Petition for Writ of Certiorari — Horita v. Kauai Island Utility Cooperative

Supreme Court, U.S.

FILED

vo «091245 APR B- 2010

wy Tame PCE OF THE CLERK

Supreme Court of the United States

SHANNON C. HORITA, PETITIONER,

v.

KAUAI ISLAND UTILITY COOPERATIVE,

A HAWAII CORPORATION

PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

CLAYTON C, [KEI

Counsel of Record

Law Office of

Clayton C. [kei

1440 Kaptolana Blvd.

Suite 1203

Honolulu, Hawai 96814

(808) 533-8777

CCIOffice@hawair.rr.com

CURRY & TAYLOR @ 202-393-414)

l

QUESTION PRESENTED

Whether in light of the evolution of the doctrines of

equitable tolling and equitable estoppel and the rejection

by a number of state courts of the notification of

discharge test enunciated by this Court in Delaware

State College v. Ricks, 449 U.S. 250, 101 S.Ct. 498, 66

LL. Ed.2d 431 (1980) and Chardon v. Fernandez, 454 U.S. 6,

102 S.Ct. 28, 70 L.Ed.2d 6 (1981), would a revision of the

notification of discharge test be appropriate.

2

TABLE OF CONTENTS

REASONS FOR GRANTING THE PETITION..............cececcecceeceecees )

CONCL US i. ccacoccscccoccccce 30

APPENDIX

‘ii

TABLE OF AUTHORITIES

Page

CASES

ARONSEN V. CROWN ZELLERBACH, 662 F°.2D 584

COPE TE, TR vivachikseceecSsaie tea 911

CHARDON V. FERNANDEZ, 454 U.S. 6, 70 L.ED.2D 6,

OE Ee a ee ek vv ceed ic ode cecns cae eeu ek ke 9

COCKE V. MERRILL LYNCH & Co., 817 F.2D 1559

CPT Ie EF Wed wk cscccccsvesnnicee ee 18,19

DARTT V. SHELL OIL Co., 539 F.2D 1256 (10TH CIR.

PPPs cescicn seacen ts couy caseeuteniterein ik ae ee ee 16, 17

DELAWARE STATE COLLEGE V. RICKS, 449 U.S.250,

66 L. ED.2D 431, 101 S.CT. 498. (1980).........ccccccccccesosssccoeees 9,10

HAAS V. LOCKHEED MARTIN CORPORATION, 396 MD.

BOD, O46 A Bry FAG Tr css cccscc this eee bi unicceee

LEDBETTER V. GOODYEAR TIRE & RUBBER CoO., 550

U.S. 618, 127 S.CT. 2162, 167 L.ED. 2D 982 (2007).......... 22,24

LOE V. HECKLER, 768 F.2D 409, 421 (D.C. CIR. 1985) ........... 22

McCoy v. SAN FRANCISCO, CiTY & COUNTY, 14 F.3D

Oe Cae Ce FOO) ckikcencess ries eee eee 1]

NATIONAL RAILROAD PASSENGER CORPORATION V.

MORGAN, 536 U.S. 101, 153 L.ED. 2D 106, 122 S.CT.

NE svi ectrvcicecccksSccsac dno eas 22, 23

NATON V. THE BANK OF CALIFORNIA, 649 F.2D 69]

i. CEE sa kccain hh aaa ciewioes Gan PREC ERATE TE toe anaes eae eae 1h

PEARSON V. MACON-BIBB COUNTY HOSPITAL

AUTHORITY, 952 F.2D 1274 (11TH CIR. 1992) .....00......... 19, 20

PUCHERT V. AGSALUD, 67 HAW. 25, 677 P.2D 449

(1984), APPEAL DISMISSED, 472 U.S. 1001, 1055S.

Oe. Be ce ok... ) Renn ENEE

REEB V. ECONOMIC OPPORTUNITY ATLANTA, INC..

RHODES V. GUIBERSON OIL TOOLS DIVISION, 927

F.2D 876, REVD ON OTHER GROUNDS, 39 F.3D 53

"6S ga Cae 6 |) 2 Ree eee R RE fee ANAE a IOLA RN Lise 14,15

Lv

— ANO V. ROCKWELL INTERNATIONAL, ING., 14

tle. QTE BT, Fae FP BUG vedic cicesseeccsscoveseevesses 27, 28

ROSS V. STOUFFER HOTEL COMPANY (HAW AIT)

EeTD., TIC... FE FRA W. SO CD vcsccvicsecnscrvnccscsacsscacscessonsess 24, 26

STEWART V. BOOKER T. WASHINGTON INSURANCE,

SSS FE BE BEG CLIT CIR, BOD) oevsvssccovceseseycacesivsecisrsarey 01, 22

WILKERSON V. SIEGFRIED INSURANCE AGENCY, 621

Fe ee re rc Be istiki se sheen knsdedascaicsacddnesaccsvixecsvereces 17

WRIGHT V. AMSOUTH BANCORPORATION, 320 F.2

1198 (11TH CIR. “>a iain

STATUTES

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ey es, ay sects clea dweseeneeeleiaal 20

ee, OD iv aiccc vais osccvscecdsdeiiviasccedthawictecsdevece, 3, 21

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Petitioner, Shannon C. Horita_ respectfuily

petitions for a writ of certiorari to review the judgment

and decision of the United States Court of Appeals for

the Ninth Circuit in this case.

OPINIONS BELOW

The opinion of the United States Court of

Appeals for the Ninth Circuit, affirming the judgment

of the district court, is reproduced at App. la-4a. The

Order Granting Defendant’s Motion for Summary

Judgment entered by the United States District Court

for the District of Hawaii is reproduced at 6a-19a. The

Order denying Petitioner’s Petition to Panel Rehearing

and Rehearing En Banc is reproduced at 20a.

JURISDICTION

The Order Granting Defendant’s Motion for

Summary Judgment was entered by the District Court

on August 22, 2008. Petitioner, Shannon C. Horita

timely filed her Notice of Appeal on September 12,

2008. The Memorandum decision of the United States

Court of Appeals for the Ninth Circuit was filed on

November 9, 2009. Petitioner filed her Petition for

Panel Rehearing and Rehearing En Bane on November

26, 2009. The Order denying Petitioner’s Petition for

Panel Rehearing and Rehearing En Bane was filed on

December 22, 2009.

On March 12, 2010, this Court extended the time

within which Petitioner may file her Petition for Writ

of Certiorari to April 6, 2010.

This Court has jurisdiction under 28 U.S.C. §

1254(1)

STATUTORY PROVISIONS INVOLVED

Section 7038(a) of Title VII of the Civil Rights

Act of 1964 provides:

(a) It shall be an unlawful employment

practice for an employer-

(1) to fail or refuse to hire or to discharge any

individual... because of such individual’s

race, color, religion, sex or national origin;

42 U.S.C. § 2000e-1(a)

Section 706(e)(1) of Title VII provides:

(e) Time for filing charges; time for service of

notice of charge on respondent; filing of charge

by Commission with State or local agency.

(1) A charge under this section shall be

filed within one hundred and eighty days

after the alleged unlawful employment

practice occurred and notice of the charge

(including the date, place and

circumstances of the alleged unlawful

employment practice) shall be served

upon the person against whom. such

charge is made within’ ten’ days

thereafter, except that in a case of an

unlawful employment — practice — with

respect to which the person aggrieved has

‘)

wv

initially instituted proceedings with a

State or local agency with authority to

grant or seek relief from such practice or

to institute criminal proceedings with

respect thereto upon receiving notice

thereof, such charge shall be filed by or on

behalf of the person aggrieved within

three hundred days after the alleged

unlawful employment practice occurred,

or within thirty days after receiving

notice that the State or local agency has

terminated the proceedings under the

State or local law, whichever is earlier,

and a copy of such charge shall be filed by

the Commission with the State or local

agency.

42 U.S.C. § 2000e-5(e)(1)

STATEMENT

Petitioner Horita is a Japanese-American

woman and a resident of the County of Kauai, State of

Hawaii, during the relevant time period. KIUC is a

Hawaii corporation located in the County of Kauai,

State of Hawaii, whose purpose is the generation,

transmission and distribution of electricity to member-

owners.

Horita began her employment with KIUC in

January 2004 as a temporary employee in the Human

Resources Department (“Human Resources”). On

June 5, 2005, Horita became a permanent full-time

Human Resources Administrator, Grade 9. Darnney

Proudfoot (‘Proudfoot’) was Horita’s immediate

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supervisor. Proudfoot is a female whom Horita

believes to be Chinese-American.

On or about December 6, 2005, Harry A. “Dutch”

Achenbach (“Achenbach”) became the Interim Chief

Executive Officer (‘CEO’) of KIUC, and became the

permanent CEO in February or March 2005.

Achenbach is a Caucasian male.

On or about April 19, 2005, Achenbach informed

KIUC employees that he intended to reorganize KIUC.

Achenbach said that the National Rural Electric

Cooperative Association (““NRECA”) would conduct an

organizational assessment. Achenbach also stated the

that Human Resources Department (“Human

tesources”) costs too much and that it should be

outsourced.

About two-weeks after June 5, 2005, when

Horita became a permanent full-time Human Resources

Administrator, Grade 9, Achenbach decided to

downgrade her position to a Human _ Resources

Assistant, Grade 7, which is a lower paying position.

Achenbach directed Marcia Shimokawa (“Shimokawa”),

Human Resources Administrator, to execute the

downgrade to which Shimokawa objected. During this

conversation, Achenbach commented to Shimokawa

that Horita walked like a “sumo person.”

Horita’s salary was reduced although she

refused to sign the revised employment offer. Horita

continued to perform her duties despite the pay

reduction.

a

2)

On September 2, 2005, Achenbach met with the

Human Resources staff, which included Horita, and

informed them that Human Resources would be

“outsourced” as recommended by the organization

assessment by NRECA. Proposals from Altres and

another vendor were being reviewed. Achenbach

mentioned a cost savings of $500,000.00, which made it

favorable to outsource Human Resources. Achenbach

also stated that the Human Resources Administrator

positions that Shimokawa and Horita held were both

downgraded from Grade 9, with an annual salary of

about $50,042.00, to Grade 5, with an annual salary of

about $40,709.00. Shimokawa and Horita’s positions

were the only positions downgraded in the company.

Lastly Achenbach stated that if Human Resources

were to remain in-house, the Human Resources staf!

would be able to get their jobs back.

Achenbach wrote a letter to MHorita dated

September 28, 2005. This letter informed Horita that

her position in Human Resources would be eliminated

on December 31, 2005.

On October 4, 2005, Horita received an offer

from KIUC for the Administrative Assistant position in

Member Services, which paid less than what Horita

was earning. Horita was advised that if she did not

accept the position, she was free to bid for another

vacancy in the company before being displaced on

January 1, 2006. MHorita declined the job offer, and

attached an October 4, 2005 memorandum — to

Achenbach stating in part, “ you mentioned the

existence of 17 new positions resulting from this

reorganization in the September 2, 2005 Human

6

Resources Department meeting. I would be willing to

consider any one of these as they become available.”

On October 12, 2005, Randall Hee ordered

Horita to vacate her office by October 24, 2005, to make

room for the newly formed Legal Department. Mr. Hee

acknowledged that he was displacing the Human

Resources staff and that a position was filled without

offering it to the Human Resources staff.

On October 24, 2005, Randall Hee ealled a

mecting with the employees of the Legal, Executive,

and Human Resources departments to discuss the

reorganization of the former Human Resources offices,

and stated that the Human Resources employees,

Shimokawa and Horita, would report to the new

Utility Attorney, Karen Baldwin (“Baldwin”), effective

October 31, 2006.

On November 2, 2005, Baldwin took Horita

around the workplace and pointed out what she wanted

cleaned in the employee lounge, women’s locker

roon/restroom, and kitchen area. Baldwin also gave

the same directions to Shimokawa. Later that

afternoon, Baldwin asked Horita if the work was done.

Horita responded that she had more important work to

do, that janitorial work was not part of her normal job

duties, and that KIUC had a janitortal service to

perform such work safely.

On November 18, 2005, Horita was called into

Baldwin’s office and was given a written warniny for

“being unfriendly and unhelpful to employees.”

Jaldwin did not give Horita a prior verbal warning, nor

did she provide her the name of her accusers and any

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details about the incident, which was contrary to

KIUC's disciplinary policy. The warning letter placed

Horita one step away from being suspended, and two

steps from being terminated for cause. Horita told

Baldwin thal she, Baldwin, had created a_ hostile

environment.

Qn November 19, 2004, Horita saw her

physicians for anxiety symptoms which she_ had

developed that month, experiencing uncontrollable

shaking and difficulty in breathing. Horita submitted

physicians’ notes to KIUC stating that Horita was not

able to work from November 21, 2005 to January 3,

2006. During her illness, Horita was _ prescribed

medications which included Wellbutrin and Zoloft,

which are anti-depressants.

On December 13, 2005, KIUC issued an

announcement that Jackie Cachero (“Cachero”) was

selected to the Employee Services Coordinator

position. Cachero would have the same functions which

Horita had been performing as a Human Resources

Administrator. Human Resources remains in-house

with none of the Human Resources responsibilities

outsourced

Horita received a letter dated December 20. 2005

from Baldwin advising her that effective January 1,

2006, Horita would be laid-off from KIUC. Also, the

December 20, 2005 letter from Baldwin to Horita stated

In part

As Mr. Achenbach informed you in his letter of

September 28, 2005, your position in Human

Resources will be eliminated December 31. 2005

Ss

Therefore, effective January 1, 2006 you will be

laid off.

You were offered the opportunity to apply and

Interview for varlous open positions. You have

chosen not to apply for any positions.

If you recover within 60 days of your lay-off, you

may be recalled based on KIUC’s operational

needs, your work performance and your

qualifications. If you are released from your

physician’s care and are able to work during this

time period, please inform us of your availability.

On September 21, 2006, Horita submitted to the

Equal Employment Opportunity Commission

(“EEOC”) and Hawaii Civil Rights Commission

(“SHCORC”) her Charge of Employment Discrimination,

alleging Defendant’s action constituted unlawful race,

national origin and sex discrimination. On May 25,

2007, the EEOC issued to Horita her right to suc letter.

On July 38, 2007, Horita filed her Court

Complaint with the District Court. On May 21, 2008,

KIUC filed its Motion for Summary Judgment and

Separate and Concise Statement of Facts (“Motion”).

On August 19, 2008, the District Court heard

KLIUC’s Motion. On Auyust 22, 2008, the District Court

filed its Order granting KIUC’s Motion. In summary,

the District Court determined that Horita failed to

timely exhaust her administrative remedies as it was

of the opinion that none of the discrete acts of

discrimination complained of by Horita occurred within

the 300-day limitation period to file an EEOC charge;

Y

all occurred before November 25, 2005 per the District

Court. Therefore, the District Court granted KIUC’s

Motion as to Horita’s Title VIJ claims.

Also on August 22, 2008, the District Court filed

the Judgment in favor of KIUC.

REASONS FOR GRANTING THE PETITION

A. Doctrines of Equitable Tolling and Equitable

Estoppel

In Delaware State College v. Ricks, 449 U.S.250,

66 LL. Ed.2d 481, 101 S.Ct. 498 (1980) and Chardon v.

Fernandez, 454 U.S. 6, 70 L.Ed.2d 6, 102 8.Ct. 28 (198]),

this Court enunciated the rule that the Statute of

Limitations in discharge cases, starts to run on the date

of notification of termination. To avoid the application

of the date of notification of termination rule, the

various Circuits have applied the doctrines of equitable

tolling or estoppel which was held not to be resolvable

by summary judgment.

In Aronsen v. Crown Zellerbach, 662 F.2d 584

(9th Cir. 1981), the plaintiff alleged that defendant-

employer terminated him due to his age in violation of

the Age Discrimination in Employment Act, 29 U.S.C. §

621 (“ADEA”). The district court granted summary in

defendant’s favor holding that plaintiff was terminated

at a meeting on March 31, 1975 when he was notified of

the termination, anc except for one brief assignment,

did no work for the company. Thus, plaintffs filing of

his notice of intent to sue on January 19, 1977 was

untimely under the ADEA.

i0

The Ninth Circuit in Aronsen stated that a

mechanical formulae would not suffice to identify

accurately the date of an unlawful practice, in light of

the Supreme Court’s decision in Delaware State

College v. Rieks, 449 U.S. 250, 101 S.Ct. 498, 66 L.Ed.

2d 431 (1980) The Ninth Circuit in Aronsen determined

that in “Title VII, and analogously, ADEA

discrimination suits inquiry for the purposes of

determining when the limitation period begins to run

must center on the date when the employee has notice

of the unlawful act; neither succession of work nor

official termination noted on company personne!

records is singularly relevant to this inquiry.”

The Ninth Circuit in Aronsen determined that a

factual dispute existed as to whether plaintiff knew or

should have known on or before March 31, 1975 that he

was being terminated or that he was being subjected to

an unlawful practice. Therefore, it reversed the district

court’s determination.

The Ninth Circuit in Aronsen also noted that on

remand, the issue of equitable tolling may arise.

Although plaintiff did not raise the issue of equitable

tolling as a distinct issue on appeal, it was raised before

the district court. Moreover, the issue was

interconnected with the same facts and arguments as

the accrual date issue, thus defendant suffered no

prejudice.

The Ninth Circuit in Aronsen also stated that in

ADEA cases, “equitable tolling or estoppel almost

invariably involves the credibility of witnesses (and)

(credibility) is difficult to determine from affidavits or

depositions ... Accordingly, summary judgment seldom

1]

will be appropriate when tolling is in issue.” 662 F.2d

584 at 595. The court further noted that in some

equitable estoppel cases, the employer’s conduct was

found to hold out the possibility of reinstatement or

otherwise to “lull” the employee into foregoing a timely

filing. The Plaintiff proffered evidence that the

defendant misrepresented to third party that it would

reinstate plaintiff; defendant knew or had reasonably

known that the third party would convey the

misrepresentation to plaintiff; and plaintiff reasonably

relied on the misrepryesentation by forbearing to timely

file his ADEA claim, citing McCoy v. San Francisco,

City & County, 14 F.8d 28, 30 (9th Cir. 1994) wherein

the Court held that issuance of written decision by

defendant police commission constituted the

discriminatory act rather that its oral decision rendered

after hearing that triggers the statute of limitation,

although plaintiff “knew” about defendant’s decision

after the hearing.

In Naton v. The Bank of California, 649 F.2d 691

(9th Cir. 1981), the Ninth Circuit determined that

plaintiff-appellant did not timely file his notice of intent

to sue as to his ADEA claim, but considered whether

equitable modification was appropriate. It stated two

kinds of equitable modifications have been recognized:

(1) equitable tolling which often focuses on the

plaintiff's exclusive ignorance of the limitations period

and on lack of prejudice to the defendant; and (2)

equitable estoppel which usually focuses on the actions

of the defendants. 649 F.2d 691 at 696 (citations

omitted). The Ninth Circuit also stated:

IXquitable modification of the limitations period

may be appropriate when misleading conduct of

1?

—

the defendant has induced the plaintiff to delay

filing notice of intent to sue. More specifically, in

appropriate circumstances the defendant’s

records and correspondences may form the basis

of equitable estoppel.

A finding of estoppel must rest on consideration

of several factors. Of critical importance is a

showing of the plaintiff's actual and reasonable

reliance on the defendant’s conduct 9 or

representation. Also important is evidence of

improper purpose on the part of the defendant,

or the defendant’s actual or constructive

knowledge of the deceptive nature of its conduct.

And, with respect to a claim for either tolling or

estoppel, the trier should consider the extent to

which the purposes of the limitations period

have been satisfied, notwithstanding the delay in

filing.

We decline to evaluate these factors for the first

time on appeal. Whether to grant equitable

relief from the statutory provision is a matter

that should be determined ‘on a case-by-case

basis, depending on the equities in each case.’

649 F 2d 691 at 696 (citations omitted).

Decisions in the Fifth, Sixth, Tenth and

Eleventh Cireuits would further indicate thet the Court

of Appeals have mitigated the application of the date of

notification of the termination doctrine. In Reeb_v.

Economic Opportunity Atlanta, Ine., 516 F.2d 924 (5th

Cir. 1975), the issue before the Fifth Circuit was

whether the then-90 day statute of limitations of Title

13

VII bars a suit by a plaintiff who did not learn nor in

the circumstances could reasonably have been expected

to learn the facts that would support a charge of

unlawful employment practice until after the 90-day

period clearly passed.

The Fifth Circuit in Reeb concluded that there

were circumstances in that case to excuse plaintiff from

compliance of the 90-day requirement. The defendants

in Reeb did not demonstrate, nor allege any prejudice

attributable to them by the failure to comply with the

90-day requirement. Also, the EEOC took the case on

the merits, investigated, and issued the right to sue

letter. Its action precluded the assumption that the

case was stale simply because the 90-day period had

elapsed.

Moreover, plaintiff in Reeb alleged that

defendant actively sought to mislead plaintiff in

informing her that her position would be terminated

because adequate funds would no longer be available,

and facts that would alert a reasonable person to the

unlawful discrimination only became known to the

plaintiff more than six months after the discriminatory

act when a less qualified male replaced her.

In such circumstances, the Fifth Circuit in Reeo

stated that the statute will not begin to run until the

facts should be apparent to the person with a

reasonably prudent regard for his rights. A corollary of

this principle often found in cases where wrongful

concealment of facts is alleged is that a party

responsible for such wrongful concealment is estopped

from asserting the statute of limitation as a defense.

14

In Rhodes v. Guiberson Oil Tools Division, 927

F.2d 876, revd on other grounds, 39 F.8d 587 (5th Cir.

1994), the district court dismissed plaintiffs ADEA

claim against his employer because he failed to file his

charge with the KEOC in a timely fashion. The

employer represented to plaintiff that his position was

being terminated due to a reduction in work force and

plaintiff accepted that representation in light of a

recession in the oil industry. Plaintiff later discovered

that defendant hired a younger person to replace him.

Assuming the 180-day limit for his EEOC charge began

on the date of his discharge, plaintiffs filing was late.

The Fifth Circuit in Rhodes noted that under

equitable estoppel, an employer is estopped from

asserting the filing period if the employer

misrepresented or concealed facts necessary to support

a discrimination charge. If the defendant did conceal

facts or mislead the plaintiff and thereby caused him

not to assert his rights within the limitation period, the

defendant is estopped from asserting the EEOC filing

time as a defense.

The Fifth Circuit in Rhodes determined that the

record showed that defendant’s misstatement lulled

plaintiff into not approaching the EEOC sooner.

Plaintiff only knew that defendant said it was reducing

its work force, he would be terminated, and he was 56

years old. He had no reason to suspect that his age was

the reason for his discharge. Moreover, the oil industry

was in a- recession and defendant’s _ proffered

explanation seemed credible. Thus, plaintiff was

precluded from evaluating his legal options until he

discovered that he was misled by the

misrepresentations. Thus, the Fifth Circuit determined

that equitable estoppel was applicable here. 927 F.2d

876 at 880-881.

In Ott v. Midland-Ross Corp., 600 F.2d 24 (6th

Cir. 1979), plaintiff alleged that the defendant

terminated his employment based upon his age in

violation of the ADEA. Plaintiff filed his notice of

intent to file a civil action with the Secretary of Labor.

Thereafter, the Department of Labor advised plaintiff

that it obtained defendant’s voluntary compliance of the

ADEA and that he would be reinstated. Plaintiff

alleged that while he was awaiting’ reassignment,

defendant induced him to forgo his ADEA rights by

agreeing to hire him as a consultant. However,

defendant later informed plaintiff that it would not

honor the agreement. Plaintiff filed his civil action

which the district court dismissed for being untimely in

that it was filed almost seven and one-half months

after the three-year period of limitation would normally

have expired.

The Sixth Circuit in Ott reversed the disinissal

and determined that the jury should decide when and

whether the defendant’s acts in securing the consulting

agreement effected a tolling or suspension of the

statute of limitations, and when and whether plaintiff

discovered, or in the exercise of reasonable diligence,

should have discovered that he had been wrongfully

induced. Thus, if the jury finds that plaintiff was

wrongfully led to forego his right to commence suit, it

Should compute the period of time within which plaintiff

was thus deceived, and that time should not be charged

against the three-year period for commencement of his

action. 600 F.2d 24 at 32-33.

16

In Dartt v. Shell Oil Co., 539 F.2d 1256 (10th Cir.

1976), plaintiff was employed by defendant whose

employment was terminated due to a reorganization of

the credit card department that left her with no work.

Plaintiff contacted an attorney who advised her that an

attorney was unnecessary and she should contact the

Department of Labor to file a complaint, which she did.

The Department attempted to conciliate plaintiff's

complaint, but ultimately was unsuccessful. As a result,

plaintiff filed her notice of intent to file a civil action,

and then her civil action against defendant under the

ADEA. However, the district court dismissed it

determining that the plaintiff had untimely filed her

notice ot intent to file a civil action within the 180-day

period under the ADEA and that she was not entitled

to equitable tolling.

The Tenth Circuit in Dartt determined that the

deadline to file a notice of civil action is subject to

equitable tolling, and such tolling was appropriate here.

It noted that plaintiff promptly sought private legal

counsel, and filed her complaint with the labor

department. Plaintiff testified that she kept regular

contact with the department, and that it was not until

after the 180-day period had run that plaintiff was

informed that in order to file a private lawsuit against

defendant she needed to file a notice of intent to sue

within 180 days of the alleged discriminatory act.

Plaintiff retained another counse] who promptly filed

the notice, although 36 days past the statutory time

period. Thus, the Tenth Circuit held that in light of the

circumstances in this case, and because of the de facto

fulfillment of the main purposes of the ADEA, that is,

to provide the Labor Department with an opportunity

to achieve a conciliation of the complaint while the

17

complaint is still fresh and to give early notice to the

employer of a possible lawsuit the 180-day time

limitation was tolled until the filing of plaintiff's notice

of intent to sue. 539 F.2d 1256 at 1260-1262.

In Wilkerson v. Siegfried Insurance Agency, 621

F.2d 1042 (10th Cir. 1980), plaintiff sued defendant

employer for wrongful termination due to age and sex

in violation of the ADEA and Title VII, respectively.

Plaintiff alleged that her employment was terminated

on the pretext that her job was being eliminated, but

she later learned that it was not abolished, and in fact

had been filled by a younger person of the opposite sex.

The district court granted summary judgment for

defendant holding that plaintiff failed to timely file a

notice of intent to sue with labor department for her

ADEA claim, and failed to timely file her charge of

discrimination for her Title VII claim. The district

court also determined that plaintiff was not entitled to

equitable tolling based upon affidavits. 621 F.2d 1042

at 1044.

The Tenth Cireuit in Wilkerson stated that in

light of its decision in Dartt, supra, the issue of whether

plaintiff was entitled to equitable tolling of the running

of the statutory time period could not be resolved by

summary judgment, and that such resolution required

an evidentiary hearing. “Whether a case warrants a

finding of equitable tolling or estoppel almost

invariably involves the credibility of the various

witnesses. Credibility is difficult to determine trom

affidavits, or depositions.” 621 F.2d 1042 at 1045. The

Tenth Circuit in Wilkerson noted it was not suggesting

that there should be a finding of equitable tolling o

—_~

13

estoppel in this case, but simply holding that the issue

should be resolved after an evidentiary hearing.

In Cocke v. Merrill Lynch & Co., 817 F.2d 1559

(lith Cir. 1987), plaintiffs ADEA action was dismissed

in summary judgment for defendant employer because

he failed to file a timely charge with the EEOC within

the statutory filing period. The district court also

determined that equitable tolling was _ unjustified

because when plaintiff received notice of termination,

he was cognizant of his ADEA rights, and was

suspicious that he was the subject of discriminatory

conduct. In the notice of termination, the defendant

represented that it would try to find another position in

the company for him.

The Eleventh Circuit in Cocke reversed the

district court. It described the standard for equitable

modifications and tnat summary judgment is often

inappropriate when tolling is at issue in an ADEA case,

citing, Reeb and Naton, supra. 817 F.2d 1559 at 1561.

It further stated:

Applying these principles, the Court holds that

while the employer is actively trying to find a

position within the company for the employee,

the 180-day filing period of section 626(d)(1) is

equitably tolled until such time as it is or should

be apparent to an employee with a reasonably

prudent regard for his rights that the employer

has ceased to actively pursue such a position.

This court's application of equitable tolling to the

situation here is in harmony with the ADEA’s

purpose of facilitating informal conciliation.

It is too much for the law to expect an employee

to sue his employer for age discrimination at the

same time he is led to believe the employer is

trying to place him in another job. The district

court here, in holding the facts do not justify

equitable tolling, placed too little weight on this

practical situation. Although plaintiff was

suspicious that the reason he had not been

relocated prior to receiving notice of termination

was because of his age, he may well have been

justified in waiting before resolving that

suspicion into a fact he should act upon during

the time the employer made a good faith effort

to relocate him. At least the situation presents a

triable fact which cannot be disposed of on

summary judgment

817 F.2d 1559 at 1561-1562.

In Pearson _v. Macon-bibb County Hospital

Authority, 952 F.2d 1274 (11th Cir. 1992), plaintiff, a

black female nurse, sued defendant employer for

unlawful termination in violation of Title VII, among

other claims. On October 16, 1985, defendant informed

plaintiff that it decided to terminate her employment,

but gave her the option to resign and seek employment

at another hospital or apply for a transfer to another

section within the hospital. If plaintiff refused either

option, she would be terminated. Plaintiff advised

defendant that she wished to seek a transfer to another

hospital section and sought a position in the hospital

Emergency Center but was told there was no opening

available in that area. When offered a position within

20

the Urgent Care Position, plaintiff declined.

Thereafter, plaintiff took a medical leave of absence,

and was ultimately administratively terminated on

January 21, 1986. Plaintiff filed her discrimination

charge with the EEOC on April 28, 1986, 194 days after

the notice of termination.

The district court in Pearson entered summary

judgment against plaintiff as to her Title VII claim. It

found that she failed to timely file her claim with EEOC

within the 180 days of the alleged unlawful employment

practice per 42 U.S.C. § 2000e-5(c). The Eleventh

Circuit in Pearson determined that as the plaintiff was

invited to seek a transfer as an alternative to

with

}

termination, there are material issues of fact

respect to the issue of equitable tolling of the 180-day

filing period. Thus, there needed to be a trial on the

issue of availability of equitable tolling on the facts. 952

K’.2d 1274 at 1270-1280, citing, Cocke and Reeb, supra.

In Stewart v. Booker ‘TI. Washington Insurance,

232 F.3d 844 (11th Cir. 2000), the plaintiff claimed that

defendant-employer discriminated against her by

transferring, terminating, and failing to rehire her on

account of her sex and In retaliation for having filed a

previous charge with the FEOC. Defendants

contended that plaintiff received notice of her

termination in May 1997 when she learned that

employer's radio stations would be sold at which time

all employees would be terminated. Plaintiff testified

by affidavit that during the sumer and fall of 1997

after defendant announced that its radio stations would

be sold, many employees were offered interviews by

the new owners. Plaintiff believed that she was not

oftered an interview because she believed she would

2]

continue working for defendant’s affiliated companies.

3y exit interview on November 3, 1997, plaintiff was

told she was being terminated and her last day of work

was November 21, 1997.

The district court agreed with defendant that

plaintiff received notice of her termination in May 1997,

therefore she did not file a charge with the FEOC

within 180 days of the alleged unlawful practices, as

required by 42 U.S.C. § 2000e-5(e)(1).

The Eleventh Circuit in Stewart determined

that the district court erred in determining that

plaintiffs EEOC charge of discriminatory and

retaliatory termination was untimely filed and

therefore also erred in granting summary judgment to

the defendants. ‘The defendants did not present any

clear evidence that the decision to terminate plaintiff

was made or communicated to her before November 20,

1997. Moreover, the district court improperly

discredited plaintiff's testimony that she was never told

before November 20, 1997 that she was or would be

terminated. Since the charge filing period on a

termination claim does not begin to run until an

employee is told that she is actually being terminated

and not that she might be terminated if future

contingencies occur, and plaintiff filed a charge with the

EEOC within 180 days of November 20, 1997, the

district court erred in granting summary judgment to

the defendants. 282 F.8d 844 at 848.

Also, the Eleventh Circuit in Stewurt noted that

bused on the testimony of the president of the

defendant companies, rather than establishing that

defendants’ employees, presumably including: plaintiff,

99

were unconditionally told in May 1997 that they would

be terminated, it appeared that the employees were

told in a general meeting that defendants were

concerned that the employees’ jobs may be in danger,

but that nothing was definite. Although plaintiff may

have had a reason, based on the May 1997 meeting, to

suspect that she might be terminated as a result of the

sale of the stations, this was not enough to start the

charge filing period running. The 180-day period did

not run until plaintiff is told that she is actually being

terminated, not that she might be terminated if future

contingencies occur. 232 F.3d 844 at 849 ; see also,

Wright v. AmSouth Bancorporation, 320 I°.38d 1198

(11th Cir. 2003)(In an ADEA case, when an employee is

left simply to infer and deduce that he may be

terminated from the surrounding events, no

unequivocal communication of an adverse employment

decision has occurred; a plaintiff must be told that he is

actually being terminated before the 180-day filing

period begins to run.); Loe v. Heckler, 768 F.2d 409, 421

(D.C. Cir. 1985)(“To insist that plaintiff have

anticipated her employer’s dishonoring its Title V11

commitment would require that we attribute either the

vision of Cassandra to employees or universal bad faith

to employers. Title VII does not mandate preemptive

strikes as a precondition to judicial oversight of

subsequent misconduct.”)

This Court’s recent holdings in National

Railroad Passenger Corporation v. Morgan, 536 U.S.

101, 158 L.Ed. 2d 106, 122 8.Ct. 2061 (2002) and

Ledbetter _v. Goodyear Tire & Rubber Co., 550 U.S.

O18, 127 S.Ct. 2162, 167 L.Ed. 2d 982 (2007), also

support Petitioner's position that the notification of

discharge test articulated in the Rieks and Chardon

y9

23

should be revisited. In the Morgan holding, this Court

... Each discrete discriminatory act starts a new

clock for filing charges alleging that act. The

charge, therefore, must de filed within the .. .

300-day time period after the _ discrete

discriminatory act occurred. The existence of

past acts and the employee’s prior knowledge of

their occurrence, however, does not bar

employees from filing charges about related

discrete acts so long as the acts are

independently discriminatory and_ charges

addressing those acts are themselves timely

filed. Nor does the statute bar an employee from

using the prior acts as background evidence in

support of a timely claim.

As we have held, however, this time period for

filing a charge is subject to equitable doctrines

such as tolling or estoppel.

Discrete acts such as termination, failure to

promote, denial of transfer, or refusal to hire are

easy to identify. Each incident of discrimination .

constitutes a separate actionable ‘unlawful

employment practice.’ Morgan can only file a

charge to cover discrete acts that ‘occurred’

within the appropriate time period.

936 U.S. 101 at 113-114 (citations omitted).

24

Further, in Ledbetter, this court stated: “{A]

freestanding violation may always be charged within its

own charging period regardless of its connection to

other violations. “ 127 8.Ct. 2162 at 2174.

Thus, it would appear that while lower federal

courts are using the doctrines of equitable tolling and

estoppel to mitigate the harsh effects of the Ricks and

Chardon rules, this Court has held that there may

multiple events which may be used to measure the

statute of limitation effect.

B. State Court Rejection of the Ricks and

Chardon Test

The Hawaii Supreme Court would appear to be

one of the first state courts to reject the netification of

termination test articulated by the Ricks and Chardon

cases. In Ross _ v. Stouffer Hotel Company (Hawaii)

Ltd., Inc., 76 Haw. 454 (1994), the Plaintiff claimed that

he was the victim of marital status discrimination. The

employer argued that the Plaintiff was not subjected to

marital status discrimination and further argued that

the Plaintiffs complaint to the State Department of

Labor and Industrial Relations was untimely. The

Hawaii Supreme Court rejected the employer’s

argument that the Hawaii Supreme Court adopt the

Ricks and Chardon test.

The Hawaii Supreme Court rejected the Ricks

test stating:

A bright lne rule that the filing Period

commences on the date of actual discharge fairly

accommodates the interests of both employees

29

and employers. On the one hand, such a rule

favors adjudication of the merits of HRS §$ 375-2

claims. We think it fair to say that many, if not

most, employees become aware of and begin to

pursue legal remedies for unlawful discharge

only after they have actually been dismissed.

Were the time for filing an administrative

complaint to begin before that, 7.¢., upon

notification that the employer intended to

discharge an employee, it is likely that many

employees would have little or, perhaps, no time

left to invoke the protections conferred by Part I

of HRS Chapter 378 following an unlawful

discharge. We think a construction of HRS §

378-4(c) favoring adjudication on the merits is

more consistent with the remedial purposes of

Part I of HRS Chapter 378 than one likely to bar

potentially meritorious claims. As we said in

Puchert v. Agsalud, 67 Haw. 25, 677 P.2d 449

(1984), appeal dismissed, 472 U.S. 1001, 105 S.

Ct. 2698, 86 L. Ed. 2d 710 (1985), in construing

HRS § 378-83(b) (1985), which establishes the

time periods within which an employee must file

an administrative complaint for wrongful

discharge or suspension in violation of HRS §

378-32 (2):

The construction of this section allowing a

hearing on the merits and providing the

employee with the avenue by which he

may be afforded a remedy for the

violation of his rights would be more

consonant with the legislative enactment

of remedial social legislation for workers

than would a technical reading which

26

would deny relief without an opportunity

to be heard.

On the other hand, our reading of HRS $§

878-4(c) does not mean that employers

will be forced to defend against large

numbers of "stale" claims. The period

between notice of and actual discharge is

ordinarily relatively short. We think it

unlikely that many claims will become

stale in the interim. In addition, because

an employer would know ~--_ and,

presumably, control -- when it notified an

employee of his or her impending

discharge, nothing would prevent it from

taking steps to protect against the

problems normally associated with stale

claims.

Finally, a rule that the filing period

commences on the date of actual

discharge, like any bright line rule, has

the virtue of simplicity. Because it

removes any doubt about when the filing

period begins, it has the beneficent effect

of avoiding the protracted and expensive

litigation over the precise date and

adequacy of an employer's notice of

terminatien that would inevitably result if

we concluded that the date of notice

triggered the filing period.

76 Haw. 454 at 461-462

ra |

The California Supreme Court in Romano _v.

Rockwell International, Inc., 14 Cal. 4th 479, 926 P.2d

1114 (1996) would appear to be the next major state

court to reject the Ricks rule. In Romano, the

employee, in 1988, was advised his second level

supervisor wanted his termination. The employee

agreed to the employer’s terms that the termination

would not take place until the employee qualified for

full retirement in 1991. The employee resigned as

agreed in 1991 and shortly filed a complaint for age

discrimination.

Analyzing the Plaintiff's claim as implicating

contractual, tort and statutery consideration, the

California Supreme Court held that the date of

termination and not notification of termination, was the

date that the statute of limitations started to run.

Rejecting the employer’s argument that the Court

should adopt the Ricks/Chardon rule, the Court stated

that it was not bound by the Ricks/Chardon rulings in

interpreting California law. As a matter of public

policy, the Court stated:

As we already have observed, the rule we

propose to adopt does not burden employers

unduly, because they have control over the date

of notification of termination as well as the date

of actual termination. Employers who recognize

that the statute of limitations begins to run at

the time of termination will have the ability to

establish a record at the time of notification of

discharge, demonstrating the propriety of the

termination. Accordingly, the purpose of the

statute of limitations, to protect against stale

claims as to which evidence may be lost or

28

memories faded, would be served adequately by

the rule proposed. Nor do we believe it likely

that such a rule will discourage employers from

offering generous severance packages. We

perceive minimal connection between severance

benefits and the statute of limitations, apart

from a hope on the part of the employer that the

severance package will forestall any claim of

wrongful termination.

14 Cal. 4th 479 at 500

Acknowledging that the majority of State courts

that have considered the matter have adopted the

Ricks/Chardon test, the Court of Appeals of Maryland,

in Haas v. Lockheed Martin Corporation, 396 Md. 469,

914 A.2d 735 (2007), adopted the rule that a

“‘discharge’ occurs upon the actual termination of an

employee, rather than upon notification that such a

termination is to take effect at some future date.

Stating that many of the state courts which have

adopted the Ricks/Chardon test, have done so with

little analysis or discussion, the Court found

persuasive the reasoning found in the opinions from

Hawaii, California and New Jersey.

Stating that consultation with several popular

dictionaries reveal that the commonly understood,

plain meaning of “discharge” concurs with the view

that a discharge occurs from the time the employee is

vterminated actually from employment, the Maryland

Court of Appeal agreed with the decisions articulated

by the California, New Jersey and Hawaii Supreme

Court. As a matter of judicial policy, the Court stated

that the date of termination rule would prevent

PAS)

employees from suing their employers while employed,

stating that employees would be hesitate to do so,

because the discharge is so far in the future, and that

such employees “are apprehensive about suing a party

with whom they currently have, and may try to

maintain, a job.” 396 Md. 469 at 497.

Accordingly, the holding of the Ninth Circuit

Court of Appeal holding that Petitioner did not timely

file her complaint of discrimination was wrongly

decided and should be reviewed.

30

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be granted.

Respectfully submitted:

Clayton C. [kei

Counsel of Record

Law Office of Clayton C. Ikei

1440 Kapiolani Blvd. Suite 1203

Honolulu, Hawaii 96814

(808) 533-3777

la

No. 08-17166

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANNON C. HORITA, Plaintiff - Appellant,

v.

KAUAT ISLAND UTILITY COOPERATIVE, a

Hawaii corporation, Defendant - Appellee.

October 14, 2009, Argued and Submitted, Honolulu,

Hawati

November 9, 2009, Filed

NOTICE: PLEASE REFER TO FEDERAL RULES

OF APPELLATE PROCEDURE RULE ) 382.

GOVERNING THE CITATION TO UNPUBLISHED

OPINIONS.

Appeal from the United States District Court for the

District of Hawaii. D.C. No. CV-07-0357-JMS-BMK. J.

Michael Seabright, District Judge, Presiding.

COUNSEL: For SHANNON D. HORITA, Plaintiff -

Appellant: JERRY P.S. CHANG, Clayton Ikei, LAW

OFFICE OF CLAYTON C. IKEI, A Law Corporation,

Honolulu, HI.

For KAUAT [SLAND UTILITY COOPERATIVE, a

Hawaii corporation, Defendant - Appellee: Wayne 5S.

Yoshigal, Esquire, Attorney, Tamara M. Gerrard,

Esquire, Attorney, Kendra K. Kawai, Esquire,

Attorney, Torkildson, Katz, Moore, Hetherington &

Harris. Honolulu, HI.

Za

Before: BEEZER, GRABER, and FISHER, Circuit

Judges.

MEMORANDUM *

Plaintiff Shannon C. Horita appeals the district court's

decision to grant Defendant Kauai Island Utility

Cooperative's motion for summary judgment in this

employment-related diversity case.

We review de novo the district court's grant of

summary judgment. Dretrich v. John Ascuaga's

Nugget, 548 F.3d 892, 896 (9th Cir. 2008).

1. The district court properly held that Plaintiff had

failed to file a charge of discrimination with the Equal!

Employment Opportunity Commission within 300 days

of any discrete act of discrimination. 42 U.S.C. § 2000e-

5(e)(1). The latest date on which Plaintiff learned

definitively of her impending termination was October

5, 2005, the date of a second letter Defendant sent to

Plaintiff. That letter clearly and unequivocally told

Plaintiff that her position would be eliminated and that

she could be re-employed by Defendant through a 60-

day bidding process. The letter dated October 5, 2008, if

not the earlier letter relaying the same message on

September 28, 2005, was the adverse employment

action that triggered the running of the 300-day statute

of limitations. See De]. State Coll. v. Rieks, 449 U.S. 250,

258, 101 8. Ct. 498, 66 L. Ed. 2d 481 (1980) (holding that

the date on which the plaintiff learned of the

defendant's denial of tenure, not the date on which the

plaintiff became unemployed, was when the statute of

limitations began to run). The fact that Plaintiff did not

have evidence of a discriminatory motive until later

da

does not change the outcome under a straightforward

application of the statute of limitations. See id. (holding

that "the only alleged discrimination occurred--and the

filing limitations periods therefore commenced--at the

time the [adverse employment action] was made and

communicated to [the plaintiff]").

2. We do not reach Plaintiff's claims of equitable tolling

or equitable estoppel, which could toll the running of

the 300 days until mid-December when Plaintiff claims

she first learned of discriminatory intent (and thus of

her claim). The facts on which Plaintiff relies to make

these arguments on appeal are in the record, but she

did not make these claims explicitly to the district

court. Had she done so, Defendant might have

introduced evidence to dispute the equitable claims.

Because Plaintiff failed to raise these claims below, we

do not reach them now. Singleton v. Wulff, 428 U.S.

106, 120, 96 S. Ct. 2868, 49 L. Ed. 2d 826 (1976).

5. Plaintiff's argument that her claims for intentional or

negligent infliction of emotional distress are subject to

a two-year statute of lhmitations also fails. To the

extent that Plaintiff is seeking to raise claims for

intentional or negligent infliction of emotion distress for

the first time on appeal, her claims are waived. /d.; see

also Hac v. Univ. of Haw., 102 Haw. 92, 73 P.3d 46, 58-

59 (Haw. 2003) (holding that a tort claim for intentional

infliction of emotional] distress is distinct from a claim

for emotional distress damages under the employment

discrimination statute). To the extent that Plaintiff is

arguing that the 180-day administrative filing period

applicable to claims under Hawaii Revised Statutes

section 378-2 does not apply when the plaintiff seeks

emotional distress damages as a remedy for a violation

4a

of section 578-2, her argument fails. Notwithstanding

the remedies sought, claims under section 378-2 are

governed by a_ 180-day administrative filing

requirement. Haw. Rev. Stat. § 368-11(c)(1); Furukawa

Vv. Honolulu Zoological Soc'y, 85 Haw. 7, 986 P.2d 648,

654 (Haw. 1997).

AFFIRMED.

tk ootnotes

‘This disposition Is nol appropriate for publication and is

not precedent except as provided by Ninth Circuit

Rule 36-3.

cr

oa

Civil No. 07-00357 JMS/BMK

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWATI

SHANNON BORITA, Plaintiff,

KAUAI ISLAND UTILITY COOPERATIVE,

Defendant.

Filed 08/22/08

J. Michael Seabright, United States District Judge.

ORDER GRANTING DEFENDANT'S MOTION

FOR SUMMARY

l. INFRODUCTION

Plaintiff Shannon Horita (“Plaintiff”) sued her former

employer Defendant Kauai Island Utility Cooperative

(“Defendant” or “KIUC”) for violations of Title VII and

Hawaii Revised Statutes (“HRS”) § 378-2, alleging that

she was demoted and terminated based on race,

national origin, and sex. Defendant moves for summary

judgment on the grounds that Plaintiff failed to timely

exhaust administrative remedies, and that there is no

evidence of discriminatory animus linked to any

employment decision relating to Plaintiff. Based on the

following, the court GRANTS Defendant’s motion.

Il. BACKGROUND

ba

Plaintiff, a Japanese-American female, was employed

by Defendant as an administrator in its Human

Resources department. Although Plaintiff began as a

temporary clerk in 2004, she applied for and was offered

a full time position as Human Resources Administrator

on June 10, 2005 at a salary of $50,042 per year at grade

level 9. The offer was later revised on June 30, 2005,

and Plaintiffs salary was reduced to $40,709 by KIUC

CEO Dutch Achenbach (“Achenbach”). In August

2005, Plaintiff received a positive job performance

review from Darney Proudfoot, the head of the Human

Resources department.

In April 2005, Achenbach announced that the National

Rural Electric Cooperative Association (“NRECA”)

would be conducting an organizational assessment of

KIUC. On September 2, 2005, Achenbach advised that

the Human Resources department would be outsourced

at the recommendation of NRECA, and that two

department positions those held by Plaintiff and

Marcia Shimokawa -- would be downgraded. Pl.’s Decl.

{ 17. Achenbach further explained that if the Human

Resources Department remained in-house instead of

being outsourced, Piaintiff and Shimokawa could regain

their jobs. Id. According to Plaintiff, she “received a

letter dated September 28, 2005 from Achenbach,

informing me that my position would be eliminated on

December 31, 2005; thus | would be laid off effective

January 1, 2006.” Id. 4 20. On October 5, 2005,

Achenbach sent Plaintiff another letter with the subject

line “Employment status,’ which stated:

Kiffective January 1, 2006, your current position

will no longer exist. We are offering you a

position in the Menmimer Services department as

Ta

an Administrative Assistant. Your monthly

salary will remain at $3,392.42 at grade level 5...

If you decide to accept the position of

Administrative Assistant, your employment date

in this position will be on October 11, 2005. If

you do not accept this position, you are free to

bid for another vacancy in the company prior to

being displaced on January 1, 2006.

Pl.’s Ex. J. Plaintiff responded to the letter in a memo

to Achenbach stating: “Thank you for your memo of

October [5], 2005, informing me that my current

position will no longer exist as of January 1, 2006,” and

rejecting the position offered. Pl.’s Ex. K. After this

notice, Plaintiff did not apply for any open positions at

KIUC, either in the Human Resources department or

elsewhere at the company. Def.’s Ex. A at 103. In the

end, KIUC did not outsource the Human Resources

department. Pl.’s Decl. 4 20.

On October 12, 2005, Randy Hee (“Hee”), Chief

Operating Officer of KIUC, directed Plaintiff and

Shimokawa to relocate their work stations to an open

reception area in order to make room for the legal

department. On October 24, 2005, Hee informed

Plaintiff that she would report to the new Utility

Attorney,

Karen Baldwin (“Baldwin”), effective October 31, 2005.

According to Plaintiff, on November 2, 2005, Baldwin

took her around the workplace and pointed out what

she wanted cleaned in the employee lounge, women’s

locker room, and kitchen area. Id. § 27. When Baldwin

later asked her if the work had been done, Plaintiff

replied that she had more important work to do, and

3a

that janitorial work was not part of her normal job

duties. Id.

On November 18, 2005, Plaintiff received a written

warming from Baldwin for being unfriendly and

unhelpful to employees, and for refusing to update and

revise material in the lunch room. PIl.’s Ex. L.

According to Plaintiff, she did not receive a prior verbal

warning, and the warning letter placed her one step

away from being terminated for cause. Pl.’s Decl. | 28.

The next day, Plaintiff saw her doctor for anxiety

symptoms she developed during November 2005, id. ¥

30, and submitted a physician’s note indicating that she

was unable to work from November 21, 2005 to January

3, 2006. Id. ¥ 31; Pl.’s Ex. M.

Plaintiff received a letter from Baldwin dated

December 20, 2005, stating:

As Mr. Achenbach informed you in his letter of

September 28, 2005, your position in Human

Resources will be eliminated December 31, 2005.

Therefore effective January 1, 2006, you will be

laid off. You were offered the opportunity to

apply and interview for various open positions.

You have chosen not to apply for any positions.

Pl.’s Ex. OQ. Plaintiffs employment at KIUC was

terminated on January 1, 2006.

Plaintiff claims that the adverse employment actions

she suffered were the result of Achenbach’s

discriminatory animus against Asians and females.

Plaintiff claims that when her salary and grade were

Ga

downgraded, Achenbach told Shimokawa that Plaintiff

“walked like a sumo person.” Pl.’s Decl. 4 12. Plaintiff

also claims that only her position and Shimokawa’s

position were downgraded in September 2005, and that

both are females of Japanese descent. According to

Plaintiff, in September 2005, Anne Barnes told

Shimokawa that Achenbach told her that he did not like

Japanese. Id. § 21. Barnes also states that Achenbach

once referred to another KIUC employee, Faye

Akasaki, “as a slanty-eyed Jap. bitch.” Pl.’s Ex. Y at 17.

According to William Schmidt, formerly Chief Financial

Officer of KIUC, Achenbach was “difficult to support,

because of the constant threats and intimidation he

projected towards employees of Asian descent and

women,” that “[oJ]n a daily basis, {he} heard Achenbach

use racial and sexist comments about people,” and that

Achenbach directed the “racial slurs primarily against

the Japanese and women.” Schmidt Decl. 44 10, 13, 14.

Plaintiff does not allege that Baldwin ever made any

racist or sexist comments.

Plaintiff filed a charge of discrimination with the Equal

Employment Opportunity Commission (“EEOC”) on

September 21, 2006. PIl.’s Ex. X. Plaintiff filed her

Complaint in this court on July 8, 2007, alleging

violations of Title VII and HRS § 378-2 based on race,

national origin, and sex discrimination. Defendant filed

a Motion for Summary Judgment on May 21, 2008.

Plaintiff filed an Opposition on August 1, 2008, and

Defendant filed a Reply on August 8, 2008.

A hearing was held on August 19, 2008.

Ill. STANDARD OF REVIEW

10a

Summary judgment is proper where 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). The burden initially lies with the moving party to

show that there is no genuine issue of material fact.

T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,

809 F.2d 626, 6380 (9th Cir. 1987). Nevertheless,

“summary judgment is mandated if the non-moving

party ‘fails to make a showing sufficient to establish the

existence of an element essential to that party’s case.”

Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252,

1258 (9th Cir. 1999) (quoting Celotex Corp. v. Catrett,

A477 U.S. 317, 322 (1986)).

An issue of fact is genuine “if the evidence is such that a

reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc.,

A477 U.S. 242, 248 (1986). An issue is material if the

resolution of the factual dispute affects the outcome of

the clairn or defense under substantive law governing

the case. See Arpin v. Santa Clara Valley Transp.

Agency, 261 F.3d 912, 919 (9th Cir. 2001). When

considering the evidence on a motion for summary

judgment, the court must draw all reasonable

inferences on behalf of the nonmoving party.

Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.

574, 587 (1986).

IV. ANALYSIS

A. Timeliness of Plaintiffs kK EOC Complaint

Plaintiff must exhaust her administrative remedies by

timely filing a claim with the EEOC prior to filing suit

in federal court. 42 U.S.C. § 2000e-45(b); Vasquez v.

lla

County of L.A., 349 F.3d 634, 644 (9th Cir. 2003); B.K.B.

v. Maui Police Dep’t, 276 F.3d 1091, 1099 (9th Cir. 2002);

Sosa v. Hiraoka, 920 F.2d 1451, 1456 (9th Cir. 1990).

“Discrimination claims under Title VII ordinarily must

be filed with the EEOC within 180 days of the date on

which the alleged discriminatory practice occurred.

However, if the claimant first ‘institutes proceedings’

with a state agency that enforces its own discrimination

laws -- a so-called ‘deferral’ state -- then the period for

filing claims with the EEOC is extended to 300 days.”

Laquaglia v. Rio Hotel & Casino, Inc., 186 F.3d 1172,

1174 (9th Cir. 1999) (citations omitted); see also 42

U.S.C. § 2000e-5(e)(1).

Hawaii is a deferral state. See 29 C.F.R. §§ 1601.80,

1601.13; Beaulieu v. Northrop Grumman Corp., 161 F.

Supp. 2d 1135, 1141 (D. Haw. 2000). Thus, because the

EEOC defers jurisdiction to the Hawaii Civil Rights

Commission (“HCRC”), the 3800-day period applies

“regardless of whether the complaint was first received

by the EEOC or the state.” Bouman v. Block, 940 F.2d

1211, 1220 (9th Cir. 1991). Because Plaintiff filed a

complaint with the EEOC on September 21, 2006, the

300-day statute of limitations bars claims that accrued

before November 24, 2005.!

Defendant argues that Plaintiff complains of no acts of

discrimination that fall within the 300-day period.

Where a _ plaintiff alleges “a series of discrete

discriminatory acts,” each of which was “independently

identifiable and actionable,” the plaintiff must timely

file an EEOC charge with respect to each discrete

violation. Ledbetter v. Goodyear Tire & Rubber Co.,

12758. Ct. 2162, 2175-76 (2007). Where a plaintiff alleges

“a single wrong consisting of a succession of acts,” at

12a

least one of the discriminatorily-motivated acts

predicate to the claim must have occurred within the

limitation period. Id. at 2175 n.7. Ledbetter

“reiterated the distinction between a_ continuing

violation and continual effects when it held that

‘current effects alone cannot breathe life into prior,

unchanged discrimination; . . . such effects in

themselves have no present legal consequences.”

Gareia v. Brockway, 503 F.3d 1092, 1098 (9th Cir.

2007)(quoting Ledbetter, 1275S. Ct. at 2169).

In this case, none of the acts alleged to have been

discriminatory occurred within the limitation period,

including Plaintiff's reduction in pay on June 30, 2005,

the September 2005 downgrade of her position,

notification on October 5, 2005 that her position would

be eliminated effective January 1, 2006, the October 12,

2005 relocation of her workspace, and the November 18,

2005 disciplinary action. Plaintiff claims, however, that

the termination notice dated December 20, 2005 stating

that her position had been eliminated and that she

would be laid off is a diserete act that falls outside the

limitations period. Defendant argues that because

Plaintiff was notified that her position would be

eliminated in the October 5, 2005 memo, her claim

accrued on that date.

Delaware State College v. Ricks, 449 U.S. 250, 259

(1980), held that Title VII’s “limitations period

commence[s] to run when the [employement] decision

was made and [the employee] was notified,” rather than

the date on which the employee’s position ended. In

ticks, a college teacher who had been denied tenure

brought a Title VII action contending that the

limitations period did not begin to run until his

13a

employment contract expired and his employment

terminated. The Supreme Court rejected the

employee’s argument, concluding instead that the

limitations period began to run when the employee was

earlier told that he had been denied tenure. Ricks

identified the alleged act of discrimination as the date

the “tenure decision was made and communicated to”

the employee and that the “termination of employment

at Delaware State is a delayed, but inevitable,

consequence of the denial of tenure.” Ricks, 449 U.S. at

257-58. The Court emphasized that:

the only alleged discrimination occurred -- and

the filing limitations’ periods — therefore

commenced -- at the time the tenure decision was

made and communicated to Ricks. That is so

even though one of the effects of the denial of

tenure — the eventual loss of a teaching position -

- did not occur until later. The Court of Appeals

for the Ninth Circuit correctly held, in a similar

tenure case, that “[t]he proper focus is upon the

time of the discriminatory acts, not upon the

time at which the consequences of the acts

became most painful.” Abramson v. University

of Hawaii, 594 F.2d 202, 209 (1979) (emphasis

added); see United Air Lines, Inc. v. Evans, 43]

U.S., at 558, 97 S. Ct, at 1889. It is simply

insufficient for Ricks to allege that his

termination “gives present effect to the past

illegal act and therefore perpetuates the

consequences of forbidden discrimination.” Id. at

557, 97 5. Ct. at 1888. The emphasis is not upon

the effects of earlier employment decisions;

rather, it “is [upon] -whether any present

Violation exists.”

l4a

Id. at 258.

Following Ricks, the Ninth Circuit held in Aronsen v.

Crown Zellerbach, 662 F.2d 584, 593 (9th Cir. 1981),

that the “inquiry for purposes of determining when the

limitations period begins to run must center on the date

when the employee has notice of the unlawful act;

neither cessation of work nor official termination noted

on company personnel records is singularly relevant to

this inquiry.” Aronson did not read into Ricks “a

requirement that employers provide express written

notice of termination in every case,” but observed that

“an employer’s letter to Ricks provided explicit notice

that his employment would end upon (the terminal

contract’s) expiration.” Id. at 594 (citation and

quotation signals omitted).

Finally, the Ninth Circuit recently addressed accrual of

claims for statute of limitations purposes in Lukovsky

v. City & County of San Francisco, ---F.3d ---, 2008 WL

3091265 (9th Cir. Aug. 7, 2008), stating “[alecrual is the

date on which the statute of limitations begins to run;

under federal law, a claim accrues when the plaintiff

knows of or has reason to know of the injury which is

the basis of the action.” Lukovsky, 2008 WL 3091265,

at *2 (citation and quotation signals omitted). The

court further found that, consistent with Ricks, ‘the

claim accrues upon awareness of the actual injury, i.e.,

the adverse employment action, and not when the

plaintiff suspects a legal wrong.” Id. at *3-4.

Plaintiff does not contest that she was first informed tn

September and October 2005 -- outside of the

limitations period -- that her position would be

eliminated and that she would no longer have a job. Cf.

lda

Aronsen, 662 F.2d at 594 (concluding that where the

employee denied that he was informed of his

termination before the limitations period ran, “a factual

dispute exists on the issue whether [the employee]

knew or should have known .. . that he was being

terminated or that he was being subjected to an

unlawful practice”). Plaintiff knew by at least October

5, 2005 that her employment would cease on January |,

2006 because her position was eliminated and she

refused Defendant’s offer of another position. Thus,

she had actual knowledge of the adverse employment

action by October 5, 2005.

The court rejects Plaintiff's argument that her EEOC

complaint was timely as to the December 20, 2005

notice based on Achenbach’s September 2, 2005

statements that “if Human Resources were to remain

in-house we would be able to get our jobs back.” PIl.’s

Decl. { 17. Plaintiff admits that she understood, in fact,

that she would be laid off based on Achenbach’s

subsequent September 28, 2005 letter:

I received a letter dated September 28, 2005

from Achenbach, informing me that my position

would be eliminated on December 31, 2005; thus

1 would be laid off effective January 1, 2006.

Id. § 20. There is no indication that the elimination of

Plaintiff's position was related to the Human Resources

department being outsourced. Further, the October 5,

2005 letter from Achenbach, with the subject line

“Employment status,” states: “effective January 1.

2006, your current position will no longer exist,” with

no mention of outsourcing as the cause of her position

being eliminated. Pl.’s Ex. J. Thus, with respect to the

16a

September 28, 2005 and October 5, 2005 letters, there is

no evidence that Plaintiffs termination was conditioned

upon whether KIUC outsourced the Human Resources

department. Further, the notifications on September

28, 2005 and October 5, 2005 occurred after

Achenbach’s statements on September 2, 2005. Thus,

Plaintiff knew or should have known of the injury

caused by her termination when she was first notified

on September 28, 2005 and October 5, 2005, regardless

of the earlier September 2, 2005 statements about

outsoureing.

Also without merit is Plaintiff's argument that because

she could have applied for jobs up until December 31,

2005, her injury did not occur until her position was

actually terminated on that date. Although Plaintiff

received her final termination notice on December 20,

2005, the “inquiry for purposes of determining when the

limitations period begins to run must center on the date

when the employee has notice of the unlawful act;

neither cessation of work nor official termination noted

on company personnel records is singularly relevant to

this inquiry.” Aronsen, 662 F.2d at 593. The October 5,

2005 letter offered Plaintiff a position in the Member

Services department, which she rejected. Id. Plaintiff

responded to the letter in a memo to Achenbach

stating: “Thank you for your memo of October [5], 2005,

informing me that my current position will no longer

exists as of January 1, 2006.” Pl.’s Ex. K._ Plaintiff

indicated that she might be willing to consider another

position in Human Resources, id., but admitted that she

did not apply fer any other positions at KIUC before

January 1, 2006. Def.’s Ex. A at 108. Plaintiff did not

apply for another position and she knew the

consequences of failing to do so; that is, she knew that

17a

she would be laid off on January 1, 2006 if she did not

apply for and accept another job at KIUC2 Even

though Plaintiff could have applied for another position

up to December 31, 2005, the fact remains that she was

told that her position was being terminated no later

than October 5, 2005. Thus, the possibility that Plaintiff

could have applied for another position in the future is

irrelevant.*

In sum, none of the discrete acts of discrimination

complained of by Plaintiff occurred within the 300-day

limitations period -- all occurred before November 25,

2005. Therefore, Plaintiffs claims are untimely for

failure to exhaust within the 300-day period. The court

GRANTS Defendant’s Motion for Summary Judgment

as to Plaintiff's Title VII claims.

B. Timeliness of Plaintiff's State Law Claim

The HCRC has a 180-day statute of limitations

provision for state law claims. See HRS §§ 368-11(c),

368-12; Ross v. Stouffer Hotel Co., 76 Haw. 454, 460,

879 P.2d 1087, 1048 (1994). A complaint alleging

unlawful discrimination must be filed “within 180 days

after either the occurrence of the alleged

discriminatory practice or the last occurrence in a

pattern of ongoing discriminatory practice.” Sam

Teague, Ltd. v. Haw. Civil Rights Comm'n, 89 Haw.

269, 276, 971 P.2d 1104, 1111 (1999). Plaintiff does not

contest Defendant’s showing that she did not timely file

a complaint within the 180-day period. The court

GRANTS Defendant’s Motion for Summary Judgment

on Plaintiffs HRS § 378-2 claim.

la

Because the court grants Defendant’s Motion for

Summary Judgment based on the federal and state

statutes of limitations, the court does not address

Defendant’s remaining arguments.

V. CONCLUSION

Based on the _ foregoing, the court GRANTS

Defendant's Motion for Summary Judgment on all

claims. The Clerk of Court is directed to close the case.

ITIS SO ORDERED.

Footnotes

]

1Although Plaintiffs brief states that she filed her

EEOC complaint on September 10, 2006, see Pl.’s Opp’n

12, she acknowledged at the August 19, 2008 hearing

that this was an error. Plaintiff agreed that the filing

date was September 21, 2008.

2kurther, despite Plaintiffs argument at the August

19, 2008 hearing, there is no evidence in the record that

Plaintiff was prevented from or unable to apply for

positions when she was out on sick leave beginning

November 21, 2005.

3 Plaintiff's reliance on National Railroad Passenyer

Corp. v. Morgan, 536 U.S. 101 (2002), is also misplaced.

Although Morgan held that the “existence of past acts .

does not bar employees from filing charges about

related discrete acts so long as the acts are

independently discriminatory and charges addressing

those acts are themselves timely filed,’ none of the

19a

discrete acts complained of by Plaintiff was timely filed.

Morgan, 536 U.S. at 113 (emphasis

added).

/s/ J. Michael Seabright

J. Michael Seabright

United States District Judge

20a

Filed: 12/22/2009

No. 08-17166

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SHANNON C. HORITA, Plaintiff - Appellant,

Vv.

KAUAI ISLAND UTILITY COOPERATIVE, a

Hawaii corporation, Defendant - Appellee.

October 14, 2009, Argued and Submitted, Honolulu,

Hawaii

November 9, 2009, Filed

ORDER

Before: BEEZER, GRABER, and FISHER, Circuit

Judges.

Judges Beezer and Graber have voted to deny the

petition for panel rehearing, and Judge [‘isher has

voted to grant it. Judges Graber and Fisher have voted

to deny the petition for rehearing en banc, and Judge

Beezer has so recommended.

The full court has been advised of the petition for

rehearing en banc, and no judge of the court has

requested a vote on it.

The petition for panel rehearing and petition for

rehearing en banc are DENIED.