analogous federal laws by the federal courts for guidance.' ” Thorn v. BAE Sys. Haw. Shipyards, Inc.,586 ...

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