Aileen Mariano v. Liberty Dialysis-Hawaii

585 F. App'x 600

• Court: Court of Appeals for the Ninth Circuit
• Decided: October 29, 2014
• Docket: 13-15452
• Status: Unpublished

Opinion

MEMORANDUM **

Aileen Mariano appeals the district court’s summary judgment in favor of Liberty Dialysis-Hawaii on claims of sexual harassment, negligent and intentional infliction of emotional distress, and punitive damages, all arising under Hawaii law. Mariano has not presented evidence to demonstrate Patient E’s actions were severe or pervasive. See Nelson v. Univ. of Hawaii, 97 Hawaii 376, 38 P.3d 95, 106 (2001). LDH can be held liable for its employees’ sexual harassment claims only when it was or should have been aware of and failed to take adequate steps to end the harassment. Arquero v. Hilton Hawaiian Village LLC, 104 Hawai'i 423, 91 P.3d 505, 514 (2004). Mariano only reported to LDH Patient E’s multiple touches of her shoulder and arm, which was not severe or pervasive activity. LDH cannot be held liable for this conduct because it responded promptly and thoroughly to Mariano’s complaint.

Mariano’s claim for negligent infliction of emotional distress is barred by Hawaii’s workers’ compensation law, H.R.S. § 386-5, because it is not related to the alleged sexual harassment.

Because the record indicates LDH’s conduct was not outrageous or beyond the bounds of decency, we affirm summary judgment on Mariano’s claim for intentional infliction of emotional distress. See Hac v. Univ. of Hawaii, 102 Hawai'i 92, 73 P.3d 46, 60-61 (2003).

Claims for punitive damages are derivative of other claims. Ross v. Stouffer Hotel Co. (Hawai’i) Ltd., 76 Hawai’i 454, 879 P.2d 1037, 1049 (1994). Mariano has not presented evidence to avoid summary judgment on any of her other claims. Therefore, her punitive damages claim cannot succeed.

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.