Aileen Mariano v. Liberty Dialysis-Hawaii

FILED
NOT FOR PUBLICATION OCT 29 2014
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
AILEEN MARIANO, No. 13-15452
Plaintiff - Appellant, D.C. No. 1:11-cv-00652-LEK-BMK
v.
MEMORANDUM*
LIBERTY DIALYSIS-HAWAII, LLC,
DBA Liberty Dialysis,
Defendant - Appellee.
Appeal from the United States District Court
for the District of Hawaii
Leslie E. Kobayashi, District Judge, Presiding
Submitted October 8, 2014**
University of Hawaii William S. Richardson School of Law
Honolulu, Hawaii
Before: TASHIMA, RAWLINSON, and CLIFTON, Circuit Judges.
Aileen Mariano appeals the district court’s summary judgment in favor of
Liberty Dialysis-Hawaii on claims of sexual harassment, negligent and intentional
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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, 38 P.3d 95, 106 (Hawaii
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, 91 P.3d 505, 514
(Hawaii 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, 73 P.3d
46, 60-61 (Hawaii 2003).
Claims for punitive damages are derivative of other claims. Ross v. Stouffer
Hotel Co. (Hawai’i) Ltd., 879 P.2d 1037, 1049 (1994). Mariano has not presented
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evidence to avoid summary judgment on any of her other claims. Therefore, her
punitive damages claim cannot succeed.
AFFIRMED.
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