Tsuji v. Kamehameha Sch.

154 F.Supp.3d 964

Stanley R. Tsuji, Plaintiff,

v.Kamehameha Schools, Defendant.

CIVIL NO. 14-00206 JMS-BMK

United States District Court, D. Hawai'i.

Signed December 22, 2015

Stanley R. Tsuji, Honolulu, HI, pro se.

Elbridge W. Smith, Smith Himmelmann AAL ALC, Honolulu, HI, for Plaintiff.

Austin F. McCullough, John L. Knorek, Torkildson Katz Moore Hetherington & Harris, Honolulu, HI, for Defendant.

ORDER (1) GRANTING DEFENDANT KAMEHAMEHA SCHOOLS' MOTION FOR SUMMARY JUDGMENT, DOC. NO. 56; AND (2) DENYING PLAINTIFF STANLEY TSUJI'S COUNTER MOTION FOR SUMMARY JUDGMENT, DOC. NO. 61

J. Michael Seabright, Chief United States District Judge

I. INTRODUCTION

Plaintiff Stanley R. Tsuji (“Plaintiff” or “Tsuji”) was employed as a security guard with Defendant Kamehameha Schools (“Defendant” or “Kamehameha Schools”). Defendant terminated Plaintiff's employment after he was found sleeping while on duty, and then allowed those who woke him up to enter the campus without verifying their identities. In this action, Plaintiff, proceeding pro se, asserts claims against Defendant for violation of his “rights as an employee ... under numerous State and Federal Statutes,” alleging he “suffered a [m]edical [r]elapse at work” and was thereafter “illegally [t]erminated” from his employment. Doc. No. 1-1, Compl. ¶¶ at 1-2. Currently before the court is Defendant's Renewed Motion for Summary Judgment, Doc. No. 56, and Plaintiff's Counter Motion for Summary Judgment. Doc. No. 61. For the following reasons, Defendant's Motion is GRANTED and Plaintiff's Counter Motion is DENIED.

II. BACKGROUND

A. Factual Background

The factual background is derived from Defendant's Concise Statement of Facts (“CSF”), Doc. No. 57, supported by evidence primarily consisting of (1) a Declaration of Lyan Bonn, an employee relations specialist at Kamehameha Schools, Doc. No. 57-8; (2) a Declaration of Michael Moses, Captain of Security at Kamehameha Schools, Doc. No. 57-9; (3) personnel documents disclosed by Defendant, Doc. No. 57-3; (4) Plaintiff's deposition testimony, and related deposition exhibits, Doc. No. 57-4, and (5) Plaintiff's redacted medical records. Doc. No. 57-5.

In response, Plaintiff submitted several exhibits that largely duplicate evidence already submitted by Defendant. Plaintiff did not, however, file a counter-statement of facts (a “separate document containing a single concise statement that admits or disputes the facts set forth” in Defendant's CSF) as instructed and as required by Local Rule (“LR”) 56.1(b). But given Plaintiff's pro se status, the court construes Plaintiff's (1) “Exhibit[s] 1 through 6,” Doc. No. 59, and (2) “2nd Motion in Opposition to Defendant's 2nd Motion for Summary [Judgment],” Doc. No. 61, as his response to Defendant's CSF. With that explanation, the court sets forth the facts, construing the evidence in the light most favorable to the Plaintiff when considering Defendant's Motion. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp. , 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986) ; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84 , 546 F.3d 1121, 1126 (9th Cir.2008) (stating that “the evidence of [the nonmovant] is to be believed, and all justifiable inferences are to be drawn in his favor.” (citations omitted)).

Tsuji worked as a security guard for Kamehameha Schools from February 26, 2007 until his termination on November 25, 2013. Doc. No. 57-3 at 13-14, Def.'s Ex. A at KS-00013-14 (hiring letter); Doc. No. 57-4 at 82, Tsuji Dep. Ex. 10 at KS-00050 (termination letter).¹ After he was hired, he answered a questionnaire asking whether he was a disabled veteran, or whether he was “an individual with a disability,” to which he responded no to both questions. Doc. No. 57-4 at 7, Tsuji Dep. at 23; id. at 69, Tsuji Dep. Ex. 2 at KS-00102. According to his termination letter, Tsuji was terminated because he was “sleeping at the ... main campus gate in general view of the public, while on-duty during restricted campus hours[.]” Doc. No. 57-4 at 82, Tsuji Dep. Ex. 10 at KS-00050. The termination letter also states:

Prior to this incident, you have been disciplined on previous occasions for the following:

• March 2012--Falsified security logs on nine (9) occasions, suspended for five (5) working days without pay and notified of a Final Written Warning.

• June 20, 2012--Observed sleeping on-duty, suspended for three (3) days without pay. Suspension rescinded to verbal counsel[ing] on September 12, 2012.

Id. at 83, Tsuji Dep. Ex. 10 at KS-00051.

And Tsuji's employment records document that in fact he had been suspended for five days (and had been given a final written warning) after an investigation determined that he had falsified security logs in violation of Defendant's code of conduct and employee handbook. See Doc. No. 57-4 at 80-81, Tsuji Dep. Ex. 9. Tsuji also acknowledged that he had been suspended with pay for three days after others observed him sleeping while in a security truck (although the suspension was later rescinded).²

Tsuji also does not dispute that he was sleeping during a midnight or “graveyard” shift on October 29, 2013.³ Doc. No. 57-4 at 19-20, Tsuji Dep. at 71-77. A Kamehameha Schools investigation, based on statements and pictures from employees of a private contractor (who observed Tsuji), concluded that Tsuji was sleeping at the main gate, and, when awakened, “opened the gate arm without verifying the identification of [those entering the gate].” Doc. No. 57-4 at 86, Tsuji Dep. Ex. 11 at KS-00126. “There was sufficient cause to believe that Tsuji had been sleeping in the guard house at approximately 12:40 [a.m.] on October 29, 2013, while on duty and not on any approved break.” Doc. No. 57-9, Moses Decl. ¶ 4. There was “sufficient cause to believe that Tsuji had admitted persons to [Kamehameha Schools'] campus-- without checking their identification or logging their entrance to campus--at or around that time after they [woke] him up.” Id.

Tsuji's termination letter found him in violation of an employee handbook and a code of conduct stating:

• “Any conduct which is disloyal, disruptive, competitive, or damaging to [Kamehameha Schools] will not be permitted.”

• “The safety and security of employees, students, and visitors will be of the highest importance when on [Kamehameha Schools] premises or at [Kamehameha Schools] sponsored events.”

• “Any form of dishonesty and/or personal, immoral or unethical conduct on or off the job which gives the appearance of wrongdoing which could discredit [Kamehameha Schools]; falsifying or altering employment, time or other [Kamehameha Schools] records will not be tolerated.”

Doc. No. 57-4 at 83, Tsuji Dep. Ex. 10 at KS-00051. He was also found in violation of “KS Procedure 410.10B--Discipline, Section J. Examples of Unacceptable Conduct,” which states:

14. “Taking unauthorized breaks or otherwise leaving the assigned work area without providing notice ... stopping work early without permission; sleeping, giving the appearance of sleeping, or loafing on duty.”

Id.

Tsuji contends that he is under a doctor's care, and was at the time of the October 2013 incident. Doc. No. 59, Pl.'s “Amended Pleadings” ¶ 1. He relies on a June 24, 2011 letter from Sarah J. Seabolt, M.D. (which was provided to Kamehameha Schools in June 2011) stating that “Mr. Stanley Tsuji is under my care. He reports exhaustion because of night shift work. Please consider reducing his work from 5 days a week to 3-4 days a week.” Doc. No. 59-1, Pl.'s Ex. 1. Previously, on May 25, 2011, Tsuji had sought a schedule change from full-time to part-time. Doc. No. 57-8, Bonn Decl. ¶ 2. At that time, he was asked if this was a request for a reasonable accommodation under the ADA, and he responded “no.” Doc. No. 57-4 at 8-9, Tsuji Dep. at 26, 29, 30; Doc. No. 57-8, Bonn Decl. ¶ 2. Nevertheless, after Kamehameha Schools received Dr. Seabolt's June 24, 2011 letter, “Tsuji was allowed to reduce his weekly work schedule to three first watch (11pm-7:45 am) shifts,” Doc. No. 57-8, Bonn Decl. ¶ 3, that is, three days a week.

On July 22, 2011, Dr. Seabolt wrote to Kamehameha Schools that Tsuji's “health has improved significantly with his present work schedule. Based on this improvement, I feel it would now be reasonable to add work on the ‘first watch’ Saturday, Sunday and Monday and on the ‘2nd watch’ Wednesday and Thursday.” Doc. No. 59-2, Pl.'s Ex. 2. Kamehameha Schools accommodated this request to increase Tsuji's workload, determining that it “could provide a schedule to Tsuji nearly identical to that recommended by this most recent doctor's note.” Doc. No. 57-8, Bonn Decl. ¶ 5.

Tsuji proffers no other evidence that could have indicated to Kamehameha Schools that he was disabled, at least until after the October 2013 sleeping incident. Tsuji testified at his deposition that between July or August of 2011 (when he discussed a modified work shift) until October of 2013 (when he was found sleeping on the job), he never spoke to anyone at Kamehameha Schools regarding a medical condition, a disability, or “problems with midnight shift work or problems with staying awake on duty.” Doc. No. 57-4 at 24, Tsuji Dep. at 92-93; see also id. at 85 (“Nothing else was said to anybody else.”); id. at 101 (agreeing that between those two events, Tsuji had not discussed feeling exhausted with anyone at Kamehameha Schools).

Tsuji argues that he “ha[d] given the Defendant[ ] notice of his Midnight shift disability ... which the Defendant[ ] acknowledge in their ... Exhibits 4 and 5, which documents and acknowledges by Dr. Sarah J. Seabolt M.D. that the Plaintiff suffered a 40% Midnight shift disability, and further diagnosed the Plaintiff with a 100% Midnight shift disability[.]” Doc. No. 61, Pl.'s Opp'n ¶ 3. He claims a violation of the Americans with Disabilities Act (“ADA”), appearing to argue that some type of vog sensitivity constitutes a disability.⁴ See id. at 5 ¶ 5 (arguing that “Plaintiff has demonstrated that Vog-Sulfuric...