                                                                              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                           NOT FOR PUBLICATION                                OCT 29 2014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

                                         2
evidence to avoid summary judgment on any of her other claims. Therefore, her

punitive damages claim cannot succeed.

      AFFIRMED.




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