Grilho v. Pioneer Hi-Bred Int'l, Inc.

SHANNELL GRILHO, Plaintiff, v. PIONEER HI-BRED INTRNATIONAL, INC., ET AL., Defendants.

CIV. NO. 17-00286 LEK-WRP

UNITED STATES DISTRICT COURT DISTRICT OF HAWAII

April 30, 2020

ORDER GRANTING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendants Pioneer Hi-Bred International, Inc. ("Pioneer"), and E.I. du Pont De Nemours and Company's ("DuPont" and collectively "Defendants") Motion for Summary Judgement ("Motion"), filed on August 21, 2019. [Dkt. no. 47.] Plaintiff Shannell L. Grilho ("Plaintiff") filed her memorandum in opposition on September 20, 2019, and Defendants filed their reply on September 27, 2019.¹ [Dkt. nos. 50, 53.] This matter came on for hearing on December 13, 2019. On December 31, 2019, this Court issued an entering order outlining its decision on the Motion. [Dkt. no. 56.] The instant Ordersupersedes that entering order. Defendants' Motion is hereby granted for the reasons set forth below.

BACKGROUND

I. Factual Background

Defendants are involved in commercial corn seed production and have a 2,600-acre facility in Waialua, Hawai`i, where they grow corn seed that is sold in the United States and internationally. [Defs.' Concise Statement of Facts in Supp. of Defs.' Motion ("CSOF"), filed 8/21/19 (dkt. no. 48), Decl. of Michelle Matsuda ("Matsuda Decl.") at ¶ 2.²] Plaintiff began working for Defendants through Kelly Services, Inc. on August 24, 2013 and was hired by Defendants directly for the position of field worker on December 6, 2013. [CSOF at ¶ 1; Pltf.'s Concise Statement of Facts in Supp. of Pltf.'s Mem. in Opp. to Motion ("Opp. CSOF"), filed 9/20/19 (dkt. no 50-1), at ¶ 1.³] On an unspecified date, Plaintiff received Defendants'Code of Conduct. On August 25, 2014, Plaintiff became a production technician, a regular, part-time, hourly position, and received a summary of benefits, including long term disability benefits. [CSOF at ¶¶ 2-3.] Plaintiff alleges that at some point she was transferred from the shade houses to the rouging department (removing defective plants from the fields). [Pltf.'s Decl. at ¶ 28.]

On February 9, 2015, Plaintiff went on leave due to a knee injury. [CSOF at ¶ 6.⁴] Plaintiff was predicted to be able to return to work February 10, 2015 at light duty, and full duty on February 17, 2015, however her return to work date was changed to February 24, 2015. [Id. ¶¶ 6-7.] Plaintiff applied for short term disability benefits in accordance with Defendants' disability policy. Her claim was granted on February 20, 2015. [Id. at ¶ 8.] Defendants extended Plaintiff's leave to May 22, 2015, due to her inability to return to work. [Id. at ¶ 9.] On May 26, 2015, Plaintiff informed Defendants that she was going to have surgery on her knee on June 9, 2015 and would be unable to work until July 29, 2015. [Id. at ¶ 10.] On June 16, 2015, Plaintiff complained toMs. Matsuda that Plaintiff's supervisor prevented her from receiving a tuition reimbursement and had created a hostile work environment. Ms. Matsuda documented and investigated Plaintiff's complaint, but ultimately could not substantiate Plaintiff's allegations. [Matsuda Decl. at ¶¶ 34-35, Exh. O (misconduct investigation report, dated 6/16/15).]

Plaintiff underwent knee surgery on July 9, 2015 and was scheduled to have another on August 28, 2015, which delayed her expected return to work to approximately October 31, 2015. [CSOF at ¶ 12.] After Plaintiff postponed her second surgery, she was cleared for modified office duty, subject to certain restrictions. She filed for Long-Term Disability benefits ("LTD") on August 1, 2015. [Id. at ¶ 13-14.] It was a violation of company policy for Plaintiff to receive LTD benefits while still employed with Defendants. See Matsuda Decl. at ¶ 42. As of August 31, 2015, Plaintiff's modified duty restriction was predicted to end on October 2, 2015. [CSOF at ¶ 16.] On September 10, 2015, Plaintiff was terminated, but was reinstated the following day. See Matsuda Decl. at ¶ 42 (stating Plaintiff was terminated for applying for LTD benefits and reinstated based on her representation that she would not accept them; Opp. CSOF, Decl. of Shannell L. Grilho (Pltf.'s Decl.") at ¶ 38. On September 29, 2015, Plaintiff's work restrictions were extended to November 9, 2015. [CSOF at ¶ 19.]

Plaintiff began working again through Kelly Services, Inc. on October 6, 2015, with placement at Direct Support Resources, doing office work. [Id. at ¶ 20.] On or around October 19, 2015, Plaintiff returned to work at Defendants in a temporary data entry position that accommodated her work restrictions until November 9, 2015. [Id. at ¶ 21; Matsuda Decl. at ¶ 54.] During Plaintiff's October 20, 2015 worker's compensation deposition, Plaintiff denied receiving any LTD benefits. [CSOF at ¶ 22.] On November 9, 2015, Plaintiff's work restrictions were extended to December 21, 2015 and, on December 21, 2015, they were extended again to February 1, 2016. [Id. at ¶¶ 23-24.] On December 23, 2015, Plaintiff was terminated from employment with Defendants because, according to Defendants, Plaintiff was not able to perform the essential functions of any available position, with or without reasonable accommodation. Matsuda Decl. at ¶ 58; Exh. DD (Plaintiff's termination memo, dated 12/23/15)); see also Pltf.'s Decl. at ¶¶ 45-46 (confirming Plaintiff was terminated on December 23, 2015, but disputing the reason for her termination). Defendants state that Plaintiff was unable to perform the job of a production technician due to her medical restrictions, and Defendants did not have the need for an employee to do data entry at that time. [Matsuda Decl. at ¶ 58.]

II. Procedural Background

On May 12, 2017, Plaintiff initiated this action in the First Circuit Court for the State of Hawai`i ("State Court") against Defendants. [Notice of Removal, Exh. 1 at CM/ECF pgs. 1-11 (Complaint).] On June 15, 2017, Defendants filed their answer to the Complaint ("Answer") in State Court. [Id. at CM/ECF pgs. 15-19 (Answer).] Also on June 15, 2017, Defendants removed the action to this district court based on diversity jurisdiction. See Notice of Removal at ¶¶ 3-7 (alleging Plaintiff is a resident of Hawai`i and Defendants are foreign corporations).

Plaintiff asserts the following claims: violation of the Hawaii Whistleblower Protection Act ("HWPA"), Haw. Rev. Stat. § 378-63, alleging she was discriminated against for reporting violations or suspected violations to her employer ("Count I");⁵ negligent infliction of emotional distress ("Count II"); and intentional infliction of emotional distress ("Count III"). Plaintiff seeks the following relief: special, general, and consequential damages; pre-judgment and post-judgment interest; lost wages; punitive and exemplary damages;attorneys' fees; and any other appropriate relief. [Complaint at pg. 11.] On November 20, 2018, the Court issued an order dismissing Counts II and III with prejudice. [Dkt. no. 42.]

DISCUSSION

I. Legal Standard for HWPA Claims

The HWPA provides, in pertinent part:

An employer shall not discharge, threaten, or otherwise discriminate against an employee regarding the employee's compensation, terms, conditions, location, or privileges of employment because:

(1) The employee . . . reports or is about to report to the employer, or reports or is about to report to a public body, verbally or in writing, a violation or a suspected violation of:

(A) A law, rule, ordinance, or regulation, adopted pursuant to law of this State, a political subdivision of this State, or the United States[.]

Haw. Rev. Stat. § 378-62(1)(A).

"In Crosby v. State Department of Budget & Finance, 76 Hawai`i 332, 342, 876 P.2d 1300, 1310 (1994), the Hawaii Supreme Court essentially adopted the familiar McDonnell Douglas burden-shifting framework for claims under Hawaii's Whistleblowers' Protection Act."<sup>6</sup> Chan v. Wells Fargo Advisors, LLC, 124 F.Supp. 3d 1045, 1055 (D. Hawai`i 2015). The Ninth Circuit has stated:

Under th[e McDonnell Douglas burden-shifting] analysis, plaintiffs must first establish a prima facie case of employment discrimination. Noyes v. Kelly Servs., 488 F.3d 1163, 1168 (9th Cir. 2007). If plaintiffs establish a prima facie case, "[t]he burden of production, but not persuasion, then shifts to the employer to articulate some legitimate, nondiscriminatory reason for the challenged action." Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1123-24 (9th Cir. 2000). If defendant meets this burden, plaintiffs must then raise a triable issue of material fact as to whether the defendant's proffered reasons for their terminations are mere pretext for unlawful discrimination. Noyes, 488 F.3d at 1168; see alsoColeman v. Quaker Oats Co., 232 F.3d 1271, 1282 (9th Cir. 2000) (plaintiffs must "introduce evidence sufficient to raise a genuine issue of material fact" as to pretext).

Hawn v. Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1155-56 (9th Cir. 2010) (some alterations in Hawn). This district court has stated:

For a retaliation claim, the plaintiff's prima facie case consists of establishing that: "(1) [s]he engaged in a protected activity; (2) h[er] employer subjected h[er] to an adverse employment action; and (3) a causal link exists between the protected activity and the adverse action." Ray [v. Henderson], 217 F.3d [1234,] 1240 [(9th Cir. 2000)]. "The requisite degree of proof necessary to establish a prima facie case . . . on summary judgment is minimal and does not even need to rise to the level of a preponderance of the evidence." Wallis v. J.R. Simplot Co., 26 F.3d 885, 889 (9th Cir. 1994) (citation omitted).

Black v. Correa, Civil No. 07-00299 DAE-LEK, 2008 WL 3845230, at *11 (D. Hawai`i Aug. 18, 2008) (some alterations in Black).

In analyzing whether the defendant took the challenged action because of the employee's protected activity - i.e. whether there is "a causal connection between the alleged retaliation and the 'whistleblowing'" - the Hawai`i Supreme Court has looked to HWPA's legislative...