567924 NO. 13-15452 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT AILEEN MARIANO, Plaintiff- Appellant, v. LIBERTY DIALYSIS-HA WAil, LLC, DBA LIBERTY DIALYSIS, Defendant - Appellee ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW Ail Civil No. ll-00652 LEK-BMK DEFENDANT -APPELLEE LIBERTY DIALYSIS-HAWAil, LLC DBA LIBERTY DIALYSIS'S ANSWERING BRIEF CORPORATE DISCLOSURE STATEMENT CERTIFICATE OF COMPLIANCE STATEMENT OF RELATED CASES CERTIFICATE OF SERVICE Case: 13-15452 08/09/2013 ID: 8738488 DktEntry: 15 Page: 1 of 58
Transcript
567924
NO. 13-15452
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AILEEN MARIANO, Plaintiff- Appellant,
v.
LIBERTY DIAL YSIS-HA WAil, LLC, DBA LIBERTY DIALYSIS,
Defendant - Appellee
ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAW Ail
MARRJONES & WANG A Limited Liability Law Partnership BARRY W. MARR MEGUMI SAKAE LEIGHTON M. HARA Pauahi Tower 1003 Bishop Street, Suite 1500 Honolulu, Hawaii 96813 Telephone: (808) 536-4900 Facsimile: (808) 536-6700
Attorneys for Defendant- Appellee LIBERTY DIAL YSIS-HA WAil, LLC. DBA LIBERTY DIALYSIS
I. STATEMENT OF JURISDICTION ............................................................. 1
II. STATEMENT OF ISSUES PRESENTED FOR REVIEW .......................... 1
III. STATEMENT OF THE CASE ..................................................................... 1
IV. STATEMENTOFFACTS ............................................................................ 2
A. Background of Liberty Dialysis .......................................................... 2
B. Plaintiffs Employment ....................................................................... 3
C. Plaintiffs Complaint Regarding Patient E and Liberty's Response .............................................................................................. 4
1. Plaintiff meets Patient E ........................................................... .4
2. Plaintiff complains about Patient E ........................................... 5
3. Plaintiffs other unreported interactions with Patient E .................................................................................... 7
F. The Hawaii Civil Rights Commission ("HCRC") dismisses Plaintiffs discrimination claim ......................................... 16
G. By September 2009, Plaintiff No Longer Needed Psychiatric Treatment ........................................................................ 16
V. SUMMARY OF THE ARGUMENT .......................................................... 17
VI. STANDARD OF REVIEW ......................................................................... 18
VII. ARGUMENT ............................................................................................... 19
A. The District Court Correctly Ruled That Defendant Was Entitled To Summary Judgment On Plaintiffs Sexual Harassment Claim ............................................................................. 19
1. The reported conduct was not severe or pervasive as a matter of law .................................................................... 19
2. Liberty's response was prompt and reasonable ...................... 23
3. Plaintiffs argument that the District Court improperly considered hearsay evidence in making her determination lacks merit... ............................................... 30
4. Plaintiffs spoliation argument is a red heiTing ....................... 31
B. The District Court Correctly Dismissed Plaintiffs NIED Claim ................................................................................................. 34
C. The District Court Properly Dismissed Plaintiffs liED Claim ................................................................................................. 38
H. Plaintiff Cannot Sustain Her Punitive Damages Claim ................... .40
VIII. CONCLUSION ............................................................................................ 41
Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912 (9th Cir. 2001) ................................................................................ 1
Black v. City & Cnty. of Honolulu, 112 F. Supp. 2d 1041 (D. Haw. 2000) ............................................................... 36
Clemmons v. Hawaii Med. Servs. Ass 'n, 273 F.R.D. 653 (D. Haw. 2011) ................................................................... 35,36
Coates v. Pac. Eng 'g, 71 Haw. 358,791 P.2d 1257 (1990) .................................................................. 35
De Vera v. Estate of Marcos, 496 Fed. Appx. 759, 2012 U.S. App. LEXIS 22472 (9th Cir. Oct. 24, 2012) ..................................................................................................... 32
Diaz v. Eagle Produce Ltd. P'ship, 521 F.3d 1201 (9th Cir. 2008) ........................................................................... 18
Doe Parents No. 1 v. State, 100 Haw. 34,58 P.3d 545 (2002) ...................................................................... 38
Dowkin v. Honolulu Police Dep 't, Civ. No. 10-00087, 2011 U.S. Dist. LEXIS 2011, at *31 (D. Haw. Sept. 2, 2011) ..................................................................................... 38
Defendant-Appellee Liberty Dialysis-Hawaii, LLC, dba Liberty
Dialysis ("Liberty" or "Defendant") agrees with Plaintiff-Appellant Aileen
Mariano's ("Plaintiff') Statement of Subject Matter Jurisdiction (diversity) and
Appellate Jurisdiction under 28 U.S.C. § 1291.
II. STATEMENT OF ISSUES PRESENTED FOR REVIEW
Whether the District Court properly granted summary judgment to
Defendant on Plaintiff's (1) sexual harassment claim under Haw. Rev. Stat.§ 378,
(2) state tort claims of intentional and negligent infliction of emotional distress,
and (3) punitive damages claim.
III. STATEMENT OF THE CASE
Plaintiff filed her Third Amended Complaint in Hawaii State Court on
August 12,2011. ER3, ER562. 1 The Third Amended Complaint sought relief on
nine causes of action, including the four raised on Appeal by Plaintiff. 2 On
1 References to "ER" herein are to the pages of the Appendix filed by Plaintiff. References to "SER" herein are to the pages of the Supplemental Appendix filed by Defendant.
2 Having failed to address her other causes of action on appeal, Plaintiff has abandoned them. Arpin v. Santa Clara Valley Transp. Agency, 261 F.3d 912,919 (9th Cir. 2001); see Humboldt v. Boeing Co., 305 F.3d 1004, 1012 (9th Cir. 2002) see also Opening Brief at 1, § II (Issue Presented). The abandoned causes of action include Assault and Battery, Sexual Assault, Failure to Investigate, Tort, Tortious Interference with Prospective Economic Advantage, and Retaliation.
absence, which lasted through September 3, 2009, when she voluntarily resigned
from Liberty. ER200, ER239, ER411-14.
C. PlaintifPs Complaint Regarding Patient E and Liberty's Response
Plaintiffs allegations in her lawsuit arise out of (1) the conduct of a
Liberty Patient ("Patient 'E"'4), (2) her complaint regarding Patient E's conduct,
and (3) Liberty's response to her complaint. Most of Plaintiffs current allegations
about Patient E's conduct were never reported to Libe1iy.
1. Plaintiff meets Patient E
Plaintiff met Patient E for the first time on November 10 when he was
her assigned patient. ER175, ER178. November 10 was the first and only time
Plaintiff cared for Patient E as her assigned patient. ER 191. Plaintiff alleges that
on November 10, Patient E engaged in inappropriate conduct, including grinning at
her "maliciously" as he said "blanket blanket," touching her covered arm three
times, and unlatching his belt as he grinned at her. ER 178-81, ER 193, ER248.
4 Patient E is also abbreviated as "C_" or "E_ C_" throughout the record. As a covered entity under the Health Insurance Portability and Accountability Act ("HIPAA"), Defendant sought to protect its patient's confidentiality in this litigation. Defendant requests that the Court not refer to Patient E by name in any Order it may issue.
Although Plaintiff now claims Patient E's behavior left her "really scared," she did
not file a complaint about Patient E's behavior on November 10. ER 181.
2. Plaintiff complains about Patient E
Despite Plaintiff's assertion that Patient E "really scared" her, when
Patient E came in for his next dialysis treatment two days later, on November 12,
Plaintiff voluntarily proceeded to complete his admissions process by taking his
height measurement. ER182-84. Plaintiff was the Charge Nurse that day (and not
his assigned nurse) and could have assigned the task of measuring Plaintiff's
height to another nurse or even a Hemodialysis Technician ("HT"). ER 183-84,
ER245-46, testimony of Plaintiff; ER529-30, Testimony of Nancy Aglibot, RN
("Aglibot"); ER499-500, Testimony ofDigna De Gula, HT ("De Gula"); ER556-
57, ER559, Natividad Dec. ,]2, Ex. V. Instead, Plaintiff chose to do it herself.
ER191.
After taking Patient E's height, Plaintiff filed a written complaint in
the form of an adverse event report ("AER") regarding Patient E's behavior.
ER173, ER174; see ER253-55 (AER). The entirety of Plaintiff's written
complaint reads as follows:
567924
While I am taking [Patient E's] height he touched my shoulder and my back. He touched me many times too when I admitted him 11110/08. I already warned him not to touch anybody but he did it again today.
AER on November 17.5 ER249. Plaintiff further contends that during the
November 17 conversation, Natividad told Plaintiff she read Plaintiff's AER and
reviewed Patient E's chart, but did not see a record of a mental disorder. ER250.
During this conversation, Plaintiff did not tell Natividad that Patient E engaged in
conduct beyond what was written in her AER, including that he touched her breast.
ER455.
On November 19, Natividad informed Social Worker Auyong about
Plaintiff's AER. ER462-63. Auyong immediately reached out to the Western
Pacific Renal Network ("Network 17")- an agency contracted by the government
to work with CMS and local state depmiments of health to oversee dialysis care to
ensure quality patient care and compliance with patients' rights- and reported the
contents of Plaintiff's complaint.6 ER466, ER471, ER474, ER477-78, ER485,
ER495. Because Patient E had no record of past behavioral issues, Network 17
informed Auyong that Liberty could not involuntarily discharge or transfer Patient
5 Natividad first saw Plaintiff's Report on November 19. ER435, testimony of Natividad; ER464-65, testimony of Auyong (describing Natividad's reaction to finding the AER on November 19- "[O]h my God ... I wish I had seen this earlier"). However, for purposes of this Appeal, Defendant assumes Plaintiff spoke with Natividad about her AER on November 17.
6 Natividad contacted Human Resources about the AER, but because it was a patient issue subject to CMS regulations, Human Resources was not directly involved in the investigation. ER540-41.
in Hawaii and it did not want him to be abandoned. ER489-91. Therefore, with
Network 17's approval, Liberty asked Patient E to transfer out of the Leeward
facility to the Waianae facility. ER442; ER488-89. Patient E agreed. ER494.
Although Patient E continued his treatment at Leeward until his transfer became
effective,8 De Gula was comfortable because Natividad moved Patient E out of her
area. ER513-14, testimony of De Gula. De Gula was satisfied with Natividad's
response to her complaint. ER509.
Patient E died on July 19, 2010. ER557.
D. Plaintiff Resigns
On or about July 27, 2009, while still out on her medical leave,
Plaintiff sent Whaley a letter informing Liberty that she had accepted another
position with another employer, Fresenius. ER203, ER238; ER398 (Plaintiffs
July 27, 2009 letter to Whaley), ER229-30. In response to Plaintiffs July 27 letter,
Whaley wrote to Plaintiff expressing her disappointment in receiving her
resignation letter and making Plaintiff an unconditional offer of reinstatement.
ER239; ER408-09 (Whaley's August 11, 2009letter to Plaintiff). Whaley
requested a response to her offer by August 17, 2009. ER409. In the letter Whaley
8 Liberty was required by Network 17 to provide Patient E with 30 days' notice of his transfer, but he voluntarily agreed to be transferred earlier. ER468-69, ER470.
fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56( a).
"When a moving party has carried its burden under Rule 56[(a)] its
opponent must do more than simply show that there is some metaphysical doubt as
to the material facts ... [and] come forward with specific facts showing that there
is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S.
574, 586-87 (1986) (citation and internal quotation signals omitted); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (stating that a party
cannot "rest upon the mere allegations or denials of his pleading" in opposing
summary judgment).
VII. ARGUMENT
A. The District Court Correctly Ruled That Defendant Was Entitled To Summary Judgment On Plaintifrs Sexual Harassment Claim
1. The reported conduct was not severe or pervasive as a matter of law
The District Court correctly granted Defendant summary judgment on
Plaintiffs sex discrimination claims under Haw. Rev. Stat. § 378-2.9 ER19. To
9 Haw. Rev. Stat. § 378-2 provides in relevant part: "It shall be an unlawful discriminatory practice: (1) Because of ... sex ... : (A) For any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment; .... "
establish a prima facie claim for sexual harassment under Hawaii law, a plaintiff
must show:
(a) she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature;
(b) the conduct was unwelcome;
(c) the conduct was severe or pervasive;
(d) Complainant actually perceived the conduct as having such purpose or effect; and
(e) the conduct had the purpose or effect of either:
(1) unreasonably interfering with Complainant's work performance, or
(2) creating an intimidating, hostile, or offensive work environment;
(f) Complainant's perception was objectively reasonable to a person of her gender in the same position as Complainant.
Nelson v. Univ. of Hawaii, 97 Haw. 376, 390-91,38 P.3d 95, 109-10 (2001). In
reviewing a claim under§ 378-2, federal case law is persuasive, but not
controlling. See Arquero v. Hilton Hawaiian Vill., LLC, 104 Haw. 423, 429-31, 91
P.3d 505, 511-13 (2004); see also Shoppe v. Cucci Am., 94 Haw. 368,377, 14 P.3d
1049, 1058 (2000) ("In interpreting HRS § 378-2 in the context of ... gender
discrimination, we have previously looked to the interpretations of analogous
federal laws by the federal courts for guidance.") (citing Furukawa v. Honolulu
Zoological Soc 'y, 85 Haw. 7, 13, 936 P.2d 643, 649 (1997) ("The federal comis
have considerable experience in analyzing these cases, and we look to their
decisions for guidance.").
Initially, Liberty submits that Plaintiff has failed to establish a prima
facie case of sexual harassment because the conduct she complained of- i.e., the
conduct Liberty was made aware of- was neither sufficiently severe nor pervasive.
In her Opening Brief, Plaintiff focuses on Arquero, a Hawaii Supreme Court case
where the court determined that a single act by an employee in grabbing the
buttock of his co-worker for approximately one second was sufficiently severe to
constitute sexual harassment because it could constitute a sexual assault under
Hawaii criminal law. Opening Brief at 12. The District Court correctly rejected
Plaintiffs attempts to equate Arquero to the instant case:
[Plaintiff] did not inform Defendant that Patient E touched the back of her breast, made a crude gesture with his belt buckle, or verbally harassed her, as alleged in her Complaint and at her deposition. "An employer cannot be liable for misconduct of which it is unaware." Swenson v. Potter, 271 F.3d 1184, 1192 (9th Cir. 2001 ) .... The allegations that Patient E touched her shoulder and arm do not appear to amount to sexual assault, as was the case in Arquero. Patient E's conduct, while offensive, does not appear to have been objectively severe or pervasive enough to unreasonably interfere with Plaintiffs work performance or create an intimidating, hostile, or offensive work environment under the law.
Even assuming, arguendo, that Patient E's conduct constituted sexual
harassment, an employer is not liable for a patient's harassing conduct unless it
"fails to take corrective action after learning of [the harasser's] sexually harassing
conduct, or takes inadequate action that emboldens the harasser to continue his
misconduct .... " Swenson, 271 F.3d at 1192. Thus, the "matter alleged to be
discriminatory is the adequacy of the employer's response, not the ... underlying
behavior." !d. at 1191; see also Arquero, 104 Haw. at 432, 91 P.3d at 514 ("An
employer will be liable for co-worker sexual harassment only where the employer
knew or should have known of that harassment and failed to take steps reasonably
calculated to end the harassment.").
In her Opening Brief, Plaintiff appears to allege that Liberty failed to
act promptly because Natividad did not see and act on the "critical" AER
immediately on November 13, the day after Plaintiff left it in Natividad's in tray. 10
Opening Brief at 18-19. Even assuming Natividad saw the AER the day after
Plaintiff left it in her in tray, Plaintiff's claim fails because the evidence shows
Natividad took prompt remedial action:
10 Plaintiff never approached Natividad to let her know she left a "critical" AER in her in tray. ER447-48. Moreover, there is no evidence that Natividad intentionally avoided finding the AER.
• On November 19, Natividad and Auyong met with Patient E and told him he would need to sign a Facility Agreement.
• On November 20, Natividad directed Llenes not to assign Patient E to Plaintiff.
• On November 21, Liberty entered into the Facility Agreement with Patient E in which he agreed that if he engaged in inappropriate behavior, he would be discharged or transferred from the clinic.
• On November 24, Liberty agreed with HNA not to assign Plaintiff to Patient E, and switched Patient E's schedule so that, at most, Plaintiff and Patient E would be in the same facility for half-an-hour on days their schedules overlapped.
Although seven days passed between November 13 and November 20, when
Natividad began taking remedial action, this Circuit has found longer time spans
between the complaint, investigation and remedial action reasonable. See Katich v.
regulations constraining Liberty's ability to discipline Patient E for his
inappropriate conduct:
Even viewing the facts in the light more favorable to Plaintiff, the Court concludes that Defendant's response was reasonable and adequate under the circumstances of this case. See Arquero, 104 Hawai'i at 433, 91 P.3d at 55 (recognizing "there may be situations in which a court could conclude that an employer's response was sufficient as a matter of law.") Moreover, in this particular context, Defendant's response was reasonable in light of its relationships with its dialysis patient and Network 17, as well as its employees. See id. at 433, n. 14,91 P.3d at 515, n. 14 (stating that courts "must balance the victim's rights, the employer's rights, and the alleged harasser's rights. If our rule were to call for excessive discipline, employers would inevitably face claims from the other direction of violations of due process rights and wrongful termination.") [citation omitted].
ER22-23, District Court's Order (emphasis added).
In arguing that Liberty did not meet its obligation, Plaintiff again
relies on Arquero. In Arquero, the court held that whether the employer took
action reasonably calculated to end the harassment was a question for the trier of
fact. 104 Haw. at 434, 91 P.3d at 516. However, the Arquero court questioned the
sufficiency of the employer's response after the first incident of harassment-i.e., a
verbal warning from a supervisor to the harassing co-worker that his conduct was
inappropriate and that a repeated offense would lead to a written warning-
because the employer also allowed the employees to continue to work together
even though the employer knew the co-worker did not take the warning seriously,
the co-worker was not told he could be discharged if his behavior continued, and
the harassment continued. !d.
Here, unlike in Arquero, Liberty took prompt remedial action upon
learning of the AER, including having Patient E sign a Facility Agreement
whereby he would risk losing access to his life-sustaining dialysis treatment if he
repeated his behavior. The District Court correctly found that Liberty's response
was reasonable given the conduct Plaintiff described in her AER.
Plaintiff contends that Liberty's decision to credit Plaintiffs AER and
take remedial action without meeting with her first was significant. However, as
Plaintiff explained in her Opening Brief, "[t]he primary purpose of the
investigation is to discover whether or not complaints of sexual harassment are
true, so that adequate measures can be implemented by the employer to stop it."
Opening Brief at 21 (emphasis added). Here, Liberty did not interview Plaintiff
because it credited her AER, i.e., it determined that her complaint was true. As the
District Court pointed out during the hearing on Defendant's Motion for Summary
Judgment in response to Plaintiffs argument that Liberty's investigation was
negligent:
567924
[B]ut the irony is ... that they took her report and said, "We believe it. We believe it, and we are going to confront your harasser. And we are going to put him on
this contract. We are going to tell him if he does it again, he has a risk of getting kicked out."
*****
And the irony is you are saying they should have done an investigation, because she didn't tell them everything. And so they should have known that there was more stuff that she was leaving of the report that she had an opportunity to tell them. Apparently she can write, because wrote a whole thing about, He touched me this, I told him not to do it, he did again and so forth.
So how are they supposed to know . .. with no PS. PS, there is a lot more, but I don'tfeel comfortable putting on the note, that they need to then go and find out from her.
Because usually you investigate it because somebody denies it, and then you say, Well, we don't know what really happened here. We need to get witnesses. I mean that's typically how these sexual harassment or race discrimination investigations go. And then you collect evidence and weigh the evidence. You come up with a remedial plan.
*****
But here she [Natividad/ took it at face value that it was true, apparently. Confronts the patient .... after consulting apparently with this other group, and then comes up with this behavior plan.
ER 71-72 (emphases added). Defendant submits that its decision not to meet with
Plaintiff was reasonable given that it credited her AER. lfPlaintiffhad more to
say, she should have and could have provided Natividad with additional
information either in her AER or when, according to Plaintiff, she spoke to
high costs .... " See id. (citing Coates v. Pac. Eng'g, 71 Haw. 358, 364, 791 P.2d
1257, 1261 (1990)).
Although Haw. Rev. Stat. § 386-5 includes a limited exception for
"sexual harassment or sexual assault and infliction of emotional distress ... related
thereto .... ", the District Court correctly held that the exception is inapplicable to
this case, where Plaintiff is not asserting negligence on a theory of respondeat
superior for the sexually harassing conduct, but rather "breaches of independent
duties to supervise and train employees and to handle investigations of sexual
harassment properly." ER29. In dismissing Plaintiff's NIED claim, the District
Court cited to Chief United States District Judge Susan Oki Mollway's decision in
Clemmons v. Hawaii Med. Servs. Ass 'n, 273 F.R.D. 653, 658-59 (D. Haw. 2011).
ER27-28.
Like Plaintiff, in Clemmons, the plaintiff accused his employer of
negligence based on its failure to adequately investigate his sexual harassment
complaint. 276 F.R.D. at 658-59. The District Court rejected the plaintiff's
negligence claims explaining:
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[T]his judge reads the plain language of the sexual harassment provision as exempting sexual harassment itselffrom chapter 386's exclusivity, not as exempting the distinguishable situation involving negligent training about sexual harassment. Moreover the legislative history of the 1992 amendment that added the sexual harassment language to section 386-5 does not reflect an
The Hawaii Supreme Court has established an exacting standard for
It has not been enough that the defendant has acted with an intent that is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by "malice" or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort. Liability has only been found where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.
Ross v. Stouffer Hotel Co., 7 6 Haw. at 465 n.l2, 879 P .2d at I 049 n.l2 (quoting
Restatement (Second) of Torts,§ 46, cmt. d) (emphasis added).
The burden of establishing an liED claim is particularly high in the
context of employment actions. See, e.g., Shoppe v. Gucci Am., Inc., 98 Haw. 368,
387, 14 P.3d 1049, 1068 (2000); Ingle v. Liberty House, Inc., No. 94 0787(3), 1995
