Dowkin et al v. Honolulu Police Department et al
Filing
720
ORDER REGARDING DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT AND JOINDERS THERETO re 586 Motion for Partial Summary Judgment; re 588 Motion for Summary Judgment; re 591 Motion for Partial Summary Judgment; re 593 Motion for Summary Judgment; re 603 Motion for Joinder; re 604 Motion for Joinder; re 605 Motion for Joinder; re 606 Motion for Joinder. - Axt's Motion for Partial Summary Judgment Against Plain tiff Sergeant Shermon Dean Dowkin on the Fifth Cause of Action of the Third Amended Complaint (Intentional Infliction of Emotional Distress), filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY GRANTED;- Ta naka and Kashimoto's Motion for Summary Judgment Regarding Punitive Damages and Any Other Outstanding Claims, filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY GRANTED IN PART AND DENIED IN PART;- Kw on and Fernandez's Motion for Partial Summary Judgment Against All Plaintiffs on the Third Cause of Action in the Third Amended Complaint (Violations of the Hawaii Civil Rights Law - HRS Section 378-2(3)), filed April 15, 2015, and the City' ;s joinder thereto, filed April 21, 2015, are HEREBY DENIED; and- Kwon and Fernandez's Motion for Summary Judgment as to Punitive Damages, filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY DENIED. Signed by JUDGE LESLIE E. KOBAYASHI on 07/24/2015. The Court summarizes the remaining claims in this matter:- Count I, race and gender discrimination, in violation of Title VII of the Civil Rights Act of 1 964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2, et seq., by all Plaintiffs against the City;- Count II, race discrimination, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., by Dowkin and Delgadillo against the City;- Count III, violations of Haw. Rev. Stat. § 378-2(1) and (2) by all Plaintiffs against the City, and violations of § 378-2(3) by all Plaintiffs against Fernandez and Kwon; and- Count V, intent ional infliction of emotional distress by Dowkin against Kashimoto as to the October 11, 2010 incident, and by Bennett Huihui against Tanaka as to the October 18, 2010 Porky's Incident. (eps )CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
SERGEANT SHERMON DEAN DOWKIN,
OFFICER FEDERICO DELGADILLO
MARTINEZ, JR., and OFFICER
CASSANDRA BENNETT HUIHUI,
)
)
)
)
)
Plaintiffs,
)
)
vs.
)
)
)
THE CITY AND COUNTY OF
)
HONOLULU, FORMER CHIEF OF
)
POLICE BOISSE CORREA,
)
CURRENT CHIEF OF POLICE
)
LOUIS KEALOHA, ASSISTANT
)
CHIEF MICHAEL TAMASHIRO,
)
MAJOR KENNETH SIMMONS,
)
MAJOR JOHN MCENTIRE,
)
CAPTAIN NYLE DOLERA,
)
LIEUTENANT MICHAEL SERRAO,
)
LIEUTENANT DAN KWON,
)
LIEUTENANT WILLIAM AXT,
)
SERGEANT WAYNE FERNANDEZ,
)
SERGEANT RALSTAN TANAKA,
)
OFFICER COLBY KASHIMOTO,
)
PAT AH LOO,
)
)
Defendants.
_____________________________ )
CIVIL 10-00087 LEK-RLP
ORDER REGARDING DEFENDANTS’ MOTIONS FOR
SUMMARY JUDGMENT AND JOINDERS THERETO
Before the Court are the following motions, all filed
on April 15, 2015: (1) Defendant Lieutenant William Axt’s (“Axt”)
Motion for Partial Summary Judgment Against Plaintiff Sergeant
Shermon Dean Dowkin on the Fifth Cause of Action of the Third
Amended Complaint (Intentional Infliction of Emotional Distress)
(“Axt IIED Motion”); (2) Defendants Sergeant Ralstan Tanaka
(“Tanaka”) and Officer Colby Kashimoto’s (“Kashimoto”) Motion for
Summary Judgment Regarding Punitive Damages and Any Other
Outstanding Claims (“Tanaka & Kashimoto Punitive Damages
Motion”); (3) Defendants Lieutenant Dan Kwon (“Kwon”) and
Sergeant Wayne Fernandez’s (“Fernandez”) Motion for Partial
Summary Judgment Against All Plaintiffs on the Third Cause of
Action in the Third Amended Complaint (Violations of the Hawaii
Civil Rights Law - HRS Section 378-2(3)) (“Kwon & Fernandez
§ 378-2(3) Motion”);1 and (4) Kwon and Fernandez’s Motion for
Summary Judgment as to Punitive Damages (“Kwon & Fernandez
Punitive Damages Motion,” all collectively, “Motions”).
nos. 586, 588, 591, 593.]
[Dkt.
Defendant the City and County of
Honolulu (“the City”) filed a joinder in each motion on April 21,
2015.
[Dkt. nos. 603-06.]
Plaintiffs Sergeant Shermon Dean Dowkin (“Dowkin”),
Frederico Delgadillo Martinez, Jr. (“Delgadillo”), and Cassandra
Bennett Huihui2 (“Bennett Huihui,” collectively “Plaintiffs”)
filed a memorandum in opposition to each motion on June 15, 2015.
[Dkt. nos. 686, 689, 682, 684.]
Axt, Tanaka and Kashimoto, and
Kwon and Fernandez filed their respective replies on June 22,
1
What was Haw. Rev. Stat. § 378-2(3) at
filed their charges of discrimination, is now
§ 378-2(a)(3). The instant Order applies the
at the time of the alleged violations and the
charges.
2
the time Plaintiffs
Haw. Rev. Stat.
version in effect
filing of the
Prior to November 7, 2014, Bennett Huihui was referred to
in the case as Cassandra Bennett-Bagorio. [Dkt. no. 483.]
2
2015.
[Dkt. nos. 698, 695, 697, 696.]
These matters came on for hearing on July 6, 2015.
After careful consideration of the Motions, supporting and
opposing memoranda, and the arguments of counsel, this Court
rules as follows: the Axt IIED Motion is HEREBY GRANTED; the
Tanaka & Kashimoto Punitive Damages Motion is HEREBY GRANTED IN
PART AND DENIED IN PART; the Kwon & Fernandez § 378-2(3) Motion
is HEREBY DENIED; and the Kwon & Fernandez Punitive Damages
Motion is HEREBY DENIED.
BACKGROUND
The general factual and procedural background of this
case is set forth in this Court’s May 1, 2015 order addressing
four previous defense motions for summary judgment (“5/1/15
Order”).
[Dkt. no. 615.]
This Court will only repeat the
background that is relevant to the Motions currently before it.
I.
Axt IIED Motion
Count V, Plaintiffs’ intentional infliction of
emotional distress (“IIED”) claim, alleges that, “[b]y committing
the acts and omissions” that Plaintiffs allege, “Defendant Axt
inflicted emotional distress on Plaintiffs Dowkin and
Delgadillo.”
[Third Amended Complaint for Compensatory,
Statutory and Punitive Damages (“Third Amended Complaint”), filed
1/17/12 (dkt. no. 221), at ¶ 167.]
3
The Axt IIED Motion contends that Dowkin and Delgadillo
have not presented any evidence to establish that Axt engaged in
the type of outrageous conduct necessary to support an IIED
claim.
Axt notes that paragraph 112 of the Third Amended
Complaint provides a list of dates on which Dowkin and/or
Delgadillo were allegedly denied back-up cover when Axt was onduty or otherwise available.
However, during his deposition,
Dowkin testified that he has no independent recollection of the
denials of cover that the Third Amended Complaint alleges
occurred on: February 22 and 29, 2008; March 8, 16, and 26, 2008;
April 19, 2008; and June 7, 2008.
[Separate & Concise Statement
of Facts in Supp. of Axt IIED Motion (“Axt’s IIED CSOF”), filed
4/15/15 (dkt. no. 587), Decl. of Jerold T. Matayoshi (“Matayoshi
Decl.”), Exh. A (Excerpts of Trans. of 4/4/11 Depo. of Shermon
Dowkin (“Axt’s Dowkin Depo.”)) at 243-44, 246-49, 253-254, 258.]
Dowkin’s deposition testimony also indicates that, during some of
these incidents, Delgadillo or another officer arrived on the
scene to provide back-up cover or other assistance to Dowkin.
[Id. at 244-50, 254-55.]
Moreover, even assuming, arguendo, that
there was a denial of back-up cover, Plaintiffs have failed to
present any evidence that Axt was responsible for those
incidents.
Axt argues that the mere fact that he was on-duty
when an alleged failure to provide cover occurred is not enough
for Dowkin’s IIED claim to survive summary judgment.
4
As to Delgadillo, Axt emphasizes that Delgadillo
testified that he had no independent recollection of the alleged
failure to cover incidents on February 22 and 29, 2008, April 6,
2008, and June 7, 2008.
[Matayoshi Decl., Exh. B (Excerpts of
Trans. of 4/6/11 Depo. of Officer Federico Delgadillo Martinez,
Jr. (“Axt’s Delgadillo Depo.”)) at 65-66, 105-07, 157.]
Delgadillo testified that he covered Dowkin during the April 6,
2008 alleged incident, and several times on June 7, 2008.
However, he could not recall if he covered Dowkin on the specific
June 7 back-up calls at issue in this case.
59.]
[Id. at 65-66, 157-
Axt argues that, as with Dowkin’s allegations of failure to
provide back-up cover, there is no evidence that he was directly
responsible.
Dowkin and Delgadillo also testified that Axt:
subjected them to unfair enforcement of Honolulu Police
Department (“HPD”) rules and other unfair internal orders; gave
Dowkin poor performance ratings that he did not deserve;
pressured Delgadillo not to complain about undeserved performance
ratings by Fernandez; and transferred or threatened to transfer
them in retaliation for their complaints.
Axt argues that these
do not rise to the level of outrageous conduct necessary to
support an IIED claim.
5
II.
Tanaka & Kashimoto Punitive Damages Motion
Tanaka and Kashimoto emphasize that the only claims
against them in the Third Amended Complaint are: Count III,
Plaintiffs’ claim pursuant to Haw. Rev. Stat. § 378-2(3);
Count V, Plaintiffs’ IIED claim; and Count VI, Bennett Huihui’s
negligent infliction of emotional distress (“NIED”) claim against
Tanaka.
The Third Amended Complaint seeks punitive damages
against Tanaka and Kashimoto, among others.
In light of the
5/1/15 Order, the following claims remain: Bennett Huihui’s IIED
claim against Tanaka based on the Porky’s Incident; Dowkin’s IIED
claim against based on the April 6, 2008 incident; and Dowkin’s
IIED claim against Kashimoto based on the October 11, 2010
incident.3
Tanaka and Kashimoto argue that Delgadillo has no
remaining claims against either of them, and Bennett Huihui has
no remaining claims against Kashimoto.
Thus, they argue that
this Court should grant this motion as to Delgadillo’s request
for punitive damages against Tanaka and as to Bennett Huihui’s
and Delgadillo’s request for punitive damages against Kashimoto.
Tanaka and Kashimoto also argue that, as to the remaining claims
against them, they are entitled to summary judgment on the
request for punitive damages because Plaintiffs have not
3
In the 5/1/15 Order, this Court described: the Porky’s
Incident at pages 6 and 10 to 13; the April 6, 2008 incident at
page 15; and the October 11, 2010 incident at pages 16-18.
6
identified evidence that constitutes clear and convincing
evidence that Tanaka and Kashimoto “acted wantonly or
oppressively or with such malice as implies a spirit of mischief
or criminal indifference to civil obligations.”
[Tanaka &
Kashimoto Punitive Damages Reply at 11 (internal quotation marks
omitted).]
III. Kwon & Fernandez § 378-2(3) Motion
The Kwon & Fernandez § 378-2(3) Motion first argues
that they are entitled to summary judgment as to Count III
because Plaintiffs failed to exhaust their administrative
remedies.
The arguments that they raise are the same as those
addressed in the 5/1/15 Order, which granted summary judgment to
Tanaka and Kashimoto as to the claims in Count III against them.
Plaintiffs raise the same arguments that they raised in their
opposition to Tanaka and Kashimoto’s motion for summary judgment
as to Count III.
However, they note that, unlike Tanaka and
Kashimoto, Kwon and Fernandez were named within the factual
statements of Plaintiffs’ charges of discrimination.
Kwon and Fernandez also argue that, even if this Court
concludes that Plaintiffs properly exhausted their § 378-2(3)
claims against them, Kwon and Fernandez are still entitled to
summary judgment because Plaintiffs have not presented evidence
to establish necessary elements of their claims.
7
IV.
Kwon & Fernandez Punitive Damages Motion
Kwon and Fernandez emphasize that, in its June 18, 2015
Order Granting Defendants’ Motions for Summary Judgment and
Joinders Thereto (“6/18/15 Order”), this Court granted summary
judgment in their favor as to Counts V and VI.
[Dkt. no. 692.4]
They argue that, if this Court also grants the Kwon & Fernandez
§ 378-2(3) Motion, this Court will have granted summary judgment
in their favor as to all claims against them, and it should also
grant summary judgment as to Plaintiffs’ request for punitive
damages against them.
Even if this Court denies the Kwon &
Fernandez § 378-2(3) Motion, they argue that this Court should
still grant summary judgment in their favor as to Plaintiffs’
request for punitive damages.
They contend that Plaintiffs have
not shown that there is admissible evidence that they acted
“wantonly, oppressively, and/or with malice or such want of care
that would raise the presumption of conscious indifference to
consequences.”
[Kwon & Fernandez Punitive Damages Reply at 3.]
DISCUSSION
I.
Axt IIED Motion
The standards that this Court must apply to Plaintiffs’
IIED claims are set forth in the 5/1/15 Order.
In that order,
this Court found that, “if Plaintiffs can prove that Tanaka
denied Bennett Huihui and/or Dowkin back-up cover for
4
The 6/18/15 Order is also available at 2015 WL 3822282.
8
discriminatory and/or retaliatory purposes, reasonable people
could differ as to the question of whether this constitutes
outrageous conduct sufficient to support an IIED claim, and the
issue must be determined by the jury.”
5/1/15 Order at 42
(footnote omitted) (citing Young v. Allstate Ins. Co., 119
Hawai`i 403, 429, 198 P.3d at 666, 692 (2008)).5
Thus, if
Plaintiffs can present evidence which raises a genuine issue of
fact as to whether Axt denied Dowkin and/or Delgadillo back-up
cover for discriminatory and/or retaliatory purposes, those
portions of their IIED claim may proceed to trial.
See Fed. R.
Civ. P. 56(a) (stating that a party is entitled to summary
judgment “if the movant shows that there is no genuine dispute as
to any material fact and the movant is entitled to judgment as a
matter of law”).
In support of the Axt IIED Opposition, Plaintiffs
submitted an affidavit by Dowkin, an affidavit by Delgadillo, and
excerpts of their deposition transcripts.
[Pltfs.’ Separate
Concise Statement of Facts in Supp. of Axt IIED Opp. (“Pltfs.’
Axt IIED CSOF”), filed 6/15/15 (dkt. no. 690), Aff. of Shermon
Dean Dowkin (“Dowkin Aff.”); id., Aff. of Federico Delgadillo
5
In Young, the Hawai`i Supreme Court stated: “The question
whether the actions of the alleged tortfeasor are unreasonable or
outrageous is for the court in the first instance, although where
reasonable people may differ on that question it should be left
to the jury.” 119 Hawai`i at 429, 198 P.3d at 692 (citation and
quotation marks omitted).
9
Martinez, Jr. (“Delgadillo Aff.”); id., Decl. of Counsel
(“Bennett Axt IIED Decl.”), Exh. A (Excerpts of Trans. of 4/4/11
and 4/5/11 Depo. of Shermon Dowkin (“Pltfs.’ Dowkin Depo.”));
Bennett Axt IIED Decl., Exh. B (Excerpts of Trans. of 4/6/11
Depo. of Officer Federico Delgadillo Martinez, Jr. (“Pltfs.’
Delgadillo Depo.”)).]
The Dowkin Affidavit and the Delgadillo
Affidavit are both dated in February 2015, and neither address
the claims against Axt.
Thus, the affidavits do not support a
triable issue of fact as to the IIED claims against Axt.
A.
Axt as a Supervisor
Dowkin testified that Axt was his immediate supervisor
beginning in January 2008.
does not dispute this.
[Pltfs.’ Dowkin Depo. at 54-55.]
Axt
Although Plaintiffs acknowledge the prior
rulings that this Court has made regarding their IIED claims
against other defendants, they argue that Axt “should be held to
a higher standard” because he is a supervisor.
10.]
[Axt IIED Opp. at
They assert that “‘[e]vidence of discriminatory animus
exhibited by an individual who influenced or participated in the
decision making process is sufficient to overcome summary
judgment.’”
[Id. (quoting Dominguez-Curry v. Nev. Transp. Dep’t,
424 F.3d 1027, 1040 n.5 (9th Cir. 2005)).]
is misplaced.
Plaintiffs’ argument
Dominguez-Curry involved an appeal from the grant
of summary judgment in favor of the defendants on Title VII
claims alleging a hostile work environment and a failure to
10
promote.
See 424 F.3d at 1042.
There was no IIED claim.
Thus,
Dominguez-Curry does not support Plaintiffs’ proposition that the
threshold for their IIED claims against Axt to survive summary
judgment is lower than the threshold for their IIED claims
against other Defendants.
At the hearing on the Motions, Plaintiffs’ counsel
argued that Dowkin and Delgadillo can base their IIED claims
against Axt upon the actions of Axt’s subordinates.
Plaintiffs,
however, cite no legal authority to support this proposition.
In
order to be held liable for IIED, Axt must have committed an act
that, inter alia, was intentional or reckless.
Hawai`i at 429, 198 P.3d at 692.
See Young, 119
This requires that:
the defendant acted either with a “desire to
inflict severe emotional distress, . . . where he
knows that such distress is certain, or
substantially certain, to result from his conduct”
or “recklessly . . . in deliberate disregard of a
high degree of probability that the emotional
distress will follow.” Restatement (Second) Torts
Section 46, cmt. i (1965).
Recklessness, unlike negligence, involves
more than “inadvertence, incompetence,
unskillfulness, or a failure to take precautions”
but instead rises to the level of a “conscious
choice of a course of action . . . with knowledge
of the serious danger to others involved in it.”
See Restatement (Second) Torts, § 500, cmt. g. As
is clear, context matters in determining if
conduct is reckless.
Ritchie v. Wahiawa Gen. Hosp., 597 F. Supp. 2d 1100, 1110 (D.
Hawai`i 2009) (alterations in Ritchie) (some citations omitted).
Plaintiffs cannot establish this type of intentional or reckless
11
act by merely proving that Axt was the supervisor of the
individuals who allegedly caused Dowkin and/or Delgadillo extreme
emotional distress.
In order for Dowkin and Delgadillo’s IIED
claims against Axt to survive summary judgment, Plaintiffs must
identify evidence which creates a genuine issue of fact as to
whether Axt was personally involved in the act which caused the
extreme emotional distress or he engaged in an intentional or
reckless act that caused or allowed another person to commit the
act which caused the extreme emotional distress.
B.
Denial of Back-up Cover
Based on Plaintiffs’ own evidence, Axt was not the
defendant who ordered other officers not to help the driving
under the influence (“DUI”) team.6
According to Dowkin, he heard
from Delgadillo, Bennett Huihui, and other officers that
Fernandez ordered officers not to help the DUI team.
Dowkin Depo. at 63-64.]
[Pltfs.’
Dowkin has also stated that: “It was
Officer Kashimoto who would be working and ensuring that the
order to not cover off or provide back up for me and Officer
Delgadillo was carried out at all times.”
6
[Dowkin Aff. at ¶ 33.]
Plaintiffs allege that: “In 2003, Sgt. Dowkin was assigned
to head an elite team to enforce DUI laws in District 4, which
would require Sgt. Dowkin and the officers on his team to make
potentially dangerous traffic stops of individuals under the
influence of drugs and/or alcohol.” [Third Amended Complaint at
¶ 37.] Delgadillo worked under Dowkin as a DUI team officer.
[Id. at ¶ 40.]
12
1.
Failure to Respond to Denial of Cover Incidents
Plaintiffs apparently argue that Dowkin informed Axt
about the denial of back-up cover to the DUI team, but Axt failed
to respond appropriately.
Dowkin testified that he met with Axt
around January 8, 2008 to discuss the issue, and Axt responded by
asking Dowkin if he had ever had Criminal Investigations Division
(“CID”) training.
[Pltfs.’ Dowkin Depo. at 56-57.]
Later that
night, Dowkin had a second meeting with Axt, and Axt said “they”
were considering transferring Dowkin to CID for training because
he “was disruptive to the watch.”
[Id. at 58, 60.]
Dowkin
construed this as a threat that he would be punished if he
complained about the denial of back-up cover.
123, 139.]
[Id. at 61-62,
In particular, he construed it as a threat by Axt
because Axt was “part of the command staff or the hierarchy.”
[Id. at 131.]
First, Plaintiffs have not presented any evidence which
suggests that Axt was responsible for ensuring that other
officers provided back-up cover to the DUI team each time a
member of the team requested cover.
Dowkin merely testified
that, in general, if an officer notifies HPD dispatch that he or
she needs cover for a traffic stop, “their procedure is to
automatically send cover unless the officer canceled cover.”
[Id. at 137.]
Second, even if it could be reasonably inferred
from Axt’s position that he was responsible for acting upon
13
Dowkin’s report on January 8, 2008, Plaintiffs have not presented
evidence which raises a triable issue of fact that Axt failed to
respond appropriately.
Dowkin has asserted that, after he reported the denial
of cover issue to Axt on January 8, 2008, Axt threatened to send
him to CID training to dissuade him from complaining about the
denial of cover issue.
123, 139.]
[Pltfs.’ Dowkin Depo. at 56-58, 60-62,
First, Plaintiffs have presented no evidence, other
than Dowkin’s testimony, that the CID training was a form of
punishment or disincentive that was intended to dissuade him from
reporting denials of back-up cover.
Further, based on Dowkin’s
deposition testimony, he merely assumed that Axt made the
perceived threat based on Axt’s position in the HPD chain of
command.
See id. at 131.
The only other evidence about what action Axt took in
response to the issue is the following testimony regarding a
meeting on January 9, 2008:
Q
. . . It says that you were summoned to
attend a meeting with Lieutenant Axt, Lieutenant
Kwon and Sergeant Fernandez, is that correct?
A
Yes.
Q
Okay. And then at this meeting you
claim that Sergeant Fernandez ordered another
officer not to cover you off, correct?
A
In this meeting, yes.
Q
This is the incident you testified about
where Officer Delgadillo had [an unauthorized
14
control of a propelled vehicle] case at The Shack
and Sergeant Fernandez told him to go to The
Shack?
A
On the radio, yes.
Q
Okay. And Lieutenant Axt took this
allegation very seriously, didn’t he?
A
He called a meeting right away.
guess that’s pretty serious.
So I
Q
And he requested that to-froms
[memoranda] be created to document this, correct?
A
No. Lieutenant Kwon requested it. He
requested - Lieutenant Kwon requested officer
Delgadillo submit a to-from explaining his
accusation that Sergeant Fernandez had ordered
officers not to cover the DUI team.
[Pltfs.’ Dowkin Depo. at 227-28.]
Thus, even viewing the record
in the light most favorable to Plaintiffs,7 the available
evidence merely establishes that, after being notified of the
denial of cover issue, Axt took a report of a specific incident
seriously.
Axt and another lieutenant called a meeting right
away and ordered that the incident be documented.
This Court
finds that the record before it does not create a genuine issue
of fact as to the issue of whether Axt’s response to Dowkin’s
report regarding the denial of back-up cover constituted
7
This district court has stated that, in considering a
motion for summary judgment, “[a]ll evidence and inferences must
be construed in the light most favorable to the nonmoving party.”
Maui Elec. Co. v. Chromalloy Gas Turbine, LLC, Civil No. 12–00486
SOM–BMK, 2015 WL 1442961, at *4 (D. Hawai`i Mar. 27, 2015)
(citing T.W. Elec. Serv., Inc. v. Pac. Elec. Contractors Ass’n,
809 F.2d 626, 631 (9th Cir. 1987)).
15
outrageous conduct that would support an IIED claim.
This Court therefore GRANTS the Axt IIED Motion as to
the portion of Dowkin’s and Delgadillo’s IIED claims against Axt
based upon his response to his subordinates’ alleged failure to
provide back-up cover to Dowkin and Delgadillo.
2.
Axt’s Failure to Provide Cover
In addition, Dowkin and Delgadillo each allege that
there were specific incidents when he was denied back-up cover
and that Axt was on-duty during those times, but Axt personally
failed to provide cover.
Plaintiffs allege that:
Specific instances of the failures to cover are as
follows:
On February 22, 2008; February 29, 2008;
March 8, 2008, at which time Lt. Axt was the
officer on duty; March 16, 2008, March 26, 2008,
at which time Lt.’s. Axt and Kwon and Sgt.
Fernandez were on duty; April 6, 2008, at which
time Lt. Axt and Sgt. Tanaka were on duty;
April 19, 2008, Sgt. Dowkin was not provided with
backup cover for a traffic stop and arrest,
despite his request for same, at which time Lt.
Axt and Sgt. Tanaka were on duty; on two occasions
on June 7, 2008, Sgt. Dowkin and Ofc. Delgadillo
were not provided with assistance in the field or
at the station, and on another occasion on June 7,
2008, Sgt. Dowkin was not provided with backup in
the field or assistance at the station, at which
time Lt. Axt and Sgt. Fernandez were on duty;
twice on July 30, 2008, Sgt. Dowkin was not
provided with backup cover at which time Lt. Axt,
Sgt. Fernandez and Ofc. Kashimoto were on
duty . . . .
[Third Amended Complaint at ¶ 112.]
16
a.
Dowkin’s IIED Claim
During his deposition, Dowkin testified that he has no
independent recollection of the alleged denials of back-up cover
on February 22 and 29, 2008, March 8, 16, and 26, 2008, April 19,
2008, and June 7, 2008.
Even viewing the incident reports did
not refresh his recollection; he had to rely on the contents of
the report.
258.]
[Axt’s Dowkin Depo. at 243-44, 246-49, 253-254,
Plaintiffs, however, did not submit the incident reports
with Plaintiffs’ Axt CSOF.
There is no evidence in the current
record regarding the alleged denial of back-up cover on July 30,
2008.
Since Dowkin has presented no evidence establishing a
failure to provide back-up cover, this Court finds that, even
viewing the record in the light most favorable to him, Dowkin has
failed to establish a prima facie case for the portion of his
IIED claim based on the alleged discriminatory and/or retaliatory
denial of back-up cover on February 22 and 29, 2008, March 8, 16,
and 26, 2008, April 19, 2008, and July 30, 2008.
Accord 5/1/15
Order at 37-38 (addressing similar failure of proof regarding
Delgadillo’s IIED claim against Tanaka).
Although Dowkin stated that he did not have an
independent recollection of the incident on June 7, 2008, and
Plaintiffs did not provide this Court with the report regarding
the incident, Dowkin gave other testimony regarding this
incident, and Plaintiffs filed a copy of the internal complaint
17
that Dowkin submitted stating that he was denied cover on that
day. [Pltfs.’ Dowkin Depo. at 134-37; Exh. 6,8 filed 6/24/15
(dkt. no. 699-6) (memorandum dated 7/9/08 to Boisse P. Correa,
Chief of Police, from Dowkin).]
According to Dowkin, on June 7,
2008, he informed the police dispatcher that he was conducting a
traffic stop on Ululani Street and Ulupii Street in Kailua, and
he provided the location and the vehicle’s license plate number.
[Pltfs.’ Dowkin Depo. at 134-35; Exh. 6 at 1.]
Dowkin testified
that, although he did not tell the dispatcher that he needed
back-up cover, it was “a given.”
[Pltfs.’ Dowkin Depo. at 135.]
According to Dowkin, there were “[n]umerous officers in the
Kailua and Waimanalo area [who] proceeded to [a] fire call.”
[Exh. 6 at 1.]
He asserts that, if they “were available for the
fire call, then someone should have covered [him] off on [his]
traffic stop.”
[Id.]
to the fire call.
Axt was one of the officers who responded
[Pltfs.’ Dowkin Depo. at 136.]
Even construing the record in the light most favorable
to Plaintiffs, the mere fact that Axt responded to a fire call
instead of providing back-up cover for Dowkin’s traffic stop does
not create a genuine issue of fact that Axt’s failure to provide
8
Exhibit 6 was part of a filing titled Exhibit 1-7 to
Plaintiffs’ Concise Statement of Facts in Support of Plaintiffs’
Memorandum in Opposition to [ECF No. 578] Defendant City and
County of Honolulu’s Motion for Partial Summary Judgment Re:
Fourth Cause of Action of Third Amended Complaint (Negligent
Training, Negligent Retention, Failure to Report and Investigate)
[ECF No. 651].
18
back-up cover was discriminatory or retaliatory.
Further, this
Court finds that reasonable minds could not differ on the issue
of whether Axt’s failure to provide cover was so outrageous as to
support an IIED claim.
This Court therefore GRANTS the Axt IIED Motion as to
the portion of Dowkin’s IIED claim against Axt based on the
discriminatory and/or retaliatory denial of back-up cover on
February 22 and 29, 2008, March 8, 16, and 26, 2008, April 19,
2008, June 7, 2008, and July 30, 2008.
Dowkin testified that he has an independent
recollection of the April 6, 2008 arrest when he was denied backup cover while Axt and Tanaka were on duty.
In addition, Dowkin
stated that he has a video recording of this arrest which clearly
shows that he called for cover and no one came.
Depo. at 254-55.]
[Axt’s Dowkin
Axt emphasizes that Dowkin acknowledged during
his deposition that Delgadillo provided him with adequate cover
during this arrest.
[Axt’s IIED CSOF at ¶ 18.]
However, Dowkin
explained that Delgadillo was not on patrol at the time, and the
patrol officers failed to cover them.
254-55.]
[Axt’s Dowkin Depo. at
This Court, however, has previously found that
Delgadillo’s cover for Dowkin did not necessarily excuse other
officers from providing cover.
[5/1/15 Order at 40.]
This Court
has also found that, if Plaintiffs can prove that one of the
individual Defendants denied Dowkin “back-up cover for
19
discriminatory and/or retaliatory purposes, reasonable people
could differ as to the question of whether this constitutes
outrageous conduct sufficient to support an IIED claim, and the
issue must be determined by the jury.”
[Id. at 42 (footnote and
citation omitted).]
In order for Dowkin’s IIED claim based on the April 6,
2008 incident to survive summary judgment, he must, inter alia,
raise a genuine issue of fact as to whether Axt intentionally or
recklessly denied Dowkin back-up cover.
The only evidence in the
record addressing Axt’s involvement in the incident is Dowkin’s
testimony that Axt was on duty when the traffic stop occurred.
[Axt’s Dowkin Depo. at 254.]
There is no evidence that, for
example, Axt heard the dispatcher report that Dowkin needed cover
for a traffic stop, and Axt was expected to provide cover because
he was the closest available officer.
There is no indication in
the record that Axt was even aware of Dowkin’s traffic stop at
that time.
The mere fact that Axt was on-duty at the time of the
alleged denial of back-up cover on April 6, 2008 is not
sufficient to raise a genuine issue of fact as to whether Axt
intentionally or recklessly denied Dowkin cover.
This Court therefore FINDS that there are no genuine
issues of material fact regarding Axt’s involvement in the
April 6, 2008 incident, and CONCLUDES that Axt is entitled to
judgment as a matter of law as to that portion of Dowkin’s IIED
20
claim.
b.
Delgadillo’s IIED Claim
Delgadillo testified that he had no independent
recollection of the alleged failure to cover incidents on
February 22 and 29, 2008, April 6, 2008, and June 7, 2008.
[Axt’s Delgadillo Depo. at 65-66, 105-07, 157.]
As noted, supra,
Plaintiffs did not submit reports about these traffic stops.
Further, there is no evidence in the current record which would
establish any of the other incidents that are alleged in the
Third Amended Complaint when Delgadillo was denied back-up cover
for discriminatory and/or retaliatory reasons.
Since Delgadillo
has presented no evidence establishing a failure to provide backup cover, this Court finds that, even viewing the record in the
light most favorable to him, Delgadillo has failed to establish a
prima facie case for the portion of his IIED claim based on the
discriminatory and/or retaliatory denial of back-up cover.
This Court therefore FINDS that there are no genuine
issues of material fact as to the portions of Delgadillo’s IIED
claim against Axt based on the alleged denials of back-up cover.
This Court CONCLUDES that those portions of Delgadillo’s claim
fail as a matter of law, and Axt is entitled to summary judgment.
21
C.
Other Allegations
In addition to the limited evidence regarding Axt’s
alleged involvement in the denial of back-up cover, Plaintiffs
have submitted testimony that Axt, inter alia:
-held Dowkin and Delgadillo “to the HPD’s policies and practices
and procedures to the letter,” when he did not do so with
other officers; [Pltfs.’ Dowkin Depo. at 133, 146, 169;
Pltfs.’ Delgadillo Depo. at 92-96;]
-gave Dowkin “a less than deserved performance rating” in
retaliation for filing discrimination complaints; [Pltfs.’
Dowkin Depo. at 295;]
-pressured Delgadillo not to pursue a complaint that Fernandez
gave Delgadillo an unjustified poor performance evaluation
that Delgadillo believed was racially motivated; [Pltfs.’
Delgadillo Depo. at 83-85, 87-91;] and
-threatened Delgadillo with a transfer to a less desirable
district because it was easier to reassign Delgadillo than
it was to reassign Tanaka and Fernandez [id. at 126-28].
In addition, Plaintiffs argue that Axt failed to discipline
subordinates for making racist and sexist comments.
[Axt IIED
Opp. at 10.]
This district court has recognized that:
Hawaii’s definition of outrageous conduct
creates a very high standard of conduct in the
employment context. See Ross v. Stouffer Hotel
Co., 76 Hawai`i 454, 879 P.2d 1037, 1048 (Haw.
1994) (granting summary judgment for employer on
employee’s IIED claim); Ingle v. Liberty House,
Inc., Civil No. 94–0787(3), 1995 WL 757746, at *4
(Haw. Cir. Ct. Oct. 12, 1995) (noting, “In Ross,
the Hawaii Supreme Court recently has set an
extremely high, standard for such a claim in the
employment context[.]”). Under Hawai`i law,
termination alone is not sufficient to support an
IIED claim; rather, what is necessary is a showing
of something outrageous about the manner or
22
process by which the termination was accomplished.
As stated in Ingle, “[a]lthough intentional
infliction claims frequently are asserted in
connection with employee dismissals, recovery is
rare. Imposition of liability on this tort theory
is likely only in the unusual case when an
employer deliberately taunts an employee, or when
an employer handles an employee with outrageous
insensitivity.” Ingle, 1995 WL 757746, at *4
(quotation omitted; emphasis added).
Ho-Ching v. City & Cnty. of Honolulu, CV. No. 07–00237 DAE–KSC,
2009 WL 1227871, at *12
(D. Hawai`i Apr. 29, 2009) (alterations
in Ho-Ching) (some citations omitted).
Further, as this Court
has previously noted: “‘[M]ere insults, indignities, threats,
annoyances, petty oppressions, or other trivialities’ are
insufficient” to support an IIED claim.
[5/1/15 Order at 38
(some citations omitted) (quoting Young, 119 Hawai`i at 425, 198
P.3d at 688).]
Even construing the record in the light most favorable
to Plaintiffs, selective enforcement of HPD rules, policies, and
procedures, unfavorable performance ratings, and allowing racist
and sexist comments, are merely “insults, indignities, threats,
annoyances, petty oppressions, or other trivialities” that do not
rise to the level of outrageous conduct necessary to support an
IIED claim.
See 5/1/15 Order at 38 (some citations omitted)
(citing Shoppe v. Gucci Am., Inc., 94 Hawai`i 368, 387, 14 P.3d
1049, 1068 (2000) (holding that employer’s shouting at and
abusive manner toward employee, including public chastisement
about attire and comportment, were not outrageous as a matter of
23
law)).
Even assuming, arguendo, that any type of adverse
employment action - not just termination - may constitute
outrageous conduct “when an employer deliberately taunts an
employee, or when an employer handles an employee with outrageous
insensitivity,” there is no evidence indicating that this
occurred in connection with either the allegedly unjustified
performance evaluations, the failure to process Delgadillo’s
complaint about the unjustified evaluation that he received from
Fernandez, or the threatened transfers.
Further, even viewing
all of the alleged incidents as a whole, they do not constitute
the type of outrageous conduct necessary to support an IIED
claim.
This Court therefore FINDS that there are no genuine
issues of material fact as to the portions of Dowkin and
Delgadillo’s IIED claims against Axt based on incidents beyond
the denial of back-up cover.
This Court CONCLUDES that those
portions of their claims fail as a matter of law, and Axt is
entitled to summary judgment.
D.
Summary
As to all portions of Dowkin and Delgadillo’s IIED
claims against Axt, this Court FINDS that there are no genuine
issues of material fact, and CONCLUDES that Axt is entitled to
judgment as a matter of law.
This Court therefore GRANTS the Axt
24
IIED Motion.
II.
Dowkin’s Remaining IIED Claim against Tanaka
In light of the foregoing analysis, this Court sua
sponte reconsiders its ruling in the 5/1/15 Order that there are
genuine issues of material fact regarding whether Tanaka failed
to provide back-up cover to Dowkin in the April 6, 2008 incident.
[5/1/15 Order at 40.]
As with Axt, the only evidence in the
record regarding Tanaka’s alleged involvement in the April 6,
2008 incident is Dowkin’s testimony that Tanaka was on duty at
the time Dowkin conducted the traffic stop and the patrol
officers failed to cover him after he requested it.
[Pltfs.’
Separate Concise Statement of Facts in Supp. of Pltfs.’ Mem. in
Opp. to Def. Sergeant Ralstan Tanaka’s Motion for Partial Summary
Judgment on the Fifth Cause of Action of the Third Amended
Complaint (Intentional Infliction of Emotional Distress), filed
2/23/14 (dkt. no. 509), Exh. A (Excerpts of Trans. of 4/4/11
Depo. of Shermon Dowkin) at 254-55.]
For the same reasons set
forth supra Discussion Section I.B.2.a., this Court FINDS that
there are no genuine issues of material fact regarding Tanaka’s
involvement in the April 6, 2008 incident, and CONCLUDES that
Tanaka is entitled to judgment as a matter of law as to that
portion of Dowkin’s IIED claim.
This Court GRANTS Tanaka summary
judgment as to the portion of Dowkin’s IIED claim against him
25
based on the April 6, 2008 incident.9
III. Tanaka & Kashimoto Punitive Damages Motion
The Tanaka & Kashimoto Punitive Damages Motion first
seeks summary judgment as to Delgadillo’s request for punitive
damages against Tanaka and as to Bennett Huihui’s and
Delgadillo’s request for punitive damages against Kashimoto
because those Plaintiffs have no remaining claims against them.
In addition, now that this Court has granted summary judgment in
favor of Tanaka as to the only remaining portion of Dowkin’s IIED
claim against him, Dowkin has no remaining claims against Tanaka.
Under both federal law and Hawai`i law, punitive
damages are a remedy, not an independent cause of action.
See,
e.g., Cortez v. Skol, 776 F.3d 1046, 1050 n.2 (9th Cir. 2015);
Ross v. Stouffer Hotel Co. (Hawai`i) Ltd., 76 Hawai`i 454, 466,
879 P.2d 1037, 1049 (1994).
Insofar as Dowkin and Delgadillo
have no remaining claims against Tanaka, and Delgadillo and
Bennett Huihui have no remaining claims against Kashimoto, there
is no substantive basis upon which this Court could award
punitive damages.
This Court therefore GRANTS the Tanaka &
Kashimoto Punitive Damages Motion as to: Dowkin’s request for
punitive damages against Tanaka; Delgadillo’s request for
9
This Court emphasizes that this Order has no effect on the
other rulings in the 5/1/15 Order, including the denial of
Tanaka’s motion for summary judgment as to the portion of Bennett
Huihui’s IIED claim against him based on the Porky’s Incident.
26
punitive damages against Tanaka; and Bennett Huihui’s request for
punitive damages against Kashimoto.
The Tanaka & Kashimoto Punitive Damages Motion also
seeks summary judgment as to the remaining claims against them:
Bennett Huihui’s IIED claim against Tanaka; and Dowkin’s IIED
claim against Kashimoto.
Under Hawai`i law:
Punitive damages “are generally defined as
those damages assessed in addition to compensatory
damages for the purpose of punishing the defendant
for aggravated or outrageous misconduct and to
deter the defendant and others from similar
conduct in the future.” Masaki v. Gen. Motors
Corp., 71 Haw. 1, 6, 780 P.2d 566, 570 (1989)
(citations omitted). In order to recover punitive
damages, “[t]he plaintiff must prove 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 that entire
want of care which would raise the presumption of
a conscious indifference to consequences.” Id. at
16–17, 780 P.2d at 575 (citation omitted).
Ass’n of Apartment Owners of Newtown Meadows v. Venture 15, Inc.,
115 Hawai`i 232, 297, 167 P.3d 225, 290 (2007) (alteration in
Newtown Meadows) (emphases added).
Some of the elements that would support an award of
punitive damages, such as outrageous misconduct and willfulness
or entire want of care, overlap with the elements required to
establish an IIED claim.
See 5/1/15 Order at 36 (describing the
elements of an IIED claim).
Insofar as this Court has found that
there are genuine issues of material fact as to Bennett Huihui’s
27
IIED claim against Tanaka and Dowkin’s IIED claim against
Kashimoto, see id. at 39, 44, this Court FINDS that there are
genuine issues of material fact as to Bennett Huihui’s request
for punitive damages against Tanaka and Dowkin’s request for
punitive damages against Kashimoto.
Tanaka and Kashimoto are
therefore not entitled to summary judgment as to those requests.
The Tanaka & Kashimoto Punitive Damages Motion is
DENIED as to Bennett Huihui’s request for punitive damages
against Tanaka and Dowkin’s request for punitive damages against
Kashimoto.
III. Kwon & Fernandez § 378-2(3) Motion
A.
Exhaustion
This Court has previously described the standards
applicable to the issue of whether Plaintiffs exhausted their
administrative remedies as to their § 378-2(3) claims in Count V.
See 5/1/15 Order at pages 27-36 (granting Tanaka and Kashimoto’s
motion for summary judgment as to Count III).
As this Court noted in the 5/1/15 Order, there is no
Haw. Rev. Stat. § 378-2(1) or (2) claim against the City, nor is
there a § 378-2(3) claim against Kwon and/or Fernandez in any of
Plaintiffs’ charges of discrimination.
See Kwon & Fernandez’s
Concise Statement of Facts in Supp. of Kwon & Fernandez § 3782(3) Motion (“Kwon & Fernandez’s § 378-2(3) CSOF”), filed 4/15/15
(dkt. no. 592), Aff. of Cary T. Tanaka (“C. Tanaka § 378-2(3)
28
Aff.”), Exhs. A, B, B1, D, E, E1, G (Hawai`i Civil Rights
Commission Charges of Discrimination (collectively, “Plaintiffs’
Charges”))).
Thus, the issue currently before this Court is
whether Plaintiffs exhausted their § 378-2(3) claims against Kwon
and Fernandez, where none of them asserted those claims in his or
her respective charges.
As it did in the 5/1/15 Order, this Court must consider
the exceptions described in Sosa v. Hiraoka, 920 F.2d 1451, 145860 (9th Cir. 1990), to determine whether Kwon and Fernandez can
be sued under § 378-2(3), where they were not named in
Plaintiffs’ Charges.
See 5/1/15 Order at 29 (quoting the Hawai`i
Intermediate Court of Appeals’ (“ICA”) articulation of the Sosa
exceptions in Simmons v. Aqua Hotels & Resorts, Inc., 130 Hawai`i
325, 329, 310 P.3d 1026, 1030 (Ct. App. 2013)).10
10
There is no
In Simmons, the ICA noted that:
The Ninth Circuit has identified several
exceptions to the general rule that a party not
named in an EEOC charge cannot be sued under
Title VII. Suit is permitted against the unnamed
party when: (1) the unnamed party was involved in
the acts giving rise to the EEOC charge; (2) the
EEOC or the unnamed party should have anticipated
a Title VII suit against the unnamed party;
(3) the named party is a principal or agent of a
unnamed party or if they are substantially
identical; (4) the EEOC could have inferred that
the unnamed party violated Title VII; or (5) the
unnamed party had notice of the EEOC conciliation
efforts and participated in the EEOC proceedings.
Sosa v. Hiraoka, 920 F.2d 1451, 1458–60 (9th Cir.
1990).
(continued...)
29
evidence in the record that Kwon and Fernandez: received
Plaintiffs’ Charges; participated in the agency proceedings
regarding the charges; or received the right-to-sue letters
issued to Plaintiffs regarding the charges.
This Court therefore
finds that the fifth Sosa exception does not apply to Kwon and
Fernandez.
Further, as in the 5/1/15 Order, this Court finds
that, even construing the record in the light most favorable to
Plaintiffs, there is no evidence that the City is a principal or
agent of Kwon or Fernandez or that they are substantially
identical.
[5/1/15 Order at 31-32 (citing Kosegarten v. Dep’t of
the Prosecuting Attorney, 907 F. Supp. 2d 1143, 1161 (D. Hawai`i
2012)).]
This Court therefore finds that the third Sosa
exception does not apply to Kwon and Fernandez.
As to the first, second, and fourth exceptions, this
Court has ruled that the fact that Plaintiffs’ Charges were not
directed to an individual Defendant is not “dispositive because
the form does not direct the charging party to identify employees
who allegedly participated in the discrimination.”
[Id. at 32
(emphasis in original).]
However, this Court’s analysis of Plaintiffs’ § 3782(3) claims against Tanaka and Kashimoto differs because
Plaintiffs’ Charges expressly identify Kwon and Fernandez as
10
(...continued)
130 Hawai`i at 329, 310 P.3d at 1030.
30
perpetrators of the alleged discrimination and retaliation.
-Dowkin’s November 10, 2008 Charge, which alleges race
discrimination and retaliation, states that Kwon “made a
racial comment about” him. [C. Tanaka § 378-2(3) Aff., Exh.
A at 1.]
-Dowkin’s December 2, 2008 Charge, which alleges retaliation,
states that, since filing the November 10, 2008 Charge, he
was subjected to retaliation, including an incident on
November 13, 2008 when Kwon “appeared ‘accusatory’ and
‘angry’” at Dowkin for arriving to work late, even though
Dowkin “previously inform[ed] dispatch that [he] had to stop
and assist a motorist on [his] way to work.” [Id., Exh. B
at 1.] The charge also states that, on November 21, 2008,
Kwon informed Dowkin that Dowkin was being investigated for
turning his time cards in late during the month of October.
Dowkin told Kwon that others had done the same thing without
being subjected to an investigation. [Id. at 2.] Dowkin’s
Amended Charge dated May 5, 2009 contains the same
allegations. [C. Tanaka § 378-2(3) Aff., Exh. B1.]
-Delgadillo’s November 10, 2008 Charge, which alleges race
discrimination and retaliation, states his “supervisors and
fellow officers routinely make derogatory racist and ethnic
comments to” him, and his “fellow officers refused to cover
[him] on dangerous traffic stops which involve arrests.”
[Id., Exh. D at 1.] This charge does not identify specific
persons who were involved in those incidents.
-Delgadillo’s May 14, 2009 Amended Charge, which alleges
retaliation, identifies Fernandez as “one of the alleged
harassers in the racial discrimination case.” [Id., Exh. E1
at 1.]
-Bennett Huihui’s April 28, 2009 Charge, which alleges gender
discrimination and retaliation, states that, on February 20,
2009, she filed a complaint against Fernandez, and others,
stating that she was being retaliated against for giving
testimony regarding Dowkin’s race discrimination complaint.
The alleged retaliation included being removed from the list
of attendees for a recertification class after Fernandez saw
her speaking to Dowkin on February 10, 2009. [Id., Exh. G
at 1.] The charge also alleges that Fernandez gave her
unjustified low scores on her performance evaluation on
April 20, 2009. [Id. at 2.]
31
This Court therefore finds that the first Sosa exception applies
to Kwon and Fernandez.
Even though some of the factual
allegations against Kwon and Fernandez in the Third Amended
Complaint are not included in Plaintiffs’ Charges, this Court
finds that the additional allegations are reasonably related to
the allegations in the charges because the additional allegations
“are consistent with [Plaintiffs’] original theor[ies] of the
case.”
See French v. Haw. Pizza Hut, Inc., 105 Hawai`i 462, 476,
99 P.3d 1046, 1066 (2004) (quoting B.K.B. v. Maui Police Dep’t,
276 F.3d 1091, 1100 (9th Cir. 2002)).
In addition, this Court has found that: “To the extent
that Plaintiffs’ Charges clearly alleged that specific
individuals were involved in the discrimination and retaliation
alleged in Plaintiffs’ Charges, the [Hawai`i Civil Rights
Commission (“HCRC”)] anticipated and/or inferred that Plaintiffs
were bringing state law claims against those individuals pursuant
to § 378-2(3).”
[5/1/15 Order at 34-35.]
Thus, this Court finds
that the HCRC anticipated and/or inferred that Plaintiffs were
bringing § 378-2(3) claims against Kwon and Fernandez, and
therefore the second and fourth Sosa exceptions apply to Kwon and
Fernandez.
This Court CONCLUDES that Plaintiffs’ Charges
exhausted Plaintiffs’ administrative remedies as to their § 3782(3) claims against Kwon and Fernandez.
32
B.
Evidence of Aiding, Abetting, Inciting,
Compelling, or Coercing Discrimination
Kwon and Fernandez also argue that they are entitled to
summary judgment as to Plaintiffs’ § 378-2(3) claims because
Plaintiffs have not presented any admissible evidence that Kwon
and Fernandez “aided, abetted, incited, compelled, or coerced the
doing of any alleged discriminatory practice of the City.”
[Mem.
in Supp. of Kwon & Fernandez § 378-2(3) Motion at 14.]
Kwon and Fernandez emphasize that all of the counts in
the Third Amended Complaint alleging that they “conspired or
acted in concert with each other to discriminate or retaliate
against Plaintiffs” have been dismissed.11
[Id.]
Kwon and
Fernandez cite no authority, nor is this Court aware of any
authority, supporting their position that, if a plaintiff’s
conspiracy claims fail, any § 378-2(3) claim must also fail.
Kwon and Fernandez are correct that a § 378-2(3) claim
requires that there “be at least two persons (someone who
incites, compels, or coerces, and some other person who is
incited, compelled, or coerced).”
See Maizner v. Haw., Dep’t of
Educ., 405 F. Supp. 2d 1225, 1239 (D. Hawai`i 2005).
11
Plaintiffs
Chief United States District Judge Susan Oki Mollway, who
previously presided over this case, dismissed Count VII,
conspiracy to interfere with civil rights, in violation of 42
U.S.C. § 1985, and Count VIII, civil conspiracy. See Order
Granting Defendants’ Motion for Partial Dismissal of Third
Amended Complaint, filed 7/23/12 (dkt. no. 382), at 12-21,
available at 2012 WL 3012643.
33
have presented sufficient evidence that Kwon and Fernandez each
acted with at least one other person to commit acts of
discrimination and/or retaliation.
As noted previously, Plaintiffs have presented
testimony that Fernandez ordered officers not to help the DUI
team, [Pltfs.’ Dowkin Depo. at 63-64,] and Kashimoto ensured that
the order was carried out [Dowkin Aff. at ¶ 33].
Bennett Huihui
has stated that “[l]ate in 2008, when Sergeant Fernandez and
Officer Kashimoto gave their ‘no cover’ order,” she “was left
alone with felony suspects or traffic stops, in the dark, on the
most uninhabited beat in the district.”
[Pltfs.’ Separate
Concise Statement of Facts in Supp. of Pltfs.’ Mem. in Opp. to
Sergeant Wayne Fernandez’s Motion for Partial Summary Judgment
Against Cassandra Bennett Huihui on the Fifth Cause of Action in
the Third Amended Complaint (Intentional Infliction of Emotional
Distress), filed 5/4/15 (dkt. no. 618), Aff. of Cassandra Bennett
Huihui at ¶ 4.h.]
Plaintiffs have also presented testimony that
Delgadillo believed that Fernandez’s poor evaluation of
Delgadillo’s performance at the end of 2007 was racially
motivated, and he brought that concern to Kwon and Axt.
Delgadillo Depo. at 83-85, 88-91.]
[Pltfs.’
Delgadillo testified that
they pressured him not to pursue the complaint and told him:
“Don’t start a war with Fernandez, just let it go.”
[Id. at 90.]
This Court FINDS that this evidence, and other similar evidence
34
in the current record, are sufficient to raise a genuine issue of
material fact as to Plaintiffs’ § 378-2(3) claims against Kwon
and Fernandez.
This Court therefore CONCLUDES that Kwon and
Fernandez are not entitled to summary judgment as to Plaintiffs’
§ 378-2(3) claims against them, and DENIES the Kwon & Fernandez
§ 378-2(3) Motion
V.
.
Kwon & Fernandez Punitive Damages Motion
Based on this Court’s prior orders and its ruling on
the Kwon & Fernandez § 378-2(3) Motion, Count III is the only
remaining claim against Kwon and Fernandez.
This Court finds
that there are genuine issues of material fact as to whether Kwon
and Fernandez were involved the alleged practice of denying backup cover to Plaintiffs for discriminatory and/or retaliatory
reasons.
This Court also finds that, if Plaintiffs prove these
allegations, a reasonable jury could find that the evidence also
supports an award of punitive damages.
This Court therefore FINDS that there are genuine
issues of material fact which preclude summary judgment as to
Plaintiffs’ request for punitive damages against Kwon and
Fernandez, and this Court DENIES the Kwon & Fernandez Punitive
Damages Motion.
35
CONCLUSION
On the basis of the foregoing, this Court rules as
follows:
-Axt’s Motion for Partial Summary Judgment Against Plaintiff
Sergeant Shermon Dean Dowkin on the Fifth Cause of Action of
the Third Amended Complaint (Intentional Infliction of
Emotional Distress), filed April 15, 2015, and the City’s
joinder thereto, filed April 21, 2015, are HEREBY GRANTED;
-Tanaka and Kashimoto’s Motion for Summary Judgment Regarding
Punitive Damages and Any Other Outstanding Claims, filed
April 15, 2015, and the City’s joinder thereto, filed
April 21, 2015, are HEREBY GRANTED IN PART AND DENIED IN
PART;
-Kwon and Fernandez’s Motion for Partial Summary Judgment Against
All Plaintiffs on the Third Cause of Action in the Third
Amended Complaint (Violations of the Hawaii Civil Rights Law
- HRS Section 378-2(3)), filed April 15, 2015, and the
City’s joinder thereto, filed April 21, 2015, are HEREBY
DENIED; and
-Kwon and Fernandez’s Motion for Summary Judgment as to Punitive
Damages, filed April 15, 2015, and the City’s joinder
thereto, filed April 21, 2015, are HEREBY DENIED.
In particular, the Tanaka & Kashimoto Punitive Damages Motion is
GRANTED as to: Dowkin’s request for punitive damages against
Tanaka; Delgadillo’s request for punitive damages against Tanaka
and Kashimoto; and Bennett Huihui’s request for punitive damages
against Kashimoto.
The motion is DENIED as to: Bennett Huihui’s
request for punitive damages against Tanaka; and Dowkin’s request
for punitive damages against Kashimoto.
In addition, this Court sua sponte reconsiders the
portion of its May 1, 2015 order addressing four previous defense
motions for summary judgment, [dkt. no. 615,] that denied
36
Tanaka’s motion for summary judgment as to the portion of Count V
alleging an intentional infliction of emotional distress claim by
Dowkin against Tanaka based on the alleged denial of back-up
cover on April 6, 2008.
This Court HEREBY GRANTS summary
judgment in favor of Tanaka as to that portion of Count V.
Lastly, the Court summarizes the remaining claims in
this matter:
-Count I, race and gender discrimination, in violation of Title
VII of the Civil Rights Act of 1964, as amended by the Civil
Rights Act of 1991, 42 U.S.C. § 2000e-2, et seq., by all
Plaintiffs against the City;
-Count II, race discrimination, in violation of Title VI of the
Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., by
Dowkin and Delgadillo against the City;
-Count III, violations of Haw. Rev. Stat. § 378-2(1) and (2) by
all Plaintiffs against the City, and violations of § 3782(3) by all Plaintiffs against Fernandez and Kwon; and
-Count V, intentional infliction of emotional distress by Dowkin
against Kashimoto as to the October 11, 2010 incident, and
by Bennett Huihui against Tanaka as to the October 18, 2010
Porky’s Incident.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, July 24, 2015.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
SERGEANT SHERMON DEAN DOWKIN, ET AL. VS. THE CITY AND COUNTY OF
HONOLULU, ET AL; CIVIL 10-00087 LEK-RLP; ORDER REGARDING
DEFENDANTS’ MOTIONS FOR SUMMARY JUDGMENT AND JOINDERS THERETO
37
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?