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Case 1:12-cv-00544-RLP Document 37 Filed 07/30/13 Page 1 of 29 PageID #: 408

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAII

IVONNE P. MACHADO,

Plaintiff,

vs.

THE REAL ESTATE RESOURCE,
LLC, dba PRUDENTIAL ADVANTAGE
REALTY, ET AL.,

_____________________________

Defendants.

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CIVIL NO. 12-00544 RLP
MEMORANDUM OPINION AND ORDER
GRANTING IN PART AND DENYING IN
PART DEFENDANT THE REAL ESTATE
RESOURCE, LLC, dba PRUDENTIAL
ADVANTAGE REALTY’S MOTION FOR
SUMMARY JUDGMENT

MEMORANDUM OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANT THE REAL ESTATE RESOURCE, LLC, dba PRUDENTIAL ADVANTAGE

REALTY’S MOTION FOR SUMMARY JUDGMENT

Before the Court is Defendant The Real Estate Resource,

LLC, dba Prudential Advantage Realty’s (“Defendant”) Motion for
Summary Judgment, filed on June 13, 2013, (“Motion”). See ECF
No. 25. On July 5, 2013, Plaintiff Ivonne P. Machado
(“Plaintiff”) filed her memorandum in opposition to the Motion,
and on July 12, 2013, Defendant filed its reply. See ECF Nos.
30, 33. The Motion came on for hearing before the Court on July
26, 2013, at 10:00 a.m. Tracy S. Fukui, Esq. appeared on behalf
of Defendant, and Charles H. Brower, Esq. and Michael P. Healy,
Esq. appeared on behalf of Plaintiff. Based on the following,
and after careful consideration of the Motion, the supporting and
opposing memoranda, declarations, and exhibits attached thereto,

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and the record established in this action, the Court HEREBY
GRANTS IN PART AND DENIES IN PART the Motion.

BACKGROUND

On October 13, 2009, Plaintiff was hired by Defendant’s
Vice President of Operation, Simpson Tsang, as an escrow manager
for Defendant, a real estate brokerage. Machado Decl., ECF No.
32-1, at ¶ 2; Tsang Decl., ECF No. 25-6, at ¶¶ 1-2, 7. Plaintiff
is originally from Indonesia, and English is her second language.
Machado Decl. ¶ 4. From her initial hire, Tsang was aware that
Plaintiff was from Indonesia and spoke with an accent. Tsang
Decl. ¶ 34; Ex. F.

Defendant’s escrow managers are primarily responsible

for ensuring that the escrow process for purchase contracts
entered into under its brokerage are completed in a professional
and expeditious manner. Tsang Decl. ¶ 8. Escrow managers are
the primary contact with the client and agents once in escrow and
must make sure all contract escrow deadlines are met. Id. at ¶¶
8-9. Defendant’s business is reliant upon repeat business and
referrals from clients who are satisfied with their agents and
their brokerage, including services received from the escrow
manager once their sales contracts are in escrow. Id. at ¶¶ 2-4,
8. Thus, good communication skills are essential to the position
of escrow manager. Id. at ¶ 8; Machado Dep., ECF No. 27-4, at
40:25-41:3.

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On July 15, 2011, Tsang and Kevin Inn, Defendant’s Vice

President of Sales and Business Development, met with Plaintiff
and informed her of Tsang’s decision to terminate her employment
with Defendant. Tsang Decl. ¶ 31; Machado Decl. ¶ 23. Plaintiff
states that Tsang and Inn told her that she was being fired
because of her “strong accent” because her accent “would not let
[her] be successful with their company.” Id. Defendant states
that Plaintiff was terminated based on her “poor performance,”
including “the multiple errors she made on escrow transactions,
her failure to meet contractual deadlines, the complaints
regarding rudeness to clients and agents, and her deficient
communication skills[.]” Tsang Decl. ¶¶ 31, 35. Defendant
claims that Plaintiff was not terminated because of her national
origin or Indonesian accent and that the basis for Plaintiff’s
deficient communication skills was not of consequence in Tsang’s
decision to terminate Plaintiff. Id. at ¶ 35.

According to Plaintiff, she met with Tsang at least

once per month while she worked for Defendant. Machado Decl. ¶
10. During this time, Tsang never told Plaintiff that she was
making mistakes or not communicating properly; he always told her
that she was doing a good job. Id. Plaintiff states that Tsang
“never mentioned [her] accent until he terminated [her] on July
15, 2011.” Id. Plaintiff contends that the first time she was
told about having performance issues was July 18, 2011. Id. at ¶

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26. Plaintiff further alleges that she has worked for other real
estate brokerage companies in the past and that no one at these
previous companies said that she had a strong accent or that they
could not understand her. Id. at ¶ 6.

On January 6, 2012, Plaintiff filed a charge of

discrimination with the Hawaii Civil Rights Commission (“HCRC”)
and the Equal Employment Opportunity Commission (“EEOC”).
See Compl., ECF No. 1-2, at ¶ 13. On June 20, 2012 and July 11,
2012 respectively, the HCRC and EEOC issued right to sue letters
to Plaintiff. See id. at ¶ 14. On September 8, 2012, Plaintiff
filed her Complaint in state court. See id. On October 9, 2012,
Defendant removed the case to this Court. See Notice of Removal,
ECF No. 1. Jury trial is currently set before the undersigned on
November 13, 2013. See ECF No. 18.

LEGAL STANDARD

Summary judgment is appropriate 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(a). A fact
is material when, under the governing substantive law, it could
affect the outcome of the case. Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 248 (1986). A dispute about a material fact is
genuine if “the evidence is such that a reasonable jury could
return a verdict for the nonmoving party.” Id. “Disputes over
irrelevant or unnecessary facts will not preclude a grant of

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summary judgment.” T.W. Elec. Serv., Inc. v. Pac. Elec.
Contractors Ass’n, 809 F.2d 626, 630 (9th Cir. 1987).

The party seeking summary judgment bears the initial

burden of establishing the absence of a genuine issue of material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The
moving party can satisfy this burden in two ways: (1) by
presenting evidence that negates an essential element of the
nonmoving party’s case, or (2) by demonstrating that the
nonmoving party failed to make a showing sufficient to establish
an element essential to that party’s case on which that party
will bear the burden of proof at trial. Id. at 322-23. If the
moving party fails to discharge this initial burden, summary
judgment must be denied and the court need not consider the
nonmoving party’s evidence. Adickes v. S.H. Kress & Co., 398
U.S. 144, 159-60 (1970).

If the moving party meets this initial burden, however,

the nonmoving party cannot defeat summary judgment merely by
demonstrating “that there is some metaphysical doubt as to the
material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Rather, the nonmoving party
must “go beyond the pleadings” and by “the depositions, answers
to interrogatories, and admissions on file,” designate “specific
facts showing that there is a genuine issue for trial.” Celotex
Corp., 477 U.S. at 324.

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“The district court may limit its review to the

documents submitted for the purpose of summary judgment and those
parts of the record specifically referenced therein.” Carmen v.
S.F. Unified Sch. Dist., 237 F.3d 1026, 1030 (9th Cir. 2001).
Thus, the court is not obligated “to scour the record in search
of a genuine issue of triable fact.” Keenan v. Allan, 91 F.3d
1275, 1279 (9th Cir. 1996). See also LR 56.1(f) (“When resolving
motions for summary judgment, the court shall have no independent
duty to search and consider any part of the record not otherwise
referenced in the separate concise statements of the parties. . .
. [or] to review exhibits in their entirety.”).

When conducting its analysis, the court must view all

inferences drawn from the underlying facts in the light most
favorable to the nonmoving party. Matsushita, 475 U.S. at 587.
“Credibility determinations, the weighing of evidence, and the
drawing of legitimate inferences from the facts are jury
functions, not those of a judge, [when] ruling on a motion for
summary judgment.” Anderson, 477 U.S. at 255.

ANALYSIS
Employment Discrimination Claims

I.

Title VII of the Civil Rights Act of 1964 forbids

employment discrimination based on “race, color, religion, sex,
or national origin.” 42 U.S.C. § 2000e-2(a). Hawaii law
similarly prohibits discrimination based on “race, sex, including

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gender identity or expression, sexual orientation, age, religion,
color, ancestry, disability, marital status, arrest and court
record, or domestic or sexual violence victim status.” Haw. Rev.
Stat. § 378-2. In construing employment discrimination claims
brought pursuant to state law, Hawaii courts look “to the
interpretations of analogous federal laws by the federal courts
for guidance.” Shoppe v. Gucci Am., 94 Hawai‘i 368, 377, 14 P.2d
1049, 1058 (2000).

A.

Proper Summary Judgment Framework for Title VII Claims
As an initial matter, the Court must clarify some
understandable confusion regarding the plaintiff’s burden of
proof in a Title VII disparate treatment case.1 In its moving
papers, Defendant relies on the three-step burden-shifting
framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973), which is the typical analysis applied by employers
moving for summary judgment on a Title VII claim brought by an
employee. Under this framework, the plaintiff must first
establish a prima facie case of discrimination by showing that
(1) she belongs to a protected class; (2) she was performing
according to her employer’s legitimate expectations; (3) she

1 See Costa v. Desert Palace, Inc., 299 F.3d 838, 851-54

(9th Cir. 2002) (describing Title VII jurisprudence as a
“quagmire that defies characterization despite the valiant
efforts of various courts and commentators,” “chaos,” and a
“morass” and stating that there “has been considerable
misunderstanding” regarding the McDonnell Douglas burden-shifting
analysis).

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suffered an adverse employment action; and (4) other employees
with qualifications similar to her own were treated more
favorably. Nicholson v. Hyannis Air Serv., Inc., 580 F.3d 1116,
1123 (9th Cir. 2009) (quoting Chuang v. Univ. of Cal. Davis, Bd.
of Trs., 225 F.3d 1115, 1123 (9th Cir. 2000)). If the plaintiff
succeeds in presenting a prima facie case, the burden shifts to
the defendant to articulate a “legitimate, nondiscriminatory
reason” for its allegedly discriminatory conduct. Noyes v. Kelly
Servs., 488 F.3d 1163, 1167 (9th Cir. 2007) (quoting Chuang, 225
F.3d at 1123-24). If the defendant provides such a reason, the
burden then shifts back to the plaintiff to raise a triable issue
of fact that the defendant’s proffered reason was a pretext for
unlawful discrimination. Id. (citing Chuang, 225 F.3d at 1124).
Here, Plaintiff “submits that this is a case of direct

evidence discrimination based on National Origin/Ancestry.”
Pl.’s Mem. Opp. Mot. 10. As a result, Plaintiff asserts that
“the McDonnell Douglas framework for establishing a prima facie
case of discrimination is not applicable to this case and
Defendant must meet its burden of articulating a non
discriminatory [sic] reason for terminating Plaintiff.” Id.
Under older Ninth Circuit precedent, Title VII plaintiffs could
produce direct or circumstantial evidence of an employer’s
discriminatory intent as an alternative means of establishing a
prima facie case instead of satisfying the four-prong test
discussed above. See, e.g., Vasquez v. Cnty. of L.A., 349 F.3d

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634, 640 (9th Cir. 2003) (“For a prima facie case, Vasquez must
offer evidence that ‘give[s] rise to an inference of unlawful
discrimination,’ either through the framework set forth in
McDonnell Douglas Corp. v. Green or with direct or circumstantial
evidence of discriminatory intent.”) (citations omitted); Cordova
v. State Farm Ins. Cos., 124 F.3d 1145, 1148 (9th Cir. 1997)
(“The prima facie case may be based either on a presumption
arising from the factors such as those set forth in McDonnell
Douglas or by more direct evidence of discriminatory intent.”)
(alterations and citation omitted); Lowe v. City of Monrovia, 775
F.2d 998, 1007 (9th Cir. 1985), amended by 784 F.2d 1407 (9th
Cir. 1986), (“Because Lowe has met the four-part McDonnell
Douglas requirements and alternatively because she has provided
direct and circumstantial evidence of discriminatory intent, she
established a prima facie case of disparate treatment on the
basis of race.”). In this line of cases, assuming the plaintiff
met her prima facie showing, the remaining two parts of the
burden-shifting McDonnell Douglas framework were then addressed
by the court. See, e.g., id. at 1007-09 (discussing employer’s
articulated nondiscriminatory reason and employee’s evidence of
pretext).

More recent Ninth Circuit decisions, however, have
clarified that a disparate treatment plaintiff may opt to not
utilize the McDonnell Douglas burden-shifting framework at all in
responding to a summary judgment motion. Instead, the plaintiff

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may respond by producing evidence that a discriminatory reason
more likely than not motivated the employer. See Surrell v. Cal.
Water Serv. Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (“Typically,
we apply the familiar McDonnell Douglas burden shifting framework
for Title VII and § 1981 claims. A plaintiff may alternatively
proceed by simply producing ‘direct or circumstantial evidence
demonstrating that a discriminatory reason more likely than not
motivated the employer.’”) (quoting Metoyer v. Chassman, 504 F.3d
919, 931 (9th Cir. 2007) (internal citations omitted)).
Specifically, the Ninth Circuit has stated that “although the
McDonnell Douglas framework is a useful tool to assist plaintiffs
at the summary judgment stage so that they may reach trial,
nothing compels the parties to invoke the McDonnell Douglas
presumption.” McGinest v. GTE Serv. Corp., 360 F.3d 1103, 1122
(9th Cir. 2004) (quoting Costa v. Desert Palace, Inc., 299 F.3d
838, 855 (9th Cir. 2002) (internal quotation marks omitted)).
Rather, when responding to a summary judgment motion, the
plaintiff is presented with a choice regarding how to establish
her case: she “may proceed by using the McDonnell
Douglas framework, or alternatively, may simply produce direct or
circumstantial evidence demonstrating that a discriminatory
reason more likely than not motivated [the defendant].” Id. See
also Nguyen v. Qualcomm, Inc., 501 Fed. Appx. 691, 694 (9th Cir.
2012) (“the McDonnell Douglas framework is inapplicable here
because Nguyen presented direct evidence of discrimination”)

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(citing Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121
(1985)).

This district has recognized this distinction in our

recent case law. See, e.g., Rutenschroer v. Starr Seigle
Commc’ns, Inc., 484 F. Supp. 2d 1144, 1151 (D. Haw. 2006) (“When
a defendant moves for summary judgment, the plaintiff alleging
disparate treatment may respond in one of two ways. On one hand,
a plaintiff may provide direct or circumstantial evidence ‘that a
discriminatory reason more likely motivated the employer’ to
engage in disparate treatment. In the alternative, the plaintiff
may survive summary judgement [sic] by engaging in the McDonnell
Douglas burden shifting analysis.”); Lalau v. City & Cnty. of
Honolulu, Civ. No. 11-00268 SOM-RLP, 2013 WL 1337000, at *8 (D.
Haw. Mar. 28, 2013) (“Lalau eschews the McDonnell Douglas
framework and opts to go directly to producing evidence that the
City likely acted for a discriminatory reason. Lalau’s approach
is clearly permitted.”). Likewise, this Court will analyze
Plaintiff’s alleged direct evidence of national origin
discrimination without applying the McDonnell Douglas framework.
When a plaintiff does not rely on the McDonnell Douglas

framework to oppose a summary judgment motion, but seeks to
establish her case through the submission of actual evidence,
“very little such evidence is necessary to raise a genuine issue
of material fact regarding an employer’s motive[.]” Lowe, 775
F.2d at 1009. “[A]ny indication of discriminatory motive –-

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including evidence as diverse as the [defendant’s] reaction, if
any, to [plaintiff’s] legitimate civil rights activities; and
treatment of [plaintiff] during [her] prior term of employment;
[defendant’s] general policy and practice with respect to
minority employment -- may suffice to raise a question that can
only be resolved by a factfinder.” Id. (internal quotation marks
and citation omitted). See also Cordova, 124 F.3d at 1149-50
(“because of the inherently factual nature of the inquiry,
[plaintiff] need produce very little evidence of discriminatory
motive to raise a genuine issue of fact”); Cornwell v. Electra
Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006) (“summary
judgment is not appropriate if, based on the evidence in the
record, a reasonable jury could conclude by a preponderance of
the evidence that the defendant undertook the challenged
employment action because of the plaintiff’s [protected
characteristic]”).

For an employee to meet this burden, the Ninth Circuit

has “repeatedly held that a single discriminatory comment by a
plaintiff’s supervisor or decisionmaker is sufficient to preclude
summary judgment for the employer.” Dominguez-Curry v. Nev.
Transp. Dep’t, 424 F.3d 1027, 1039 (9th Cir. 2005). Relying on a
supervisor’s single discriminatory comment is consistent with
“the importance of zealously guarding an employee’s right to a
full trial, since discrimination claims are frequently difficult
to prove without a full airing of the evidence and an opportunity

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to evaluate the credibility of the witnesses.” McGinest, 360
F.3d at 1112. “[W]hen a court too readily grants summary
judgment, it runs the risk of providing a protective shield for
discriminatory behavior that our society has determined must be
extirpated.” Id. When a plaintiff has established a prima facie
inference of disparate treatment though direct or circumstantial
evidence of discriminatory intent -- even if the employer has a
legitimate, nondiscriminatory reason for taking the adverse
employment action -- she “will necessarily have raised a genuine
issue of material fact with respect to the legitimacy or bona
fides of the employer’s articulated reason for its employment
decision.” Cordova, 124 F.3d at 1150 (emphasis in original).
See also Lalau, 2013 WL 1337000, at *8.

B.

Plaintiff’s Evidence of Defendant’s Alleged National
Origin Discrimination
Plaintiff asserts that “[t]he comments made to [her] by

Tsang and Inn when she was terminated, that Plaintiff was being
terminated for having a ‘strong accent’, are direct evidence to
Defendant’s discriminatory motive to terminate Plaintiff.” Pl.’s
Mem. Opp. Mot. 10. In particular, Plaintiff contends:
Although Defendant did not make a specific
derogatory ethnic comment about Thai people,
Tsang and Inn stated that the reason for
terminating Plaintiff was because of her
“strong accent”. Plaintiff is from Thailand
and has a slight accent. The stated reason
for terminating Plaintiff has everything to do
with her national origin and ancestry.


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Id. at 11. Defendant claims that, even assuming the statement
regarding Plaintiff’s accent was made, see Def.’s Mem. Supp. Mot.
21 n.4, it is merely circumstantial, or indirect, evidence of
Defendant’s alleged discriminatory motive. See id. at 18-19;
Def.’s Reply 11-12.

Direct evidence is “evidence which, if believed proves

the fact [of discriminatory animus] without inference or
presumption.” Vasquez, 349 F.3d at 640 (quoting Godwin v. Hunt
Wesson, Inc., 150 F.3d 1217, 1221 (9th Cir. 1998) (alteration in
original)). “Direct evidence typically consists of clearly
sexist, racist, or similarly discriminatory statements or actions
by the employer.” Dominguez-Curry, 424 F.3d at 1038 (quoting
Coghlan v. Am. Seafoods Co., 413 F.3d 1090, 1095 (9th Cir.
2005)). Circumstantial evidence, on the other hand, “is evidence
that requires an additional inferential step to demonstrate
discrimination.” Coghlan, 413 F.3d at 1095. Circumstantial
evidence can take two forms: first, the plaintiff can make an
affirmative case that the employer is biased, e.g., by using
statistical evidence; second, the plaintiff can make her case
negatively, by showing that the employer’s proffered explanation
for the adverse action is unworthy of credence. Id.

With respect to the pretext inquiry in the McDonnell

Douglas framework, the Ninth Circuit has characterized the
distinction between direct and circumstantial evidence as
“crucial, because it controls the amount of evidence that the

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plaintiff must present in order to defeat the employer’s motion
for summary judgment.” Coghlan, 413 F.3d at 1095. When evidence
of pretext is direct, the plaintiff need offer “very little
evidence to survive summary judgment in a discrimination case.”
E.E.O.C. v. Boeing, 577 F.3d 1044, 1049 (9th Cir. 2009) (quoting
Lam v. Univ. of Haw., 40 F.3d 1551, 1564 (9th Cir. 1994)). But,
“[w]here evidence of pretext is circumstantial, rather than
direct, the plaintiff must produce ‘specific’ and ‘substantial’
facts to create a triable issue of pretext.” Earl v. Nielsen
Media Research, Inc., 658 F.3d 1108, 1113 (9th Cir. 2011)
(quoting Godwin, 150 F.3d at 1222).

When a plaintiff opts not to rely on the McDonnell

Douglas framework but instead to produce evidence that an
employer likely acted for a discriminatory reason, however, the
effect of producing direct versus circumstantial evidence is more
uncertain. In this context, the Ninth Circuit has said, “In
Costa, the Supreme Court held that circumstantial and direct
evidence should be treated alike, noting: ‘Circumstantial
evidence is not only sufficient, but may also be more certain,
satisfying and persuasive than direct evidence.’” McGinest, 360
F.3d at 1122 (quoting Desert Palace, Inc. v. Costa, 539 U.S. 90,
100 (2003)). See also Cornwell, 439 F.3d at 1030 (“in the
context of summary judgment, Title VII does not require a
disparate treatment plaintiff relying on circumstantial evidence
to produce more, or better, evidence than a plaintiff who relies

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on direct evidence”). On other hand, the Ninth Circuit has also
stated that “[o]ur circuit has not clearly resolved” whether
circumstantial evidence of discriminatory animus must be
“specific” and “substantial.” Davis v. Team Elec. Co., 520 F.3d
1080, 1091 & n.6 (9th Cir. 2008).

Despite this uncertainty within the Ninth Circuit, the

Court finds that Plaintiff’s evidence of national origin
discrimination is sufficient to withstand summary judgment. In
the first instance, comments made by an employer regarding an
employee’s accent have been considered as direct evidence of
national origin discrimination in other jurisdictions. See,
e.g., In re Rodriguez, 487 F.3d 1001, 1009 (6th Cir. 2007);
Akouri v. State of Fla. Dep’t of Transp., 408 F.3d 1338, 1347-48
(11th Cir. 2005). Although this specific issue has not yet been
addressed by the Ninth Circuit, its decision in Fragante v. City
& County of Honolulu, 888 F.2d 591 (9th Cir. 1989), is helpful.
In Fragante, a Filipino man applied for a clerk’s job with the
City & County of Honolulu, and although he placed high enough on
a civil service eligible list to be chosen for the position, he
was not selected because of a perceived deficiency in relevant
oral communication skills caused by his “heavy Filipino accent.”
Id. at 593. While the court did not make a specific holding as
to whether Fragante established a prima facie case of national

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origin discrimination,2 the court stated, “Fagrante’s position is
supported by the approach taken by the Equal Employment
Opportunity Commission which submits that a plaintiff who proves
he has been discriminated against solely because of his accent
does establish a prima facie case of discrimination.” Id. at
595. Fagrante’s contention was “further supported by EEOC
guidelines which define discrimination to include ‘the denial of
equal employment opportunity . . . because an individual has the
. . . linguistic characteristics of a national origin group.’”
Id. (quoting 29 C.F.R. § 1606.1).

Moreover, the Ninth Circuit’s statements in Fragante

regarding an employer’s legitimate consideration of an employee’s
accent do not preclude Plaintiff’s evidence from being
characterized as direct here. Specifically, in Fragante, the
court stated, “An adverse employment decision may be predicated
upon an individual’s accent when –- but only when –- it
interferes materially with job performance. There is nothing
improper about an employer making an honest assessment of the
oral communication skills of a candidate for a job when such
skills are reasonably related to job performance.” Fragante, 888
F.2d at 596-97 (emphasis in original). However, just because an

2 See id. at 595-96 (“Because we find that Fragante did not

carry the ultimate burden of proving national origin
discrimination, however, the issue of whether Fragante
established a prima facie case of discrimination is not
significant, and we assume without deciding that he did.”).

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employer is permitted to consider an employee’s accent when
making an adverse employment decision, it does not follow that an
employer’s statement cannot be deemed as direct evidence that the
employer likely acted for a discriminatory reason.3

That being said, even if the Court assumes that

Plaintiff’s evidence is circumstantial, it is “specific” and
“substantial” enough to raise questions of fact as to Plaintiff’s
claims of disparate treatment based on national origin in
violation of Title VII and HRS § 378-2. See In re Rodriguez, 487
F.3d at 1013 (Batchelder, J., concurring) (employer’s comments
regarding an employee’s accent are circumstantial evidence
sufficient to overcome summary judgment motion).

for

an

Accent and national origin are obviously
inextricably intertwined in many cases. It
would therefore be an easy refuge in this
context
unlawfully
discriminating against someone based on
national origin to state falsely that it was
not the person’s national origin that caused
the employment or promotion problem, but the
candidate’s inability to measure up to the
communication skills demanded by the job. We

employer

3 For example, an employer is permitted to discriminate on

the basis of religion, sex, or national origin when these
characteristics are a bona fide occupational qualification
(“BFOQ”) reasonably necessary to the normal operation of that
particular business. Int’l Union, United Auto., Aerospace &
Agric. Implement Workers of Am., UAW v. Johnson Controls, Inc.,
499 U.S. 187, 200 (1991). Nonetheless, the existence of an
employer’s potential BFOQ defense does not preclude an employee
from presenting direct evidence of the employer’s discriminatory
intent. See, e.g., Dominguez-Curry, 424 F.3d at 1038 (sexist
comments were direct evidence of employer’s discriminatory animus
toward women in the workplace).
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encourage a very searching look by the
district courts at such a claim.

Fragante, 888 F.2d at 596. As much as Defendant urges the Court
to rely on Fragante to grant it summary judgment, it is important
to note that Fragante had his day in court with a full trial on
the merits of his claim. See id. at 593. Determining whether
Defendant made an “honest” assessment of Plaintiff’s oral
communication skills and whether Defendant made a reasonable
investigation as to if those skills would “materially interfere”
with Plaintiff’s job performance is a fact-intensive inquiry.
That inquiry is typically ill-suited for summary judgment, as
this case illustrates. The disputes in the record over
Plaintiff’s language ability and accent are themselves fatal to
Defendant’s request for summary judgment.

Defendant argues that Plaintiff’s evidence that she was

terminated for having a “strong accent” is not specific or
substantial enough to raise a triable issue of fact that
Defendant’s articulated legitimate, nondiscriminatory reason for
terminating Plaintiff was a pretext for unlawful discrimination.
Indeed, the pretext analysis under the McDonnell Douglas
framework has much in common with analysis of evidence a
plaintiff offers to show that an employer probably acted for a
discriminatory reason. See McGinest, 360 F.3d at 1123 (noting
the parallel and stating that “it is not particularly
significant” whether a plaintiff is seeking to show pretext under

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McDonnell Douglas or relying on direct or circumstantial evidence
of discriminatory intent).

Nevertheless, even under pretext case law, Plaintiff’s

evidence is sufficient to withstand summary judgment. This
Court’s discussion in Lalau is instructive. In Lalau, the
plaintiff asserted that he had direct evidence of national origin
discrimination based on a single alleged comment made by his
employer referring to a need “to make the office safe” from the
plaintiff because he was “a typical Samoan.” Lalau, 2013 WL
1337000, at *9 (citing plaintiff’s declaration). Relying heavily
on the Ninth Circuit’s analysis of pretext evidence in Davis, the
Court found that “even if a plaintiff is relying on
circumstantial evidence, a single discriminatory comment will
pass the ‘specific and substantial’ standard if it is made by the
plaintiff’s supervisor or by a person who makes a decision as to
an adverse employment action.” Id. at *12. Thus, although the
Court believed that the plaintiff’s evidence was “as thin as it
could be” and that said evidence “may end up being too thin to
support a verdict at trial[,]” the Court concluded that this
single discriminatory comment was “specific” and “substantial”
enough to raise questions of fact as to the plaintiff’s claims of
disparate treatment. Id. at *9, *12. Therefore, the employer’s
summary judgment motion was denied. Id. at *12.

Similarly here, although Plaintiff’s evidence at this
juncture consists entirely of a single disputed discriminatory

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comment, it is sufficient to defeat Defendant’s summary judgment
motion. Plaintiff has presented evidence that her employer “told
[her] she was fired because of [her] ‘strong accent[.]’” Machado
Decl. ¶ 23. This evidence is “specific” and “substantial”
because the statement was (1) made directly to Plaintiff by her
supervisor, (2) as a basis for the adverse employment action, and
(3) is inextricably intertwined with Plaintiff’s national origin.
As a result, Plaintiff raises questions of fact as to her claims
of disparate treatment and summary judgment must be denied.
Finally, Defendant claims that it is entitled to the
benefit of the “same actor inference” because Tsang is the same
person that hired and fired Plaintiff after approximately 21
months of employment. “[W]here the same actor is responsible for
both the hiring and the firing of a discrimination plaintiff, and
both actions occur within a short period of time, a strong
inference arises that there was no discriminatory action.”
Coghlan, 413 F.3d at 1096 (quoting Bradley v. Harcourt, Brace &
Co., 104 F.3d 267, 270-71 (9th Cir. 1996)). This inference is
based “on the principle that an employer’s initial willingness to
hire the employee-plaintiff is strong evidence that the employer
is not biased against the protected class to which the employee
belongs,” id., and may arise when the hiring and firing are “as
much as a few years apart.” Schechner v. KPIX-TV, 686 F.3d 1018,
1026 (9th Cir. 2012). The same actor inference is “neither a
mandatory presumption (on the one hand) nor a mere possible

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conclusion for the jury to draw (on the other). Rather, it is a
‘strong inference’ that the court must take into account on a
summary judgment motion.” Coghlan, 413 F.3d at 1098.

The same actor inference can be overcome, however, if
the plaintiff provides “meaningful evidence that her supervisor
harbored discriminatory animus,” Johnson v. Boys & Girls Clubs of
S. Puget Sound, 191 Fed. Appx. 541, 545 (9th Cir. 2006), or
“evidence suggesting that [the employer] developed a bias against
[the protected class]” during the interval between the favorable
and unfavorable employment actions, Coghlan, 413 F.3d at 1097.
Additionally, this Court has found that the same actor inference
is rebutted where the plaintiff attests to post-hiring
discriminatory comments made by the employer. See Lalau, 2013 WL
1337000, at *9 n.1. Likewise, in this case, the Court concludes
that Plaintiff has presented enough evidence of a post-hiring
allegedly discriminatory statement by Defendant to overcome the
same actor inference.
II. Damages Claims

A.

Emotional Distress
Defendant seeks summary judgment as to Plaintiff’s

claim for damages related to emotional distress. In response to
Defendant’s request for answers to interrogatories, Plaintiff
admits that she did not receive any psychological or psychiatric
treatment and is not claiming any emotional or mental injuries as
a result of Defendant’s alleged wrongful termination. See Fukui

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Decl. Ex. I., at ¶ 7. Plaintiff has not contested this response.
Therefore, to the extent that Plaintiff makes a claim for damages
related to emotional distress, summary judgment is granted and
the claim is dismissed.4

B.

Back Pay
A plaintiff seeking back pay under Title VII has “a

duty to mitigate damages by seeking alternative employment with
‘reasonable diligence.’” Caudle v. Bristow Optical Co., Inc., 224
F.3d 1014, 1020 (9th Cir. 2000) (citing 42 U.S.C. § 2000e-
5(g)(1)). However, the employer has the burden of proving the
plaintiff’s failure to mitigate damages. See Odima v. Westin
Tucson Hotel, 53 F.3d 1484, 1497 (9th Cir. 1995); Sangster v.
United Air Lines, Inc., 633 F.2d 864, 868 (9th Cir. 1980). The
employer must prove “that, based on the undisputed facts in the
record, during the time in question there were substantially
equivalent jobs available, which [the plaintiff] could have
obtained, and that [the plaintiff] failed to use reasonable
diligence in seeking one.” Odima, 53 F.3d at 1497 (quoting EEOC
v. Farmer Bros. Co., 31 F.3d 891, 906 (9th Cir. 1994) (emphasis
and alterations in original)). See also Sias v. City
Demonstration Agency, 588 F.2d 692, 696 (9th Cir. 1978) (“To
satisfy this burden, defendant must establish (1) that the damage

4 It is unclear whether Plaintiff ever asserted such a
claim, as her Complaint neither states a claim for emotional
distress nor specifies such damages in the prayer for relief.
See ECF No. 1-2.

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suffered by plaintiff could have been avoided, I. e. [sic] that
there were suitable positions available which plaintiff could
have discovered for which he was qualified; and (2) that
plaintiff failed to use reasonable care and diligence in seeking
such a position.”).

The term “substantially equivalent employment” “covers

many things, including rate of pay, hours, working conditions,
location of the work, kind of work, and seniority rights, if
any.” N.L.R.B. v. Carlisle Lumber Co., 99 F.2d 533, 539 (9th
Cir. 1938). See also Sellers v. Delgado Coll., 902 F.2d 1189,
1193 (5th Cir. 1990) (“Substantially equivalent employment is
that employment that afford virtually identical promotional
opportunities, compensation, job responsibilities, working
conditions, and status as the position from which the Title VII
claimant has been discriminatorily terminated.”). An unemployed
claimant “need not go into another line of work, accept a
demotion, or take a demeaning position” to mitigate damages.
Ford Motor Co. v. E.E.O.C., 458 U.S. 219, 231-32 (1982).

Here, Defendant does not even attempt to show that

there were substantially equivalent positions to escrow manager
available to Plaintiff after she was terminated. Because
Defendant failed to meet its burden, summary judgment as to
Plaintiff’s request for back pay should be denied on that basis
alone. See Hughes v. Mayoral, 721 F. Supp. 2d 947, 968 (D. Haw.
2010) (denying hotel employer’s motion for summary judgment as to

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bellman and security guard’s request for back pay where employer
pointed to newspaper advertisements for security guard, wait
staff, and valet positions but failed to explain how these
positions had virtually identical promotional opportunities,
compensation, job responsibilities, working conditions, and
status as plaintiff’s former position).

Rather, relying on Caudle, Defendant states that
Plaintiff’s “voluntary decision” to not apply for such work
demonstrates that she failed to mitigate damages. Def.’s Mem.
Supp. Mot. 32 (citing Caudle, 224 F.3d at 1020-21). In Caudle,
however, the plaintiff’s voluntary withdrawal from the workplace
was due to her independent decision to stay home to care for her
young child. Caudle, 224 F.3d at 1019. The plaintiff “never
alleged (and there is no reason to otherwise believe) that her
decision to withdraw from the workforce . . . was in any way
affected by [her employer’s] discriminatory termination of her
employment.” Id. at 1020. In this case, by contrast, Plaintiff
specifically asserts that she “was upset about what happened and
was afraid to go back to an escrow job, so [she] tried her own
business for awhile when [she] did not get calls back about jobs
[she] applied for in [her] field.” Machado Decl. ¶ 34. Because
Plaintiff’s withdrawal was related to Defendant’s allegedly
discriminatory termination of her employment, summary judgment as
to back pay is denied.

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C.

Front Pay
“Front pay” is “money awarded for lost compensation
during the period between the judgment and reinstatement or in
lieu of reinstatement.” Pollard v. E.I. du Pont de Nemours &
Co., 532 U.S. 843, 846 (2001). Defendant contends that Plaintiff
has no claim for front pay because Plaintiff is currently
employed at the same rate of pay during her employment with
Defendant. Defendant fails, however, to provide evidence of
Plaintiff’s pay rate while employed with Defendant to compare to
her current pay rate with her new employer. Accordingly,
Defendant’s request for summary judgment as to front pay is
denied.

D.

Other Special Damages
In addition to back pay and front pay, Plaintiff

asserts the following special damages resulting from her
termination: health insurance costs of $300 per month, late fees
on mortgage payments of $150 per month, use of savings to start a
business, and borrowed monies from family and a jewelry sale to
pay bills. See Fukui Decl. Ex. I, at ¶ 11. Defendant contends
that these claims for damages should be dismissed because
Plaintiff has no evidence to support these claims and has failed
to make the required disclosures regarding these items pursuant
to Rule 26 of the Federal Rules of Civil Procedure. In response
to Defendant’s assertion that Plaintiff did not provide a
computation or documents in support of these special damages, see

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Def.’s Concise Statement of Facts (“CSOF”), ECF No. 25-4, at ¶
20, Plaintiff states that she has submitted tax returns to
support her “wage loss” damages calculation of $57,000.00. See
Pl.’s Opp. CSOF, ECF No. ¶ 20; Machado Decl. ¶¶ 35-36. Any
calculation of “wage loss” damages, however, would go toward
Plaintiff’s claims for back pay and possibly front pay. The
other special damages claims specified by Defendant were
uncontroverted by Plaintiff, and, at the hearing on the Motion,
Plaintiff’s counsel conceded that Plaintiff had not presented
evidence to support these damages. See LR 56.1(g) (“For the
purposes of a motion for summary judgment, material facts set
forth in the moving party’s concise statement will be deemed
admitted unless controverted by a separate concise statement of
the opposing party.”). Therefore, the Court finds that
Plaintiff’s claim for other special damages should be dismissed
and summary judgment should be granted.

E.

Punitive Damages
“An award of punitive damages under Title VII is proper

where the acts of discrimination giving rise to liability are
willful and egregious, or display reckless indifference to the
plaintiff’s federal rights.” Ngo v. Reno Hilton Resort Corp.,
140 F.3d 1299, 1304 (9th Cir. 1998). To be entitled to punitive
damages, the plaintiff must demonstrate that the employer “almost
certainly knew that what he was doing was wrongful and subject to
punishment.” Id. Under Hawaii law, punitive damages are

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permitted when the plaintiff shows “by clear and convincing
evidence that the defendant has acted wantonly or oppressively or
with such malice as implies a spirit of mischief or criminal
indifference to civil obligations, or where there has been some
wilful misconduct or entire want of care which would raise the
presumption of a conscious indifference to the consequences.”
Kahale v. ADT Auto. Servs., Inc., 2 F. Supp. 2d 1295, 1303 (D.
Haw. 1998) (quoting Masaki v. Gen. Motors Corp., 71 Haw. 1, 16-
17, 780 P.2d 566, 575 (1989)). Accepting the allegations in
Plaintiff’s Complaint as true, there is no showing that
Defendant’s actions meet this high standard. Indeed, Plaintiff
did not dispute Defendant’s arguments with respect to this claim
in her opposition. Therefore, the Court finds that Plaintiff’s
request for punitive damages should be dismissed and summary
judgment should be granted.

CONCLUSION

In accordance with the foregoing, the Court HEREBY
GRANTS IN PART AND DENIES IN PART Defendant The Real Estate
Resource, LLC, dba Prudential Advantage Realty’s Motion for
Summary Judgment, filed on June 13, 2013, as follows:
(1) As to Plaintiff’s claim for employment

discrimination under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e-2(a), summary judgment is DENIED.

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(2) As to Plaintiff’s claim for employment

discrimination under § 378-2 of the Hawaii Revised Statutes,
summary judgment is DENIED.

(3) As to Plaintiff’s claims for special damages

related to back pay and front pay, summary judgment is DENIED.
(4) As to Plaintiff’s claims for damages related to

emotional distress, other special damages (health insurance
costs, late fees on mortgage payments, use of savings to start a
business, and borrowed monies from family and a jewelry sale to
pay bills), and punitive damages, summary judgment is GRANTED and
these claims are DISMISSED.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, JULY 30, 2013.



_____________________________
Richard L. Puglisi
United States Magistrate Judge

MACHADO V. THE REAL ESTATE RESOURCE LLC, ET AL.; CIVIL NO. 12-
00544 RLP; MEMORANDUM OPINION AND ORDER GRANTING IN PART AND
DENYING IN PART DEFENDANT THE REAL ESTATE RESOURCE, LLC, dba
PRUDENTIAL ADVANTAGE REALTY’S MOTION FOR SUMMARY JUDGMENT

29