Hawaii Employment Law Cases April 22, 2018 to June 16, 2018 – Jeffrey S. Harris

U.S. Supreme Court

Arbitration agreements barring class claims may be enforceable.  Employees and employers may agree any disputes between them will be resolved though one-on-one arbitration.  Employees need not always be allowed to bring their claims in class or collective actions, even though they agreed otherwise with their employers.  Agreements to arbitrate may be invalidated only by reference to generally applicable contract defenses, such as fraud, duress or unconscionability.  Epic Systems Corp. v. Lewis, 200 L. Ed. 2d 889, 2018 U.S. LEXIS 3086 (May 21, 2018).

U.S. Ninth Circuit Court of Appeals

District Court properly granted summary judgment against disability discrimination claim. Former employee failed to raise genuine dispute of fact whether he suffered from shy bladder syndrome.  Note saying former employee had the condition from doctor who never conducted a medical examination, did not review his records and only wrote down what he said was insufficient.  As a lay witness former employee was not competent to testify about the cause of his inability to urinate being a medical condition.  Even if former employee raised factual dispute about having a medical condition, he provided no documentation allowing employee to determine what kind of alternate drug testing would be appropriate and therefore was responsible for breakdown in the interactive process.  Heit v. Aerotek, Inc., 2018 U.S. App. LEXIS 16016 (9th Cir. June 14, 2018).

District Court properly dismissed federal rail safety claim, because former employee failed to disclose the claim in his bankruptcy until after the bankruptcy court closed the case and dismissed the bankruptcy trustee, resulting in abandonment of any un-administered property including his undisclosed claim.  Clift v. BNSF Ry. Co., 2018 U.S. App. 16017 (9th Cir. June 14, 2018).

District Court properly stayed benefit trustees’ claim for plan contributions from employer, after granting employer’s motion to compel arbitration of union’s claim for dues and assessments.  Regional Local Union No. 846, ALF-CIO v. Gulf Coast Rebar, Inc., 2018 U.S. App. LEXIS 15780 (9th Cir. June 12, 2018).

District Court properly granted summary judgment against disparate treatment claim, because loss of performance evaluation did not materially affect teacher’s employment and investigation when she was allowed to work and no action was taken as a result of the investigation were not adverse employment actions and no similarly situated employee of a different race or gender was treated more favorably.  District Court properly granted summary judgment against student harassment claim because school investigated each incident and where the investigation warranted took corrective measures against the students.  Campbell v. Hawaii Dep’t of Educ., 2018 U.S. App. LEXIS 15631 (9th Cir. June 11, 2018).

Restrictions on secondary picketing are constitutional.  Section 8(b)(4)(ii)(B) constitutionally restricts unions from engaging in secondary picketing at governmental facilities.  NLRB v. Int’l Ass’n of Bridge, Structural, Ornamental and Reinforcing Ironworkers Union, Local 433, 2018 U.S. App. LEXIS 15502 (9th Cir. June 8, 2018).

No retaliation when time gap, discrimination when stray remarks or pretext when reasonable performance demands.  District Court properly granted summary judgment against retaliation claim, because there was 12 year gap between protected activity by former employee and her termination.  District Court properly granted summary judgment against age discrimination claim, because supervisor’s remarks linking former employee’s performance to her age were stray remarks.  Because former employee provided no evidence performance objectives she did not meet were unreasonable, she failed to raise a genuine issue of material fact whether the reason for terminating her was pretextual.  Moorehead v. Hi-Health Supermart Corp., 2018 U.S. App. LEXIS 15405 (9th Cir. June 7, 2018).

Deference owed arbitrator’s interpretation of collective bargaining agreement.  District Court properly denied hospital’s motion to vacate arbitration award.  Court owed deference to arbitrator’s interpretation of collective bargaining agreement, when arbitrator decided employer’s policy of immediate termination for patient confidentiality did not necessarily supersede just cause requirement.  Mercy Med. Ctr. v. Or. Nurses Ass’n, 2018 U.S. App. LEXIS 15255 (9th Cir. June 6, 2018).

Room and board coverage for stays at licensed inpatient residential treatment must be no more restrictive than for stays at skilled nursing facilities.  Mental Health Parity Act of 2008 required health plan coverage of room and board for stays at licensed inpatient residential treatment facilities to be no more restrictive than for stays at skilled nursing facilities. Danny P. v. Catholic Health Initiatives, 2018 U.S. App. LEXIS 15213 (9th Cir. June 6, 2018).

Purchaser may be subject to withdrawal liability based on constructive notice.  Purchaser was liable for unpaid withdrawal liability of predecessor because constructive notice of withdrawal liability was sufficient to trigger successor withdrawal liability.  Purchaser had constructive notice because a reasonable purchaser would have discovered withdrawal liability, in prior similar acquisitions purchaser required its agents to determine if it could incur withdrawal liability, the purchase agreement plainly informed purchaser hotel employees were unionized and hotel had contributed to a multiemployer pension plan and plan’s annual funding notices which indicated a state of underfunding were publicly available on the benefit plan administrator and hotel union’s websites, regardless of the seller’s conduct and purchasers receipt of incorrect legal advice.  Heavenly Hana LLC v. Hotel Union & Hotel Indus. Of Hawaii Pension Plan, 2018 U.S. App. LEXIS 14796 (9th Cir. June 1, 2018).

Selection for layoff based on no union representation barred disability claim.  District Court properly granted summary judgment against age and associational disability claims, because former employee failed to raise a genuine issue as to whether reason she was selected for an overhead cutting layoff were pretext.  Selection of employees not represented by a union instead of ones who were was a meaningful difference.  The employer hiring a younger person to fill a position the former employee later applied for was insufficient.  Remark by human resource representative was not related to supervisor’s decision to select the employee for layoff.  Dugas v. Lockheed Martin Corp., 2018 U.S. App. LEXIS 14369 (9th Cir. May 31, 2018).

Option to retire shares early and discretionary eligibility exempted equity growth plan from ERISA.  ERISA did not cover company’s employee equity growth plan, because primary purpose of the plan was not to provide retirement benefits or deferred income  Participants were allowed to retire their shares prior to completing 20 years of service or retirement and selection of participants was a board of director’s discretion.  Miller v. Olsen, 2018 U.S. App. LEXIS 14372 (9th Cir. May 31, 2018).

Disparate treatment by unique administrative leave without preliminary investigation of anonymous complaint and no contact order not limited to subject.  Harassment based on improper management of investigation.  District Court improperly granted summary judgment against former commanding police officer’s disparate treatment claim, because the department placed no other employee accused of the same conduct on administrative leave without a preliminary investigation, based on an anonymous complaint, and subjected to a no contact order without limiting to the subject of the investigation.  District Court improperly granted summary judgment against officer’s harassment claim, because improper management of the investigation of the complaint and aftermath caused her to lose credibility at work and substantially interfered with her job.  District Court properly granted summary judgment against constructive discharge claim, because conduct was not sufficiently severe.  Franks v. City of Santa Ana, 2018 U.S. App. LEXIS 14247 (9th Cir. May 30, 2018).

Court must consider likelihood of success when deciding motion for preliminary injunction lifting suspension and ordering reinstatement.  District Court improperly denied preliminary injunction to lift tenured professor’s suspension from teaching and order his reinstatement.  No per se rule foreclosed the possibility that reputational damage, lost opportunity and emotional distress may represent irreparable harm.  District Court did not address professor’s likelihood of success on the merits of claim his suspension pending results of an internal investigation of a sexual harassment complaint by a former student was discrimination based on age.  Court of Appeals remanded for consideration of that factor.  Heineke v. Santa Clara Univ., 2018 U.S. App. LEXIS 13906 (9th Cir. May 25, 2018).

Overtime claim must allege worked more than 40 hours in a given workweek.  District Court properly dismissed employee’s minimum wage and overtime claims, because he failed to allege facts sufficient to state plausible claims for unpaid wages.  Complaint contained no allegation employee worked more than forty hours in a given workweek without being compensated for the overtime hours or was not paid minimum wages.  Carter v. Rasier-CA, LLC, 2018 U.S. App. LEXIS 13733 (9th Cir. May 24, 2018).

Failure to engage in interactive process verdict sustained because jury found possible accommodations.  District Court properly denied motion to set aside verdict based on failure to engage in interactive process, because the jury identified two reasonable accommodations the employer could have provided had the process continued and there was evidence the human resource manager did not research to see if there were any available accommodations the company could provide.  Perona v. Time Warner Cable, Inc., 2018 U.S. App. LEXIS 13730 (9th Cir. May 24, 2018).

No individual liability under ADEA.  District Court properly granted summary judgment on ADEA claim, because former employee failed to raise triable dispute whether his termination was motivated by a discriminatory purpose.  District Court properly granted summary judgment alleging individual defendants conspired to violate ADEA, because ADEA does not impose individual liability on employees.  Johnston v. City of Red Bluff, 2018 U.S. App. LEXIS 13545 (9th Cir. May 23, 2018).

16 month accommodation, employee dishonesty and physical activity inconsistent with restrictions defeated workplace injury discrimination claim.  Administrative Review Board did not abuse its discretion dismissing complaint employer terminated employee for reporting workplace injury, because employer accommodated employee for 16 months after injury occurred, managers credibly testified the employee had been dishonest and credible evidence established employee engaged in physical activities inconsistent with his medical restrictions.  Powers v. U.S. Dept. of Labor, 2018 U.S. App. LEXIS 13297 (9th Cir. May 22, 2018).

Failure to exhaust, statute of limitations and no causal connection defeated claims.  District Court properly granted summary judgment against discrimination, hostile work environment and retaliation claims arising from former employee’s layoff, because she failed to exhaust administrative remedies.  District Court properly granted summary judgment against retaliation claim arising from former employee’s job search, because the claim was barred by the applicable statute of limitations.  District Court properly granted summary judgment against retaliation claim arising from job search within the statute of limitations, because she failed to raise a genuine dispute of material facts as to whether there was a causal connection between any protected activity and adverse action.  Liu v. Regents of Univ. of Cal., 2018 U.S. App. LEXIS 13164 (9th Cir. May 21, 2018).

Being present was essential function of supervisor’s job.  District Court properly granted summary judgment against ADA disparate treatment, failure to accommodate and harassment claims.  Employer gave legitimate, non-discriminatory reason for placement in a different position and delay of career path; employee’s former position was eliminated in its previous form as a cost cutting measure with its functions absorbed by another employee.  The employee’s extensive absences meant she could not perform an essential function of a supervisor’s job, being present at work to supervise.  The delay of career path benefitted the employee because it gave her a chance to prove her performance met the required standards and when she did she was compensated retroactively.  There was insufficient evidence of harassment and since all the leave requested and other demands by the employee were met, there was no evidence of failure to accommodate.  District Court properly granted summary judgment against FMLA claim, because her old job no longer existed for reasons unrelated to her FMLA leave and she was unable to perform an essential function of the old position: regular attendance.  Ogden v. Pub. Util. Dist. No. 2 of Grant Cty., 2018 U.S. App. LEXIS 12671 (9th Cir. May 16, 2018).

Expressing concern about isolated incident may be protected.  District Court improperly dismissed retaliation claim, because former employee alleged she opposed conduct that could reasonably be perceived as violating Title VII, even though she conveyed her discomfort with an isolated incident of harassment.  Archuleta v. Corr. Corp. of Am., 2018 U.S. App. LEXIS 12678 (9th Cir. May 16, 2018).

ADA plaintiff must prove there was a reasonable accommodation, at trial.  To prevail on an ADA claim at trial, an employee has the burden of proving (a) the employer failed to participate in good faith in the interactive process and (b) there existed a reasonable accommodation that would have enabled him to perform the essential functions of an available job.  Snapp v. United Transp. Union, 2018 U.S. App. LEXIS 12336 (9th Cir. May 11, 2018).

Criticisms were not adverse action.  District Court properly granted summary judgment on discrimination claim arising from employment and termination, because former employee failed to raise genuine issue of material fact as to whether any criticisms received were adverse employment actions and whether any similarly situated employees were treated more favorably with respect to termination as contract service providers.  District Court properly granted summary judgment on discrimination claim relating to failure to apply for position, because former employee failed to raise genuine issue of material fact as to how it provided information for the job opening was pretext.  District Court properly granted summary judgment on hostile work environment claim, because employee failed to raise genuine issue of material fact as to whether any harassing conduct was sufficiently severe or frequent to alter conditions of her employment.  District Court properly granted summary judgment on retaliation claim because employee failed to raise genuine issue of material fact as to whether she engaged in any protected activity.  Nguyen v. Esper, 2018 U.S. App. LEXIS 12354 (9th Cir. May 11, 2018).

Class certification may rely on inadmissible evidence.  District Court abused its discretion when it denied class certification premised on refusal to consider evidence at the preliminary stage that would be inadmissible at trail, denied certification based on one proposed class representative not being a member of the class because other proposed representatives were adequate and rejected proposed class counsel without indicating what legal standard it relied on and made the decision prematurely.  Sali v. Corona Reg’l Med. Ctr., 2018 U.S. App. LEXIS 11497 (9th Cir. May 3, 2018).

EEOC did not violate ADA by negligently delaying fulfilling accommodation requests.  District Court properly granted summary judgment against failure to accommodate claim, because employee failed to show delays in fulfilling her accommodations were the result of anything other than negligence and giving employee access to transcripts accommodated her request for assistance with taking notes during hearings.  District Court properly granted summary judgment against retaliation claim, because employee showed no retaliatory motive by the employees responsible for fulfilling her requests.   Mulligan v. Lipnic, 2018 U.S. App. LEXIS 11006 (9th Cir. April 30, 2018).

90-day statute of limitations began when plaintiff received right to sue letter.  Claims could not be based on discrete acts occurring after employee filed charge.  District Court improperly granted summary judgment based on untimely filing; the 90-day period for filing a civil action began 90 days after employee received the right to sue notice, not 90 days after she became eligible to receive the notice. The employee could base her Title VII claims on alleged acts occurring after she filed her administrative charge, to the extent the acts were part of a single hostile work environment.  District Court properly granted summary judgment as to claims based on discrete acts occurring after she filed her charge.  Scott v. Gino Morena Enters., LLC, 888 F.3d 1101, 2018 U.S. App. LEXIS 10762 (9th Cir. April 27, 2018).

Providing light duty for less than 40 hours and open positions to more employees with more seniority under collective bargaining agreement did not violate ADA.  District Court properly granted summary judgment on ADA discrimination and retaliation claims.  Employee presented no evidence employer put her on light duty status as pretext for discrimination.  She presented no evidence employer’s explanation for failure to provide her 40 hours of work per week – the requirement of the collective bargaining agreement to first ensure employees not on light duty receive 40 hours – was pretext for discrimination, and presented no evidence similarly situated nondisabled employees on light duty status worked 40 hours per week.  She presented no evidence the employer’s explanation for not providing her other jobs – that the collective bargaining agreement required that those jobs be awarded to more senior employees - was pretextual.  District Court properly granted summary judgment on ADA retaliation claim, because all alleged adverse actions occurred either before or many months after protected activities.  Hatch v. Brennan, 2018 U.S. App. LEXIS 10801 (9th Cir. April 27, 2018).

Failure to disclose damage computation does not bar damages evidence, unless involves willfulness, fault or bad faith and availability of lesser sanctions is considered.  District Court properly granted summary judgment against discrimination and retaliation claims.  Former employee did not present evidence employer had discriminatory motives or treated her differently than coworkers or that employer’s reasons for disciplining and firing her were pretextual, or that there was any evidence of a causal relationship between her agency complaints and any adverse action, or that the employer’s legitimate nondiscriminatory reasons for disciplining and firing her were pretextual.  District Court improperly excluded evidence of damages from alleged violation of the Family and Medical Leave Act based on former employee’s failure to disclose computation of her damages claims under Fed. R. Civ. P. 26(a)(1)(A)(ii), without finding noncompliance involved willfulness, fault or bad faith or considering availability of lesser sanctions.  Tablizo v. City of Las Vegas, 2018 U.S. App. LEXIS 10804 (9th Cir. April 27, 2018).

NLRA applied to employees working in commercial gaming establishments on tribal lands. National Labor Relations Act applied to relationship between employees working in commercial gaming establishments on tribal lands and the tribal governments that own and manage the establishments.  The casino violated the National Labor Relations Act by trying to stop distribution of union literature.  Casino Pauma v. NLRB, 2018 U.S. App. LEXIS 10553 (9th Cir. April 26, 2018).

Variety of precautions defeated disability discrimination claim.  District Court properly granted summary judgment against disability discrimination claim, because former employee refused to take only vacant position when her 20 weeks of leave and a 90-day temporary alternate duty ended, and former employee failed to show reason was pretext.  The employer adequately engaged in the interactive process by corresponding with the former employee about her leave, granted multiple leave requests, spoke to her about her future position, offered her personal leave after she ran out of FMLA leave, gave her 90 day alternative duty position and offered a regular position which she rejected.  Former employee did not show existence of another reasonable accommodation that would have enabled her to perform.  District court properly granted summary judgment against retaliation claim, because the former employee did not complain of discriminatory treatment based on disability or otherwise attempt to vindicate her rights under the ADA and for the same reason the discrimination claim failed.  Jablonski v. Walmart, Inc., 2018 U.S. App. LEXIS 10601 (9th Cir. April 26, 2018).

U.S. District Court for District of Hawaii

District Court granted summary judgment against disability discrimination and failure to reasonably accommodate claims. Former employee was unable to perform essential functions of his firefighter position at the time of his termination.  Former employee’s requested accommodations would have left him unable to perform essential functions of his position.  He offered no evidence that further leave after three months would have eliminated the acute stress that prohibited him from performing his functions.  Baab v. Harris Corp., 2018 U.S. Dist. LEXIS 98351 (D. Haw. June 12, 2018).

Because a hostile work environment was omitted from former employee’s charge of discrimination but contained in his precomplaint questionnaire, the District Court denied the employer’s motion to dismiss his complaint for failure to exhaust. Maybin v. Hilton Grand Vacations Co., LLC, 2018 U.S. Dist. LEXIS 98405 (D. Haw. June 12, 2018).

Charge described no acts of sexual harassment.  District Court dismissed Title VII sexual harassment claim with prejudice because charge of discrimination did not describe any acts of sexual harassment or hostile work environment and any new allegations would be time-barred.  District Court dismissed intentional infliction of emotional distress claim without prejudice, because former employee may be able to base claim on alleged continued sexual harassment.  Medeiros v. Akahi Servs., 2018 U.S. Dist. LEXIS 91202 (D. Haw. May 31, 2018).

Tip pooling claims necessarily raised federal issues.  District Court denied motion to remand state law claims based upon allegedly improper tip pooling practices, because claims necessarily raised federal issues regarding proper tip pooling that would be actually disputed in case and were substantial.  Because Hawaii had no statute or case law governing tip pooling, the Court could consider the federal issues without disturbing any congressionally approved balance of federal and state responsibilities.  Trawick v. Tri-Star Rest. Grp., LLC, 2018 U.S. Dist. LEXIS 86632 (D. Haw. May 23, 2018).

Complaint omitted needed factual allegation.  District Court granted motion for judgment on the pleadings, because claims based on discrete acts occurring 300 days before charge was filed were time-barred; the compliant failed to state facts showing the severity, pervasiveness or abuse needed to state a hostile work environment claim; the complaint failed to allege any adverse employment action or similarly situated employee outside the protected class treated more favorable sufficient to state a disparate treatment claim; and the complaint failed to allege protected activity or an adverse employment action sufficient to state a retaliation claim.  Dixon v. Dep’t of Educ., 2018 U.S. Dist. LEXIS 80980 (D. Haw. May 14, 2018).

Dispute of fact whether company delivered notice terminating collective bargaining agreement.  District Court denied summary judgment company terminated collective bargaining agreement, because there was a genuine issue of material fact whether the company delivered its notice of termination to the union.  Haw. Carpenters Trust Funds v. H.E. Johnson Co., 2018 U.S. Dist. LEXIS 77722 (D. Haw. May 8, 2018).

Hawaii Supreme Court

Workers’ compensation exclusivity did not bar claim for reputational harm.  Licensed private investigators owed duty of care to subjects of their investigations.  Because reputational harm was not a personal injury subject to workers’ compensation exclusivity under Haw. Rev. Stat. 386-3, employees terminated after an investigation into alleged misconduct could maintain defamation and false light claims against employer and employer’s officials who had discussed terminations with local newspaper.  There was a disputed question of material fact as to the truth of the alleged defamatory statements.  Nakamoto v. Kawauchi, 2018 Haw. LEXIS 99 (Sup. Ct. May 8, 2018).

Hawaii Intermediate Court of Appeals

Arbitration vindicating termination mooted prohibited practice charge based on hearing delay.  Hawaii Labor Relations Board properly dismissed complaint claiming union failed to prosecute termination case according to timelines in the collective bargaining agreement, because arbitration award vindicating termination and awarding employee nothing mooted prohibited practice complaint.  Stucky v. Takeno, 2018 Haw. App. LEXIS 222 (Ct. App. May 25, 2018).

Note: We analyze cases to learn rules courts will follow or disappoint us if they do not. Rules courts follow allow us to behave and provide explanations they accept. Competent advocates may limit the rules to the facts of the case that discuss them, or expand the rules by showing differences in other cases are irrelevant.