Kosegarten v. The Department of the Prosecuting Attorney, County of Maui et al
Filing
172
ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF QUALIFIED IMMUNITY FOR INDIVIDUAL DEFENDANTS 74 AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON TIME-BARRED CLAIMS 78 . Sig ned by JUDGE LESLIE E. KOBAYASHI on 8/31/2012. ~ Order follows hearing held 8/8/2012. Minutes: doc no. 164 ~ (afc) 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). All participants are registered to receive electronic notifications.
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
MARIE J. KOSEGARTEN,
)
)
Plaintiff,
)
)
vs.
)
)
THE DEPARTMENT OF THE
)
PROSECUTING ATTORNEY, ET AL., )
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00321 LEK-KSC
ORDER DENYING DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT
ON THE ISSUE OF QUALIFIED IMMUNITY FOR INDIVIDUAL DEFENDANTS
AND GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT ON TIME-BARRED CLAIMS
On January 11, 2012, Defendants the County of Maui
(“the County”), Benjamin M. Acob, in his individual capacity
(“Defendant Acob”), and Timothy T. Tate, in his individual
capacity (“Defendant Tate”, all collectively, “Defendants”) filed
their Motion for Partial Summary Judgment on the Issue of
Qualified Immunity for Individual Defendants (“Immunity Motion”)
and, on January 13, 2012, Defendants filed their Motion for
Summary Judgment on Time-Barred Claims (“Time-Bar Motion”).
[Dkt. nos. 74, 78.]
Plaintiff Marie J. Kosegarten (“Plaintiff”)
filed her memorandum in opposition to the Immunity Motion
(“Immunity Opposition”) and her memorandum in opposition to the
Time-Bar Motion (“Time-Bar Opposition”) on April 9, 2012, and her
supplemental memorandum in opposition to the Immunity Motion
(“Supplemental Immunity Opposition”) on July 18, 2012.
[Dkt.
nos. 119, 117, 149.]
Defendants filed their reply regarding the
Immunity Motion (“Immunity Reply”) on July 25, 2012, and their
reply regarding their Time-Bar Motion (“Time-Bar Reply”) on
April 16, 2012.
[Dkt. nos. 154, 126.]
These matters came on for hearing on August 8, 2012.
Appearing on behalf of Defendants were Cheryl Tipton, Esq., and
Thomas Kolbe, Esq., and appearing on behalf of Plaintiff were
Michael Green, Esq., Richard Gronna, Esq., and Denise Hevicon,
Esq.
After careful consideration of the motions, supporting and
opposing memoranda, and the arguments of counsel, Defendants’
Immunity Motion is HEREBY DENIED and Defendants’ Time-Bar Motion
is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set
forth below.
BACKGROUND
Plaintiff filed the instant employment discrimination
and retaliation action on June 4, 2010.
Plaintiff filed her
Second Amended Complaint on December 21, 2011.
[Dkt. no. 62.]
At all relevant times, Defendant Acob was the County’s Chief
Prosecuting Attorney, and Defendant Tate was a County deputy
prosecuting attorney (“DPA”).
8.]
[Second Amended Complaint at ¶¶ 7-
Plaintiff was also employed by the County as a DPA until her
termination.
[Id. at ¶¶ 14, 88.]
The core factual allegations that Plaintiff bases the
Second Amended Complaint upon are the same as the factual
2
allegations in the First Amended Complaint, which are summarized
in this Court’s November 29, 2011 Order Granting in Part and
Denying in Part as Moot Defendants’ Motion for Judgment on the
Pleadings on Certain Claims, and Granting Plaintiff’s Request for
Leave to File a Second Amended Complaint (“11/29/11 Order”).
[Dkt. no. 58.1]
This Court incorporates the 11/29/11 Order’s
summary of the factual allegations in the First Amended
Complaint.
The Second Amended Complaint alleges the following
claims: a discrimination/wrongful termination claim under Title
VII of the Civil Rights Act of 1964 (“Title VII”) against the
County (“Count I”); a sexual harassment/hostile work environment
claim against the County (“Count II”); a retaliation claim
against the County (“Count III”); a discriminatory practices
claim against Defendants pursuant to Haw. Rev. Stat. Chapter 378
(“Count IV”); a Whistleblowers’ Protection Act claim against the
County pursuant to Haw. Rev. Stat. § 378-61, et seq. (“Count V”);
and a defamation claim against Defendant Tate (“Count VI”).
On January 4, 2012, Defendants filed a Motion to Strike
and/or to Dismiss Portions of Plaintiff’s Second Amended
Complaint.
[Dkt. no. 63.]
This Court granted the motion in
part, but only insofar as the Court struck the portions of the
Second Amended Complaint alleging that Defendant Acob attended an
1
The 11/29/11 Order is also available at 2011 WL 6002870.
3
August 27, 2008 meeting during which Plaintiff was informed that
the County would be investigating her for a management violation.
This Court denied the motion in all other respects.
[Order
Granting in Part & Denying in Part Defs.’ Motion to Strike and/or
to Dismiss Portions of Pltf.’s Second Amended Complaint, filed
4/5/12 (dkt. no. 115) (“4/5/12 Order”).2]
I.
Immunity Motion
In the Immunity Motion, Defendants first emphasize that
the only remaining claim against Defendant Acob is the portion of
Count IV alleging that he and Defendant Tate aided and abetted
the commission of a discriminatory act prohibited by Chapter 378.
Defendants argue that, in order to state an aiding and abetting
claim pursuant to Haw. Rev. Stat. § 378-2(3), a plaintiff must
identify at least two persons, one who incites, compels, or
coerces the discriminatory act, and another who is incited,
compelled or coerced to commit the act.
[Id. at 9-10.]
Defendants emphasize that the County is not considered a person
for purposes of this analysis.
Defendants note that, pursuant to § 8-3.3.1 of the
Charter of the County of Maui (“County Charter”),3 the
2
The 4/5/12 Order is also available at 2012 WL 1158742.
3
The relevant excerpt of the County Charter is attached to
Defendants’ Concise Statement of Material Facts in Support of the
Immunity Motion (“Defendants’ Immunity CSOF”) as Exhibit A to the
Declaration of Cheryl Tipton (“Tipton Immunity Declaration”).
4
prosecuting attorney appoints the DPAs, who serve at the pleasure
of the prosecuting attorney.
Thus, Defendants assert that only
Defendant Acob had the authority to appoint and retain Plaintiff.
[Id. at 10-11.]
In addition, Defendants argue that, under Hawai`i law,
Plaintiff must prove by clear and convincing evidence that the
official’s conduct was motivated by malice and not by a proper
purpose.
[Id. at 11.]
Defendants argue that Plaintiff’s Second
Amended Complaint does not allege malice, and Defendants point
out that Defendant Acob consulted with Corporation Counsel before
he took some of the actions referenced in the Second Amended
Complaint.
Defendants assert that these consultations disprove
any allegation of malice and actually establish that Defendant
Acob was trying to follow the law.
Decl. at ¶ 8).]
[Id. (citing Tipton Immunity
Further, Defendants argue that Plaintiff has not
presented any evidence, let alone clear and convincing evidence,
that Defendants Acob and Tate acted with malice.
[Id. at 18.]
Defendants argue that Defendant Acob is entitled to
qualified immunity because he could not have reasonably
anticipated that 1) raising his voice at Plaintiff,
2) authorizing an equal employment opportunity investigation of a
discrimination complaint against Plaintiff, or 3) terminating
Plaintiff for insubordination constituted discrimination.
Defendants also argue that this Court cannot consider the
5
allegations that Plaintiff raised in the federal claims asserted
in prior versions of the complaint because the Second Amended
Complaint does not assert any federal claims against Defendant
Acob or Defendant Tate.
[Id. at 12-13.]
Defendants also argue that Defendant Tate is entitled
to qualified immunity from the two state law claims remaining
against him.
Similar to the arguments that Defendants raise as
to Defendant Acob, Defendants argue that Defendant Tate is
entitled to qualified immunity as to Plaintiff’s aiding and
abetting claim because Plaintiff does not allege that Defendant
Tate aided and abetted Defendant Acob and because Plaintiff does
not allege that Defendant Tate acted with malice.
[Id. at 14.]
Specifically as to Defendant Tate’s narcotics class that
Plaintiff alleges she was required to take, Plaintiff has
admitted that Defendant Tate did not engage in any
discriminatory, harassing, or hostile behavior during the class.
[Id. at 14 n.5 (citing Tipton Immunity Decl., Exh. C).4]
Defendants also argue that Plaintiff has not alleged
malice to support her defamation claim against Defendant Tate.
First, Defendants note that the two allegations of defamation
4
Exhibit C is a one page document that appears to part of a
deposition transcript, but Exhibit C does not include either the
cover page of the transcript or the court reporter’s
certification. This presentation appears to be common in
Defendants’ exhibits. The Court, however, notes that Plaintiff
has not challenged the authenticity of Defendants’ deposition
transcript exhibits.
6
that allegedly occurred prior to June 4, 2008 are barred by the
two-year statute of limitations.5
Further, Defendant Tate’s
report to Defendant Acob in August 2008 that Plaintiff may be
discriminating against Jacki Jura and Yukari Murakami cannot be
defamation because DPA Tracy Jones signed a statement that
Plaintiff referred to Jura and Murakami as idiots and morons.
Defendants argue that Defendant Tate reported the incident to
Defendant Acob in connection with the Equal Employment
Opportunity Commission (“EEOC”) complaints that Ms. Jura and
Ms. Murakami filed.
[Id. at 15-17; Defs.’ Immunity CSOF at ¶ 15;
Tipton Immunity Decl., Exh. G.6]
Defendants argue that Defendant
Tate cannot be held liable for defamation because he was acting
reasonably in the discharge of his public duties and because the
statements were about a matter that he and the recipient had a
reasonable interest or duty in.
Defendants emphasize that
Defendant Tate’s statements were not made public, and the
statements that Plaintiff made about Ms. Jura and Ms. Murakami
were subject to an investigation.7
Further, Defendants argue
5
In the Time-Bar Motion, Defendants seek dismissal of the
portion of Count VI (defamation) based on these statements.
6
Exhibit G is dated August 21, 2008. It is apparently
Wayne Steel’s transcription of statements that Tracy Jones made
to him. Ms. Jones signed the document, stating that it was an
accurate accounts of the statements she made to him. There is no
declaration authenticating this exhibit.
7
In a memorandum to Plaintiff dated September 17, 2008,
(continued...)
7
that the issue whether the communication was privileged is an
issue of law appropriate for summary judgment.
[Mem. in Supp. of
Immunity Motion at 17-18.]
A.
Plaintiff’s Memorandum in Opposition
In Plaintiff’s Immunity Opposition, Plaintiff notes
that, since the filing of the Immunity Motion, this Court has
already resolved some of the issues Defendants raised in that
motion.
Thus, the only remaining issue is whether Defendants
Acob and Tate are entitled to qualified immunity on the Haw. Rev.
Stat. § 378-2(3) aiding and abetting claim and whether Defendant
Tate is entitled to qualified immunity on the defamation claim.
Plaintiff argues that summary judgment on the issue of qualified
immunity is not appropriate at this time.
She asserts that she
cannot fairly oppose the Immunity Motion because she has not had
the opportunity to conduct discovery about Defendants Acob and
Tate.
[Immunity Opp. at 1.]
The majority of the arguments in the Immunity
Opposition address discovery related to the qualified immunity
issue.
These arguments are moot insofar as this Court continued
the original April 2012 date for the hearing on the Immunity
Motion after the magistrate judge’s discovery ruling and
7
(...continued)
Defendant Acob stated that the information gathered during the
investigation did not establish that Plaintiff violated the
County’s anti-discrimination policy. [Tipton Immunity Decl.,
Exh. I.]
8
Plaintiff filed a supplemental opposition to the Immunity Motion
incorporating discovery conducted pursuant to the magistrate
judge’s ruling.
Plaintiff also argues that she was not required to
plead malice in the Second Amended Complaint to prevent a summary
judgment ruling on qualified immunity.
She argues that such a
requirement is unreasonable and is inconsistent with Hawai`i
state law because, at the time a plaintiff files a complaint, she
does not know whether the defendant is going to assert a
qualified immunity defense.
B.
[Id. at 12-13.]
Plaintiff’s Supplemental Opposition
In her Supplemental Immunity Opposition, Plaintiff
emphasizes that Hawai`i case law requires courts to utilize a
reasonable person standard in determining whether malice exists
to extinguish a claim of qualified privilege.
Further, whether
malice exists is generally a question of fact for the jury.
[Suppl. Immunity Opp. at 4.]
At her deposition, Plaintiff
testified that, in September 2007, Defendant Tate told her:
“‘You’ve got to start doing more for Jacki.
promote Jacki.
You have got to
You need to do favors for her.’”
[Pltf.’s Suppl.
Concise Statement of Material Facts in Opp. to Immunity Motion
(“Pltf.’s Suppl. Immunity CSOF”), filed 7/18/12 (dkt. no. 150),
Decl. of Counsel, Exh. 2 (Excerpts of 6/22/11 Pltf. Depo. Trans.)
(“Pltf. Depo.”) at 59.]
Plaintiff responded that his request was
9
improper and that he should not ask such things.
[Id. at 60.]
Plaintiff testified that Defendant Tate later made an almost
identical request about Ms. Murakami.
[Id. at 76.]
At his
deposition, Defendant Tate denied having a romantic relationship
with Ms. Jura, but he admitted to having a social relationship
with her and to going to her home five or six times.
Defendant
Tate also testified that Ms. Murakami became his girlfriend in
September 2007.
[Pltf.’s Suppl. Immunity CSOF, Decl. of Counsel,
Exh. 7 (Excerpts of 7/2/12 Def. Tate Depo. Trans.) (“Tate Depo.”)
at 24-25, 28, 38.]
Plaintiff testified that she did not think it
was appropriate for Defendant Tate to ask her to do favors for
new DPAs with whom he had personal relationships, and she
reported his requests to the department’s managers.
[Pltf.’s
Depo. at 77-78.]
Defendant Acob acknowledged that Plaintiff reported to
him that Defendant Tate came to her and wanted her to promote his
girlfriends.
Plaintiff also told Defendant Acob that Defendant
Tate’s girlfriends were incompetent, which Defendant understood
to refer to their abilities in the courtroom.
[Pltf.’s Suppl.
Immunity CSOF, Decl. of Counsel, Exh. 6 (Excerpts of 6/29/12 Def.
Acob Depo. Trans. Vol. II) (“Acob Depo. II”) at 77-78.]
Defendant Acob acknowledged that it was improper for Defendant
Tate to ask the supervisor of a DPA whom he was dating to promote
the DPA.
Defendant Acob orally reprimanded Defendant Tate for
10
doing so.
again’”.
In other words, he told Defendant Tate: “‘Don’t do it
[Id. at 83.]
According to Defendant Tate, his supervisor noticed
that Plaintiff and Defendant Tate had stopped socializing, so
Defendant Tate “gave him some background on what had happened.”
[Tate Depo. at 66.]
Defendant Tate had concerns that Plaintiff
was trying to have Ms. Murakami fired, and he reported these
concerns to his supervisor.
He also testified that, in mid-
October 2007, Ms. Jura told him that she had heard he was dating
someone in the office, and she warned him that, if he was dating
someone in the office, Plaintiff would have that person fired.
According to Defendant Tate, Ms. Jura said this because, about
six weeks prior, Plaintiff had tried to get Ms. Jura fired
because Plaintiff believed Defendant Tate was spending time with
Ms. Jura and helping her.
Defendant Tate believed that Plaintiff
was jealous of him and the women he was dating.
[Id. at 66-68.]
Defendant Tate testified that he did not believe Plaintiff
thought that he and Plaintiff “could be together in that way,
because she knew [he] didn’t like her that way.”
[Id. at 68.]
Plaintiff alleges that the department, with Defendant Acob’s
approval, launched an investigation into Defendant Tate’s
allegations that Plaintiff discriminated against Ms. Jura and
Ms. Murakami.
Plaintiff emphasizes that, although Defendant Acob
acknowledged that Defendant Tate’s actions were improper,
11
Defendant Tate essentially received no disciplinary action.
[Suppl. Immunity Opp. at 7.]
Plaintiff argues that Defendant Acob terminated
Plaintiff because she authorized Cynthia Sims to take Fridays off
to attend medical appointments and because of the 2007
occurrences involving Defendant Tate, Ms. Jura, and Ms. Murakami.
[Id.]
According to Defendant Acob, he terminated Plaintiff for
insubordination because Plaintiff failed to discipline Ms. Sims
for Ms. Sims’s routine Friday absences.
In his termination
letter to Plaintiff, Defendant Acob stated that Plaintiff
unilaterally reversed the corrective action he placed on
Ms. Sims.
During his deposition, however, Defendant Tate
admitted that he never sanctioned Ms. Sims, but merely told her
to improve her work attendance.
Thus, Plaintiff argues that the
stated reason for Plaintiff’s termination was a pretext.
[Id. at
7-9.]
Plaintiff also points out that, at Defendant Acob’s
direction, she investigated Ms. Sims’s May 15, 2009 absence from
work.
Plaintiff determined that Ms. Sims was absent that day for
a justifiable, medical reason.
As to Ms. Sims’s regular Friday
absences, Plaintiff found that, except for May 15, 2009, Ms. Sims
always submitted a note from her doctor on Oahu for her
anticipated absences.
Further, Ms. Sims was not scheduled for
court on Fridays, and Friday appointments allowed her to save
12
time and money because Ms. Sims resided on Oahu and flew back
every weekend.
Plaintiff followed Defendant Acob’s decision that
Ms. Sims’s May 15, 2009 absence was leave without pay and docked
Ms. Sims’s pay accordingly.
Thus, Plaintiff did what Defendant
Acob directed her to do, even though Plaintiff believed that his
decision violated the department policy that a doctor’s note was
only required for absences of four days or more.
[Id. at 9-10
(citing Acob Depo. II at 113-17; Pltf. Depo. at 161-66).]
Plaintiff argues that, insofar as she was not insubordinate in
the Sims matter, Defendant Acob’s termination of Plaintiff must
have stemmed from the 2007 incidents and Defendant Tate’s
allegations against her.
Plaintiff argues that she has raised a
genuine issue of fact as to whether Defendant Acob’s conduct
establishes malice.
[Id. at 11.]
In addition, Defendant Acob admitted during his
deposition that he was aware that the County’s antidiscrimination policy requires that supervisors take immediate
action to separate employees when there is a complaint of
discrimination.
Defendant Acob, however, took no steps to
separate Plaintiff and Defendant Tate after Plaintiff filed a
discrimination complaint against Defendant Tate; Defendant Acob
merely told her to “get over it”.
53-54.]
[Acob Depo. II at 34, 42-43,
Defendant Acob still forced Plaintiff to attend a
training session taught by Defendant Tate in March 2009.
13
[Pltf.
Depo. at 124-26.]
Plaintiff argues that there is a genuine issue
of fact as to whether Defendant Acob acted without a proper
purpose, and Plaintiff urges the Court to find that he is not
entitled to qualified immunity.
[Suppl. Immunity Opp. at 11-12.]
Plaintiff also argues that Defendant Tate is not
entitled to qualified immunity.
First, it is undisputed that
Defendant Tate referred to Plaintiff as a “butch”.
Plaintiff
argues that Defendant Tate was aware that Plaintiff was not a
lesbian.
In fact, Defendant Tate believed that Plaintiff was
interested in him romantically.
Although Defendant Tate tried to
claim that the comment was a joke, Plaintiff was offended and did
not consider it a joke.
[Id. at 13 (citing Tate Depo. at 17-19,
23, 25, 27-28, 32-33; Pltf. Depo. at 67-69).]
Plaintiff also argues that, during his deposition,
Defendant Tate admitted that he had asked Plaintiff for favors
for Ms. Jura.
Defendant Acob admitted this was inappropriate.
[Id. (citing Tate Depo. at 35; Acob Depo. II at 83).]
Plaintiff
also points out that Defendant Tate independently accessed the
EEOC investigation report about his complaint because the report
was on a shared office computer drive.
The report, which was
later officially delivered to Defendant Tate, stated, inter alia,
that Defendant Tate should be cautioned about romantic
relationships in the office and that he should be aware of the
seriousness of the allegations he raised, particularly when he
14
had no personal knowledge about the subject of the allegations.
Plaintiff therefore argues that Defendant Tate’s actions had no
legitimate purpose and went outside lawful boundaries.
[Id. at
14-15 (citing Tate Depo. at 36-38, 72).]
Plaintiff urges the Court to deny the Immunity Motion.
C.
Defendants’ Reply
In the Immunity Reply, Defendants argue that the
actions Plaintiff identified in her oppositions do not show
either that Defendants Acob and Tate acted with malice or that
they lacked an otherwise proper purpose.
3.]
[Immunity Reply at 2-
Defendants emphasize that the reasonable person test for
qualified immunity only applies to defamation claims; in all
other cases an actual malice test applies.
[Id. at 5.]
Defendants argue that Plaintiff has not identified any evidence
that Defendants Acob and Tate acted together with malice or
improper purpose.
Defendants also argue that the deposition
pages Plaintiff cites for the proposition that Defendant Acob
terminated her for the events in 2007 do not support that
position.
In fact, Defendant Acob testified that Plaintiff’s
termination had nothing to do with the 2007 events.
Defendant
Acob also testified that Plaintiff was not a good supervisor, in
part because of the Sims matter.
Although Plaintiff informed
Ms. Sims about all of the issues Defendant Acob identified,
Plaintiff also told Ms. Sims in writing that Plaintiff did not
15
feel management should restrict leave to certain days of the week
for certain employees.
Defendants argue that this undermined
Defendant Acob’s instructions and constituted insubordination,
justifying Plaintiff’s termination.
[Id. at 6-7 (some citations
omitted) (citing Acob Depo. II at 74, 131-32, 155; Report of
Conference of Plaintiff counseling Sims; Letter of termination
dated June 23, 2009).8]
Defendants point out that, on
August 27, 2009, Ms. Sims was terminated for failing to do her
work and for insubordination.
[Defs.’ Suppl. Exhibits to
Immunity Reply, filed 7/30/12 (dkt. no. 159), Decl. of Benjamin
M. Acob, Exh. K (letter dated 8/27/09 to Ms. Sims from Defendant
Acob terminating her employment).]
As to Plaintiff’s allegation
that Defendant Acob failed to separate Plaintiff from Defendant
Tate, Defendants argue that separation was not necessary because
they worked in different parts of the building.
Further,
Plaintiff was on sick leave for knee surgery from November 28,
2007 to December 31, 2007.
[Immunity Reply at 9 (citing Defs.’
Suppl. Exhibits to Immunity Reply, Decl. of Cheryl Tipton
(“Suppl. Tipton Immunity Decl.”) at ¶ 4, Exh. M9 at 43).]
The
8
The Report of Conference and the Letter of termination
were exhibits to Defendants’ Concise Statement of Material Facts
in Support of Their Motion for Summary Judgment, filed September
26, 2011 (“Defs.’ 9/26/11 CSOF”). [Dkt. no. 48.] The Report of
Conference was Exhibit U, and the Letter of termination was
Exhibit W. [Dkt. nos. 48-42, 48-44.]
9
Exhibit M is a six-page excerpt of the transcript of
(continued...)
16
department completed its internal investigation in December 2007
and found that neither Defendant Tate’s allegations about
Plaintiff nor Plaintiff’s allegations about Defendant Tate rose
to the level of a violation of the County’s anti-discrimination
policy.
Defendants argue that, once the investigation was
complete, there was no obligation to separate Plaintiff and
Defendant Tate.
[Id. (some citations omitted) (citing Tipton
Time-Bar Decl., Exh. B-1 at 3).]
Defendant Tate’s training
class, which Plaintiff claims she was forced to attend, did not
occur until approximately sixteen months after the investigation
was complete.
Defendant Acob testified that he did not
specifically order Plaintiff to attend the training.
He merely
advised her that she should attend because there could be
information at the training that was not included in the written
materials.
[Id. at 9-10 (citing Suppl. Tipton Immunity Decl. at
¶ 3, Exh. L10 at 50).]
As to Defendant Tate, Defendants argue that Plaintiff
has not established malice because Defendant Tate had reasonable
concerns that Plaintiff might discriminate against Ms. Murakami
because Plaintiff was jealous.
Defendants point out that
Robert Rivera and Melinda Mendes also testified at their
9
(...continued)
Defendant Acob’s June 29, 2012 deposition.
10
Exhibit L is a one-page excerpt of the transcript of
Defendant Acob’s January 20, 2012 deposition.
17
depositions that they suspected that Plaintiff was jealous.11
Defendants reiterate that Defendant Tate’s report that Plaintiff
discriminated against Ms. Jura and Ms. Murakami by calling them
idiots and morons was not improper.
They emphasize that both
Ms. Jura and Ms. Murakami filed EEOC charges, and Ms. Jura has a
pending action in this district court.
[Id. at 11-12.]
Defendant Tate denies asking Plaintiff to do favors for
either Ms. Jura or Ms. Murakami but, for purposes of the Immunity
Motion, Defendants argue that, assuming that Defendant Tate did
so, his actions were not malicious.
Defendant Tate was not
Plaintiff’s supervisor and he had no authority over her.
Thus,
he could not force her to take any actions in favor of Ms. Jura
or Ms. Murakami.
Defendants argue that, even if he did ask
Plaintiff for favors, this is not clear and convincing evidence
of malice.
[Id. at 12.]
As to his comment that Plaintiff was a
“butch”, Defendants state that Defendant Tate only said this to
Ms. Jura to dissuade Ms. Jura from trying to arrange a date
between Ms. Jura’s roommate and Plaintiff.
occurrence in June 2007.
This was a one-time
It did not seem to affect Plaintiff’s
11
The Court notes that Defendants rely on a transcript of
the deposition of Robert Rivera and a declaration by Melinda
Mendes that Defendants submitted with Defendants’ Concise
Statement of Facts in Support of Their Motion for Summary
Judgment on Aiding and Abetting Claims (“Aiding and Abetting
Motion”), filed July 6, 2012. [Dkt. no. 143.] In reviewing the
Immunity Motion and the Time-Bar Motion, the Court will not
consider the exhibits that Defendants filed in support of the
Aiding and Abetting Motion.
18
relationship with Defendant Tate at the time, and Defendant Tate
later explained to Ms. Jura that it was not true.
Defendants
argue that Plaintiff never complained about the comment until
Defendant Tate raised his concerns about Plaintiff.
13 (citing Tate Depo. at 25-29, 58, 60).]
[Id. at 12-
Defendant Tate admits
that he accessed a report about judges’ comments regarding how
the district court DPAs, including Ms. Jura and Ms. Murakami,
handled themselves in court.
Defendants, however, argue that
there is no evidence Defendant Tate used the report for an
improper purpose, and the mere fact that he accessed the report
is not clear and convincing evidence of malice.
[Id. at 13.]
As to the defamation claim, Defendants point out that,
in her memorandum in opposition to the Time-Bar Motion, Plaintiff
acknowledged that the portions of the claim based on Defendant
Tate’s report to Defendant Acob that Plaintiff may be
discriminating against Ms. Jura and Ms. Murakami and Defendant
Tate’s reference to Plaintiff as a lesbian and a butch are timebarred because Plaintiff did not bring the claims within two
years after Defendant Tate made the statements.
[Id. at 13-14.]
Defendants reiterate the argument from the Immunity Motion that
Defendant Tate’s report to Defendant Acob that Plaintiff called
Ms. Jura and Ms. Murakami idiots and morons had a proper purpose.
[Id. at 14-15.]
Defendants argue that the Court must dismiss
19
Plaintiff’s claims against Defendants Acob and Tate because
Plaintiff did not allege malice in the Second Amended Complaint.
Defendants emphasize that Plaintiff had notice from their answer
to the First Amended Complaint that Defendants Acob and Tate were
asserting a qualified immunity defense.
They also argue that the
Court should not allow Plaintiff to further amend her complaint
because she has already had a chance to amend her state law
claims against Defendants Acob and Tate.
[Id. at 4.]
Defendants therefore urge the Court to grant the
Immunity Motion.
II.
Time-Bar Motion
In the Time-Bar Motion, Defendants argue that the
portions of Plaintiff’s Title VII and Haw. Rev. Stat. Chapter 378
claims which are based on acts that occurred before December 20,
2007 are time-barred.
Plaintiff filed three complaints with the
EEOC, one dated October 15, 2008, one dated June 8, 2009, and one
dated July 9, 2009.
[Mem. in Supp. of Time-Bar Motion at 4-5.]
The October 15, 2008 charge alleges acts of discrimination
occurring as early as September 1, 2007.
[Defs.’ Concise
Statement of Material Facts in Supp. of Time-Bar Motion, filed
1/13/12 (dtk. no. 79) (“Defs.’ Time-Bar CSOF”), Decl. of
Cheryl Tipton (“Tipton Time-Bar Decl.”), Exh. B-1.]
Thus, only
acts occurring 300 days before October 15, 2008, i.e.,
December 20, 2007 or later, are timely.
20
The Second Amended
Complaint alleges the following acts occurring before
December 20, 2007: Plaintiff’s reassignment in early 2007;
Defendant Tate’s request in September 2007 that Plaintiff promote
Ms. Jura; Defendant Tate’s referring to Plaintiff in September
2007 as a “lesbian” and a “butch”; Defendant Tate’s request on
October 29, 2007 that Plaintiff promote Ms. Murakami; and
Defendant’s internal complaint that Plaintiff was discriminating
against Ms. Jura and Ms. Murakami because she was jealous of
them.
Defendants argue that all of Plaintiff’s employment
discrimination claims based on these allegations are time-barred.
[Mem. in Supp. of Time-Bar Motion at 5-11.]
Defendants also argue that Plaintiff’s claims for
violation of the Hawaii Whistleblowers’ Protection Act are barred
unless the violation within two years before Plaintiff filed her
complaint on June 4, 2010.
Plaintiff’s whistleblower claims
based on the five acts identified supra are therefore timebarred.
[Id. at 11.]
Defendants also argue that a two-year
statute of limitations applies to Plaintiff’s defamation claim
against Defendant Tate.
Plaintiff’s defamation claim is
therefore time-barred to the extent that it is based upon
Defendant Tate’s report to Defendant Acob on October 30, 2007
that Plaintiff might be discriminating against Ms. Jura and Ms.
Murakami or Defendant Tate’s September 2007 references to
Plaintiff as a “lesbian” and a “butch”.
21
[Id. at 12.]
Defendants therefore urge the Court to grant summary
judgment in favor of Defendants as to the time-barred claims
identified in this motion.
A.
Plaintiff’s Memorandum in Opposition
In the Time-Bar Opposition, Plaintiff acknowledges that
the Court should grant the Time-Bar Motion as to the portion of
the defamation claim based on statements that occurred prior to
June 4, 2008,12 but Plaintiff emphasizes that the facts
themselves are not subject to any statute of limitations.
[Time-
Bar Opp. at 4.]
Plaintiff notes that her EEOC charge dated October 15,
2008 refers to acts of discrimination occurring from September 1,
2007 to September 29, 2008, and the charge states that the
discrimination was a continuing action.
Plaintiff emphasizes
that courts must construe EEOC charges liberally.
Further, under
the doctrine of continuing violations, the Court can consider
discriminatory events beyond the limitations period if they were
part of a series of related acts against the plaintiff and some
of the acts extended into the limitations period.
[Id. at 6-7.]
Plaintiff argues that her three EEOC charges “contain the
12
The two allegedly defamatory statements which Plaintiff
concedes are time-barred are: Defendant Tate’s report on October
30, 2007 that Plaintiff may have been discriminating against Ms.
Jura and Ms. Murakami; and Defendant Tate’s referring to
Plaintiff as a lesbian, which occurred in September 2007. [TimeBar Opp. at 11-12.]
22
complete chronology of facts and allegations which commenced in
2007 and culminated in Plaintiff’s wrongful termination on
June 23, 2009.”
[Id. at 7-8.]
She argues that the acts were
related and subject to the EEOC investigation.
[Id. at 8.]
Plaintiff agrees with Defendants that one comment alone
does not create a hostile work environment.
Plaintiff, however,
argues that the comment can still be evidence of malice as well
as evidence of the disparate manner in which Defendant Acob
treated Plaintiff and Defendant Tate when each of them made
discrimination claims.
Plaintiff clarifies that she does not
assert Defendant Tate’s requests that she promote Ms. Jura and
Ms. Murakami were, in and of themselves, discrimination against
Plaintiff.
The discrimination against Plaintiff occurred after
she refused to promote them and she reported Defendant Tate’s
improper requests to the managers.
Plaintiff alleges that
Defendants Acob and Tate retaliated against her for making the
complaint.
Thus, Defendant Tate’s promotion requests are merely
background facts and are not time-barred in that context.
8-9.]
[Id.
Similarly, Plaintiff argues that the ultimate retaliation
that is the basis of her whistleblower’s claim is her
termination, which occurred within the statute of limitations
period.
[Id. at 9-11.]
Plaintiff therefore urges the Court to grant the Time-
Bar Motion as to only the two pre-June 4, 2008 defamatory
23
statements and to deny the Time-Bar Motion in all other respects.
[Id. at 12.]
B.
Defendants’ Reply
In the Time-Bar Reply, Defendants emphasize that they
do not seek summary judgment on Plaintiff’s claims based on her
termination.
[Time-Bar Reply at 2.]
Defendants argue that the continuing violation doctrine
does not apply.
Plaintiff’s timely allegations of discrimination
are unrelated to the other acts that occurred beyond the
limitations period.13
They do not involve the same types of
employment actions, and the allegedly discriminatory actions
occurred relatively infrequently.
[Id. at 8.]
Defendants
acknowledge that the time period for filing a discrimination
charge is subject to equitable doctrines, like tolling or
estoppel, but courts only apply these doctrines sparingly.
Defendants argue that equitable doctrines are inapplicable to
this case.
Plaintiff knew about Defendant Tate’s lesbian comment
in September 2007, and she had ample opportunities to make a
timely report about it if she found it offensive.
Further,
Plaintiff was aware that the County’s anti-discrimination policy
13
Defendants argue that the following alleged events
occurred within the limitations period: Plaintiff not being
selected for Manager of the Year in 2008; Plaintiff being
questioned about referring to Ms. Jura and Ms. Murakami as idiots
and morons; being forced to attend a mandatory training class
taught by Defendant Tate; and being called into meetings with
Defendant Acob. [Time-Bar Reply at 9.]
24
states that any employee who feels she has been harassed or
discriminated against should make a complaint to her supervisor
immediately.
The County’s anti-discrimination policy also
includes information about the time periods in which a claimant
must file a Hawai`i Civil Rights Commission (“HCRC”) or EEOC
claim.
Defendants argue that Plaintiff ignored these deadlines.
[Id. at 10-12 (citing County Policy Against Discrimination14 at
5, 8).]
Finally, Defendants state that there is no Hawai`i case
law directly on point as to the statute of limitations for § 3782 claims.
Defendants argue that, because the Hawai`i Supreme
Court generally looks to analogous federal laws for guidance,
this Court should also rule that the portions of Plaintiff’s
§ 378-2 claim based on the pre-June 2008 events are also
untimely.
[Id. at 12.]
Defendants therefore urge the Court to grant the Time-
Bar Motion.
DISCUSSION
I.
Time-Bar Motion
The Court first turns to Defendants’ Time-Bar Motion
because Defendants argue that the Court cannot consider the facts
supporting the time-barred claims in reviewing Plaintiff’s timely
14
The County Policy Against Discrimination was Exhibit K
with Defendants’ 9/26/11 CSOF. [Dkt. no. 48-29.]
25
claims.
A.
Defamation
Count VI’s defamation claim against Defendant Tate is
subject to a two-year statute of limitations.
See Bauernfiend v.
AOAO Kihei Beach Condos., 99 Hawai`i 281, 282 n.4, 54 P.3d 452,
453 n.4 (2002) (“Defamation actions are governed by HRS § 657-4
(1993), which provides that “‘[a]ll actions for libel or slander
shall be commenced within two years after the cause of action
accrued, and not after.’” (alteration in Bauernfiend)).
Plaintiff filed the instant action on June 4, 2010.
The Second Amended Complaint alleges that Defendant
Tate made various statements “in an effort to aid and abet
Defendant Acob and Defendant County to create . . . more
disparaging and negative marks in her personnel file such that
Plaintiff’s employment would be placed in a position where she
could be terminated.”
[Second Amended Complaint at ¶ 51.]
The
Second Amended Complaint alleges that Defendant Tate made the
following statements:
•Shortly after Defendant Tate’s September 2007 request that
Plaintiff promote Ms. Jura, “Plaintiff learned that
Defendant Tate began to refer to the Plaintiff as a
‘lesbian’ and a ‘butch’ to other members of Defendant
County’s staff, including Ms. Jura, and/or made other
inappropriate comments about Plaintiff.” [Id. at ¶ 26.]
•On or about October 30, 2007, Defendant Tate made a complaint
against Plaintiff alleging that she had discriminated
against Ms. Jura and Ms. Murakami and suggesting that
Plaintiff was discriminating against all women in the office
with whom Defendant Tate had a relationship. [Id. at ¶ 32.]
•On or about August 21, 2008, Defendant Tate made complaints to
26
Defendant Acob alleging that Plaintiff “referenced [sic] to
Ms. Jura and Ms. Murakami as ‘idiots’ and ‘morons’ to
another deputy attorney” and Plaintiff “stated to another
employee that she ‘hated’ another deputy, Robert Rivera, and
she was in fact responsible for his demotion.” [Id. at
¶ 47.]
•Sometime after August 27, 2008, Defendant Tate “made statements
to other office personnel and spread rumors amongst the
office that Plaintiff had earlier referred to Ms. Jura and
Ms. Murakami . . . as ‘idiots’ and ‘morons’.” [Id. at
¶ 44.]
In the Time-Bar Motion, Defendants seek summary
judgment on the portions of Count VI based on Defendant Tate’s
October 30, 2007 report and Defendant Tate’s alleged September
2007 statements regarding Plaintiff’s sexual orientation.
in Supp. of Time-Bar Motion at 12.]
[Mem.
Plaintiff concedes that this
Court should grant the Time-Bar Motion as to those portions of
Count VI because those incidents occurred more than two years
prior to the filing of the Complaint.
[Time-Bar Opp. at 11-12.]
This Court agrees and GRANTS Defendants’ Time-Bar Motion as to
the portions of Count VI based on Defendant Tate’s October 30,
2007 report and Defendant Tate’s alleged September 2007
statements regarding Plaintiff’s sexual orientation.
B.
Title VII
Count I expressly asserts Title VII violations against
the County.
Plaintiff asserts that she “was demoted, received
negative and unfair treatment, threatened with disciplinary
action, discriminated against, and ultimately terminated by
Defendant County because of and on the basis of her protected
27
class.”
[Second Amended Complaint at ¶ 113.]
Count II (sexual
harassment/hostile work environment) and Count III (retaliation)
do not expressly state whether they are state law claims or Title
VII claims.
The Court notes that Count III alleges the County
retaliated against Plaintiff for “engag[ing] in a protected
activity by filing Departmental and EEOC/HCRC complaints and
reports about discriminatory and/or harassing activities.”
[Id.
at ¶ 126.]
Title VII requires a claimant to exhaust her
administrative remedies prior to filing a civil action against
the employer that allegedly discriminated against her.
§ 2000e–5.
42 U.S.C.
“Title VII . . . require[s] that an aggrieved party
file a charge with the EEOC within 300 days of the allegedly
unlawful practice to preserve a claim for a subsequent civil
suit.”
Kagawa v. First Hawaiian Bank/Bancwest Corp., 819 F.
Supp. 2d 1125, 1130 (D. Hawai`i 2011) (some citations omitted)
(citing 42 U.S.C. § 2000e–5(e)(1)).
Defendants urge the Court to grant summary judgment in
their favor as to the portions of Plaintiff’s Title VII claims
based on acts that occurred more than 300 days prior to the first
charge that Plaintiff filed with the EEOC.
Time-Bar Motion at 6-11.]
[Mem. in Supp. of
In October 2008, Plaintiff filed a
Charge of Discrimination with the EEOC.
The EEOC received it on
October 17, 2008 (“October 2008 Charge”).
28
[Tipton Time-Bar
Decl., Exh. B-1 at 1.]
The Second Amended Complaint alleges:
•In early 2007, Defendant Acob reassigned Plaintiff from her
position as a line deputy to District Court Supervisor.
[Second Amended Complaint at ¶ 22.]
•In September 2007, Defendant Tate allegedly asked Plaintiff to
promote Ms. Jura. [Id. at ¶¶ 23-25.]
•In September 2007, Defendant Tate allegedly began to refer to
Plaintiff as a “lesbian” and a “butch” to office staff.
[Id. at ¶ 26.]
•On October 29, 2007, Defendant Tate allegedly asked Plaintiff to
promote Ms. Murakami. [Id. at ¶ 28.]
•On October 30, 2007, Defendant Tate made a complaint to
Defendant Acob alleging that Plaintiff may be discriminating
against Ms. Jura and Ms. Murakami. Defendant Acob and the
County initiated an internal investigation into the
complaint. [Id. at ¶¶ 32-33.]
All of these events occurred more than 300 days prior to the
filing of Plaintiff’s October 2008 Charge.
Plaintiff, however, has clarified that she does not
assert discrimination claims based solely upon on Defendant
Tate’s requests that she promote Ms. Jura and Ms. Murakami.
Those requests, in and of themselves, did not constitute
discrimination against Plaintiff.
[Time-Bar Opp. at 8.]
Based
upon Plaintiff’s representations, this Court DENIES AS MOOT
Defendants’ Time-Bar Motion to the extent that Defendants seek
summary judgment as to the portion of Plaintiff’s Title VII
claims based on Defendant Tate’s alleged requests that Plaintiff
promote Ms. Jura and Ms. Murakami.
As to the reassignment in early 2007, the alleged
sexual orientation statements in September 2007, the October 30,
29
2007 complaint alleging that Plaintiff was discriminating against
Ms. Jura and Ms. Murakami, and the resulting investigation, these
are adverse employment actions or otherwise discriminatory
conduct that Plaintiff allegedly suffered.
These incidents
clearly occurred more than 300 days before Plaintiff filed the
October 2008 Charge.
This Court acknowledges that “filing a timely charge of
discrimination with the EEOC is not a jurisdictional prerequisite
to suit in federal court, but a requirement that, like a statute
of limitations, is subject to waiver, estoppel, and equitable
tolling.”
Zipes v. Trans World Airlines, Inc., 455 U.S. 385, 393
(1982) (footnote omitted).
“Equitable tolling is, however, to be
applied only sparingly, and [c]ourts have been generally
unforgiving . . . when a late filing is due to claimant’s failure
to exercise due diligence in preserving his legal rights[.]”
Nelmida v. Shelly Eurocars, Inc., 112 F.3d 380, 384 (9th Cir.
1997) (some alterations in Nelmida) (quotation marks and some
citations omitted) (citing Irwin v. Department of Veterans
Affairs, 498 U.S. 89, 96, 111 S. Ct. 453, 458, 112 L. Ed. 2d 435
(1990)).
Plaintiff’s Time-Bar Opposition does not assert that
tolling applies in the instant case.
Based on the record before
the Court, and viewing the record in the light most favorable to
the non-moving party, see Miller v. Glenn Miller Prods., Inc.,
454 F.3d 975, 988 (9th Cir. 2006) (stating that, on a summary
30
judgment motion, “the nonmoving party’s evidence is to be
believed, and all justifiable inferences are to be drawn in that
party’s favor” (citations, quotation marks, and brackets
omitted)), this Court CONCLUDES that equitable tolling does not
apply in the instant case.
Plaintiff argues that the Court should deem these
allegations timely under the continuing violation doctrine.
[Time-Bar Opp. at 6-8 (discussing Green v. Los Angeles County
Superintendent of Schools, 883 F.2d 1472, 1480 (9th Cir. 1989);
Lesane v. Hawaiian Airlines, 75 F. Supp. 2d 1113, 1125-26 (D.
Haw. 1999)).]
The October 2008 Charge states that the earliest
date the discrimination took place was September 1, 2007 and the
latest date was September 29, 2008.
“CONTINUING ACTION”.
Plaintiff marked the box for
[Tipton Time-Bar Decl., Exh. B-1 at 1.]
Plaintiff’s argument is misplaced because the United States
Supreme Court’s decision in National Railroad Passenger Corp. v.
Morgan, 536 U.S. 101 (2002), overruled prior Ninth Circuit case
law regarding continuing violations of Title VII.
In Morgan, the Supreme Court held that
“discrete discriminatory acts are not actionable
if time barred, even when they are related to acts
alleged in timely filed charges,” 122 S. Ct. at
2072, while “a hostile work environment claim
. . . will not be time barred so long as all acts
which constitute the claim are part of the same
unlawful employment practice and at least one act
falls within the time period,” id. at 2077. . . .
The Supreme Court’s decision in Morgan
invalidated our previous application of the
31
continuing violation doctrine to discrete acts of
discrimination and retaliation. Our ruling in the
case had reversed summary judgment on the ground
that Morgan had raised a genuine issue of fact as
to whether a serial violation existed, linking the
employer’s pre- and post-limitations conduct.
Morgan [v. Nat’l R.R. Passenger Corp.], 232 F.3d
[1008,] 1017-18 [(9th Cir. 2000)]. We did not
consider whether the employer had engaged in a
systematic policy or practice of discrimination,
and, as a consequence, the Supreme Court’s
decision did not directly overrule our
construction of the latter theory. However, it
did not specifically endorse that theory either.
See, e.g., Morgan, 122 S. Ct. at 2069, 2072-73
(mentioning the “systematic” theory of continuing
violation but making no ruling as to its
viability). Instead, the Court elaborated a set
of general principles regarding how courts ought
to apply the Title VII filing deadlines.
Pointing to the mandatory language of the
statute, the Court reasoned that “strict adherence
to the procedural requirements specified by the
legislature is the best guarantee of evenhanded
administration of the law.” Id. at 2070 (internal
quotation marks and citation omitted). Dismissing
the respondent’s argument that Title VII’s
protection against unlawful employment “practices”
provided a statutory basis for our continuing
violation doctrine, the Court clarified that it
“interpret[s] the term ‘practice’ to apply to a
discrete act or single ‘occurrence,’ even when it
has a connection to other acts.” Id. at 2071.
The Court emphasized that “[d]iscrete acts such as
termination, failure to promote, denial of
transfer, or refusal to hire are easy to
identify,” id. at 2073, and thereby concluded that
“[e]ach incident of discrimination . . .
constitutes a separate actionable ‘unlawful
employment practice,’” id. (emphasis added). We
must conclude from the Court’s statements that
when, as in the present case, a plaintiff pursues
several disparate treatment claims, based on
discrete discriminatory acts, the limitations
period will begin to run for each individual claim
from the date on which the underlying act occurs.
If a plaintiff chooses to bring separate claims
32
based on each discriminatory act, his assertion
that this series of discrete acts flows from a
company-wide, or systematic, discriminatory
practice will not succeed in establishing the
employer’s liability for acts occurring outside
the limitations period because the Supreme Court
has determined that each incident of
discrimination constitutes a separate actionable
unlawful employment practice.
Lyons v. England, 307 F.3d 1092, 1105-07 (9th Cir. 2002)
(footnotes omitted) (some alterations in Lyons).
The Second Amended Complaint’s allegations include the
following discriminatory acts, which occurred within 300 days
prior to the filing of the October 2008 Charge: around August
2008, the failure to name Plaintiff as the Manager of the Year
when she was the only person nominated for the award; [Second
Amended Complaint at ¶¶ 40-41;] on August 25, 2008, Defendant
Acob threatened to discipline and/or terminate Plaintiff because
she allegedly failed to address an incident involving a drawing
or picture left behind by a former department employee; [id. at
¶ 42;] and Defendant Tate’s statements, made sometime after
August 27, 2008, to office personnel that Plaintiff called
Ms. Jura and Ms. Murakami idiots and morons, his complaints, made
on or about August 21, 2008, to Defendant Acob about Plaintiff’s
alleged statements, and the ensuing investigation [id. at ¶¶ 44,
47-48].
Based on the analysis in Morgan and Lyons, this Court
concludes that the three aforementioned acts which occurred
33
beyond the 300-day period were discrete incidents of
discrimination that are distinct from the incidents which
occurred during the 300-day period, and that the limitations
period began to run for each individual claim on the date that
each incident occurred.
This Court therefore CONCLUDES that the
portions of Plaintiff’s Title VII claims based on Plaintiff’s
reassignment in early 2007, the alleged sexual orientation
statements in September 2007, and the October 30, 2007 complaint
and investigation regarding Plaintiff’s alleged discrimination
against Ms. Jura and Ms. Murakami are time-barred.
The Court
GRANTS the Time-Bar Motion and GRANTS summary judgment in favor
of Defendants as to those portions of Plaintiff’s Title VII
claims because there are no genuine disputes of material fact and
Defendants are entitled to judgment as a matter of law as to the
time-barred Title VII claims.
C.
See Fed. R. Civ. P. 56(a).
Chapter 378 Claims
Although Plaintiff does not expressly state so, Count
II and Count III appear to assert violations of Haw. Rev. Stat.
§ 378-2(a)(1) and (2).
Further, Count IV expressly asserts a
discriminatory practices claim pursuant to Chapter 378.
A person
aggrieved by one of the unlawful practices identified in, inter
alia, § 378-2, may file a complaint with the HCRC under the
procedures identified in Haw. Rev. Stat. Chapter 368.
Stat. § 378-4.
Haw. Rev.
Haw. Rev. Stat. § 368-11(c) states, in pertinent
34
part:
(c) No complaint shall be filed after the
expiration of one hundred eighty days after the
date:
(1) Upon which the alleged unlawful
discriminatory practice occurred; or
(2) Of the last occurrence in a pattern of
ongoing discriminatory practice.
Plaintiff’s October 2008 Charge, as well as her Charges
of Discrimination that the EEOC received on June 10, 2009 (“June
2009 Charge”) and July 9, 2009 (“July 2009 Charge”),15 are deemed
to have been dual-filed with the HCRC.
See E.E.O.C. v. NCL Am.
Inc., 504 F. Supp. 2d 1008, 1010 (D. Hawai`i 2007) (stating that
“Hawaii is a ‘worksharing’ state such that administrative claims
with the EEOC are deemed ‘dual-filed’ with” the HCRC).
Pursuant
to § 378-4 and § 368-11(c), Plaintiff timely filed her charges as
to the incidents that occurred within 180 days prior to the
filing of each respective charge.
The Court notes that the Hawai`i Supreme Court has held
that, in interpreting § 378-2, federal case law interpreting
Title VII is persuasive, but not controlling.
Arquero v. Hilton
Hawaiian Village LLC, 104 Hawai`i 423, 429-30, 91 P.3d 505,
511-12 (2004).
Further, this district court has applied the
Morgan continuing violation analysis to both Title VII and
15
The June 2009 Charge and the July 2009 Charge are
Exhibits B-2 and B-3, respectively, to the Tipton Time-Bar
Declaration.
35
Chapter 378 claims.
See, e.g., White v. Pac. Media Grp., Inc.,
322 F. Supp. 2d 1101, 1112-13 (D. Hawai`i 2004).
This Court
therefore applies the same estoppel and continuing violation
analysis set forth for Plaintiff’s Title VII claims, supra
section I.B., to Plaintiff’s Chapter 378 claims.
Thus, the Court
also concludes that estoppel is not warranted as to Plaintiff’s
Chapter 378 claims, and the Court concludes that the incidents
which form the bases of the Chapter 378 claims do not constitute
a continuing violation.
For the reasons stated in section I.B., this Court also
DENIES AS MOOT Defendants’ Time-Bar Motion to the extent that it
seeks summary judgment as to the portions of Plaintiff’s Chapter
378 claims based on Defendant Tate’s alleged requests that
Plaintiff promote Ms. Jura and Ms. Murakami.
This Court also
CONCLUDES that the portions of Plaintiff’s Chapter 378 claims
based on Plaintiff’s reassignment in early 2007, the alleged
sexual orientation statements in September 2007, and the October
30, 2007 complaint and investigation regarding Plaintiff’s
alleged discrimination against Ms. Jura and Ms. Murakami are
time-barred.
The Court therefore GRANTS the Time-Bar Motion and
GRANTS summary judgment in favor of Defendants as to those
portions of Plaintiff’s Chapter 378 claims.
The Court notes that more than 180 days elapsed between
the filing of the October 2008 Charge and the filing of the June
36
2009 Charge.
Plaintiff’s Chapter 378 claims based upon incidents
that occurred more than 180 days prior to the filing of the June
2009 Charge and after the incidents alleged in the October 2008
Charge would be time-barred.
Plaintiff’s Second Amended
Complaint, however, does not allege any discriminatory or
retaliatory incidents that occurred during that period.
Thus,
except for the portions of Plaintiff’s Chapter 378 claims
identified supra, the Court CONCLUDES that the remaining portions
of Plaintiff’s Chapter 378 claims are timely.
D.
Whistleblowers’ Protection Act
The statute of limitations for claims under the Hawai`i
Whistleblowers’ Protection Act is two years.
§ 378-63(a).
Haw. Rev. Stat.
Count V alleges that the County “discharged,
threatened, or otherwise discriminated against Plaintiff
regarding her terms, conditions, and privileges of employment”
because she “reported, or was about to report, to Defendant
County or a public body, a suspected violation a [sic] state or
federal law, rule, ordinance, or regulation.”
[Second Amended
Complaint at ¶¶ 136-37.]
This Court has identified the following allegations in
the Second Amended Complaint that occurred more than two years
prior to the filing of Plaintiff’s original complaint:
Plaintiff’s reassignment in early 2007; Defendant Tate’s
September 2007 request that Plaintiff promote Ms. Jura; Defendant
37
Tate’s September 2007 statements regarding Plaintiff’s sexual
orientation; Defendant Tate’s October 2007 request that Plaintiff
promote Ms. Murakami; and Defendant Tate’s October 30, 2007
complaint alleging that Plaintiff discriminated against Ms. Jura
and Ms. Murakami, which resulted in an internal investigation.
[Id. at ¶¶ 22-26, 28, 32-33.]
First, Plaintiff does not allege that Defendant Acob
reassigned her in January 2007 because she reported, or was about
to report, a violation.
Second, Plaintiff has clarified that she
does not allege that Defendant Tate’s requests that Plaintiff
promote Ms. Jura and Ms. Murakami were acts of discrimination
against Plaintiff.
This Court therefore finds that Count V is
not based upon these allegations.
Plaintiff alleges that, shortly after Defendant Tate’s
request that she promote Ms. Jura, which Plaintiff reported to
the County and the management team, Defendant Tate began
referring to Plaintiff as a “lesbian” and a “butch” to County
personnel.
[Id. at ¶¶ 25-26.]
Even assuming, arguendo, that
Plaintiff is alleging that Defendant Tate began making those
statements because she reported his request that she promote Ms.
Jura, and assuming further that Defendant Tate’s statements are
attributable to the County, Plaintiff failed to file her
complaint within two years after the incident.
38
Plaintiff also alleges that, the day after the
department’s management informed Defendant Tate that Plaintiff
had reported his inappropriate requests and comments, Defendant
Tate filed his internal complaint alleging that Plaintiff
discriminated against Ms. Jura and Ms. Murakami.
investigation followed.
An internal
[Id. at ¶¶ 29-30, 32-33.]
Even
assuming, arguendo, that Plaintiff is alleging that Defendant
Tate made the October 30, 2007 report because she reported his
improper requests and conduct, and assuming further that
Defendant Tate’s actions are attributable to the County,
Plaintiff failed to file her complaint within two years after
this incident.
This Court CONCLUDES that the portions of Plaintiff’s
Whistleblowers’ Protection Act claims based on the alleged sexual
orientation statements in September 2007, and the October 30,
2007 complaint and investigation regarding Plaintiff’s alleged
discrimination against Ms. Jura and Ms. Murakami are time-barred.
The Court therefore GRANTS the Time-Bar Motion and GRANTS summary
judgment in favor of Defendants as to those portions of Count V.
The Court CONCLUDES that the remaining portions of Count V are
timely.
E.
Time-barred Incidents as Background Facts
Although this Court has granted summary judgment in
favor of Defendants as to certain incidents alleged in the Second
39
Amended Complaint, this Court emphasizes that these rulings only
preclude Plaintiff from pursing claims based on those incidents.
In other words, Plaintiff cannot obtain relief from Defendants
for any damages that she suffered directly from those incidents.
Plaintiff, however, may rely on the time-barred incidents as
background facts in support of her timely claims, if Plaintiff’s
evidence of those incidents is admissible pursuant to the Federal
Rules of Evidence and the applicable case law.
The Ninth Circuit
has recognized that
time-barred acts should be considered “as evidence
that conduct falling within the limitations period
had an unconstitutional purpose” [RK Ventures,
Inc. v. City of Seattle,] 307 F.3d [1045,] 1050
[(9th Cir. 2002)]. In that case, we held that
“[i]n assessing whether acts occurring within the
limitations period are constitutional, we may look
to prelimitations period events as evidence of an
unconstitutional motive.” Id.; see also Anderson
v. Reno, 190 F.3d 930, 936 (9th Cir. 1999)
(“[E]ven if not actionable in and of themselves,
untimely claims serve as relevant background
evidence to put timely claim in context.”),
overruled on other grounds by Nat’l R.R. Passenger
Corp. v. Morgan, 536 U.S. 101, 122 S. Ct. 2061,
153 L. Ed. 2d 106 (2002). . . .
Olsen v. Idaho State Bd. of Med., 363 F.3d 916, 929 n.8 (9th Cir.
2004) (some alterations in Olsen).
The Court therefore DENIES the Time-Bar Motion to the
extent that Defendants seek a ruling that Plaintiff is precluded
from presenting evidence of time-barred incidents to support her
timely claims.
If Defendants wish to challenge the admissibility
of Plaintiff’s evidence of the time-barred incidents, Defendants
40
may raise those challenges in their motion in limine.
II.
Immunity Motion
The Immunity Motion seeks summary judgment in favor of
Defendants Acob and Tate on the ground that they have immunity
from Plaintiff’s claims against them.
The only claim in the
Second Amended Complaint against Defendant Acob is the Haw. Rev.
Stat. § 378-2(a)(3) aiding and abetting claim in Count IV, and
the only claims against Defendant Tate are the aiding and
abetting claim and the defamation claim in Count VI.
First, the Court agrees with Plaintiff that the 4/5/12
Order resolves Defendants’ argument in the Immunity Motion that
Defendants Acob and Tate are entitled to summary judgment on the
aiding and abetting claim because Plaintiff failed to identify a
person who incited, compelled or coerced the discriminatory act
and another person who was incited, compelled or coerced into
committing the discriminatory act.
See 4/5/12 Order, 2012 WL
1158742, at *6.
Defendants also argue that this Court must dismiss the
aiding and abetting claim against Defendants Acob and Tate
because Plaintiff did not plead malice in the Second Amended
Complaint.
Finally, Defendants argue that, even assuming
Plaintiff properly pled her aiding and abetting claim, Plaintiff
has not identified a genuine issue of material fact regarding
Defendant Acob’s and Defendant Tate’s qualified immunity and
41
they are entitled to judgment as a matter of law.
This district court has described the following
analysis of qualified immunity from state law claims:
Hawaii law provides that a nonjudicial
government official has a qualified or conditional
privilege with respect to his or her tortious
actions taken in the performance of his or her
public duty. Towse v. State of Hawaii, 647 P.2d
696, 702 (Haw. 1982); Runnels v. Okamoto, 525 P.2d
1125, 1128 (Haw. 1974). This privilege shields
all but the most guilty nonjudicial officials from
liability, but not from the imposition of a suit
itself. Towse, 647 P.2d at 702. The privilege is
the result of the Hawaii Supreme Court’s balancing
of competing interests. It protects the innocent
public servant’s pocketbook, yet it allows an
injured party to be heard. See Medeiros v. Kondo,
522 P.2d 1269, 1272 (Haw. 1974).
For a tort action to lie against a
nonjudicial government official, the injured
party must allege and demonstrate by clear
and convincing proof that the official was
motivated by malice and not by an otherwise
proper purpose. Towse, 647 P.2d at 702–03;
Medeiros, 522 P.2d at 1272. When a public
official is motivated by malice, and not by
an otherwise proper purpose, Hawaii law
provides that the cloak of immunity is lost
and the official must defend the suit the
same as any other defendant. Marshall v.
Univ. of Haw., 821 P.2d 937, 946 (Haw. Ct.
App. 1991), abrogated on other grounds by Hac
v. Univ. of Haw., 73 P.3d 46 (Haw. 2003).
The existence or absence of malice is
generally a question for the jury. Runnels,
525 P.2d at 1129. However, when the
existence or absence of malice is
demonstrated to the court via uncontroverted
affidavits or depositions, the court may rule
on the existence or absence of malice as a
matter of law. See id.
Edenfield v. Estate of Willets, Civ. No. 05–00418
42
SOM–BMK, 2006 WL 1041724, at *11–12 (D. Haw. Apr.
14, 2006) (parallel citations omitted).
The Supreme Court of Hawai`i has held that
“the phrase ‘malicious or improper purpose’ should
be defined in its ordinary and usual sense.”
Awakuni v. Awana, 165 P.3d 1027, 1042 (Haw. 2007).
In Awakuni, the Supreme Court relied on Black’s
Law Dictionary, which defines “malicious” as
“‘[s]ubstantially certain to cause injury’ and
‘[w]ithout just cause or excuse’”; and defines
“malice” as “‘[t]he intent, without justification
or excuse, to commit a wrongful act[,]’ ‘reckless
disregard of the law or of a person’s legal
rights[,]’ and ‘[i]ll will; wickedness of heart.’”
Id. (quoting Black’s Law Dictionary 976–77 (8th
ed. 2004)).
Long v. Yomes, Civ. No. 11–00136 ACK–KSC, 2011 WL 4412847, at *6
(D. Hawai`i Sept. 20, 2011) (alterations in Long) (footnote
omitted).
As Defendants argue in the Immunity Motion, an actual
malice standard applies as to all tort claims, except defamation.
This district court has stated:
To determine whether [the defendants] acted
with malice, Plaintiff argues that the applicable
standard is the “reasonable man” standard
articulated in Towse, 64 Haw. at 633, 647 P.2d at
703. Nevertheless, Towse involved a defamation
case, and the Court notes that there are no cases
applying the “reasonable man” test to
non-defamation torts by government officials. See
Edenfield v. Estate of Willets, 2006 WL 1041724,
at *12 (D. Haw. 2006) (“This court does not read
Towse as requiring application of the ‘reasonable
man’ test to the facts of this nondefamation case.
To hold otherwise would effectively remove the
‘malice’ requirement and run contrary to the
Hawaii Supreme Court’s admonition that only the
most guilty of officials are liable for their
tortious acts”). The Court concludes that the
‘reasonable man’ standard is inapplicable to
43
determining malice in cases involving torts other
than defamation. The applicable standard is
whether Plaintiffs have met their burden of
proving that the officers were motivated by malice
and not by an otherwise proper purpose.
White v. Sabatino, 526 F. Supp. 2d 1143, 1161-62 (D. Hawai`i
2007) (footnote omitted).
Under Towse, a court must measure the
actions of the defendant in a defamation action against the
actions of “a reasonable man under the circumstances, with due
regard to the strength of his belief, the grounds that he has to
support it, and the importance of conveying the information.”
64
Haw. at 633, 647 P.2d at 703 (citations and quotation marks
omitted).
A.
Pleading Requirement
To the extent that Defendants argue Plaintiff failed to
sufficiently plead malice in the Second Amended Complaint, a
dismissal standard, rather than a summary judgment standard,
applies.
“To survive a motion to dismiss, a complaint must
contain sufficient factual matter, accepted as true, to ‘state a
claim to relief that is plausible on its face.’”
Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)); see also Weber v. Dep’t of
Veterans Affairs, 521 F.3d 1061, 1065 (9th Cir. 2008).
This Court acknowledges that it has previously
dismissed state law claims without prejudice where the plaintiff
failed to plead malice sufficiently to overcome the conditional
44
privilege.
See, e.g., Salameh v. City & Cnty. of Honolulu, Civil
No. 12–00073 LEK–KSC, 2012 WL 1109052, at *5-6 (D. Hawai`i Mar.
30, 2012); Smith v. Davidson, Civil No. 11–00498 LEK–RLP, 2012 WL
996890, at *7-8 (D. Hawai`i Mar. 22, 2012).
Further, this
district court has recognized that a plaintiff must “must
allege . . . that the official was motivated by malice and not by
an otherwise proper purpose.”
Long, 2011 WL 4412847, at *6 (some
citations omitted) (citing Towse, 647 P.2d at 702–03).
Nothing
in these and similar cases, however, requires that a plaintiff
plead the word “malice” in the complaint.
Under the dismissal
standard, all that is required is that the plaintiff plead
sufficient factual matter, accepted as true, to state a plausible
argument that the defendant acted with malice.
The Second Amended Complaint alleges, inter alia, that
Defendant Acob: demoted Plaintiff without reason; [Second Amended
Complaint at ¶¶ 19, 22;] Defendant Acob and other members of the
department’s management immediately told Defendant Tate about
Plaintiff’s complaint that he asked her to promote Ms. Jura and
Ms. Murakami; Defendant Acob and other members of management
failed to take action, or took only minimal action, on
Plaintiff’s complaint; [id. at ¶¶ 29-31;] Defendants decided not
to present a management award for which Plaintiff was the only
person nominated; [id. at ¶¶ 40-41;] became irate and threatened
to discipline or terminate Plaintiff based on an incident
45
involving a drawing or picture that a former employee left in the
hallway; [id. at ¶ 42;] lied when he told Plaintiff that
Corporation Counsel conducted the investigations into the
complaints involving Plaintiff and Defendant Tate; [id. at ¶¶ 5556;] required Plaintiff to attend a training class taught by
Defendant Tate, in spite of her request for alternate training in
light of her history with Defendant Tate, and disciplined her for
leaving the class early after she became physically ill; [id. at
¶¶ 58-64;] threatened to demote Plaintiff if she failed to
maintain contact with Defendant Tate or to attend any of
Defendant Tate’s training classes; [id. at ¶¶ 66-69;] threatened
to discipline Plaintiff if he was dissatisfied with Ms. Sims’
attendance; [id. at ¶ 83;] and Defendant Acob and the County
terminated Plaintiff for insubordination although two male
employees were only demoted for similar misconduct within the
same year or the previous year [id. at ¶¶ 88, 90-95].
This Court
therefore concludes that the Second Amended Complaint
sufficiently pleads factual allegations that state a plausible
argument that Defendant Acob acted with malice.
The Second Amended Complaint also alleges, inter alia,
that Defendant Tate: asked Plaintiff to promote two DPAs with
whom he was romantically involved; [id. at ¶¶ 23-24, 27-28;]
began referring to Plaintiff as a “lesbian” and a “butch” shortly
after his first request; [id. at ¶ 26;] filed a complaint
46
alleging that Plaintiff discriminated against Ms. Jura and
Ms. Murakami after he learned that Plaintiff reported his
promotion requests; [id. at ¶¶ 29-30, 32;] spread rumors among
the office that Plaintiff had referred to Ms. Jura and Ms.
Murakami as “idiots” and “morons”; and filed another complaint
about the incident [id. at ¶¶ 44, 47].
This Court concludes that
the Second Amended Complaint sufficiently pleads factual
allegations that state a plausible argument that Defendant Tate
acted with malice.
This Court therefore DENIES the Immunity Motion as to
Defendants’ argument that the Court should dismiss Plaintiff’s
claims against Defendants Acob and Tate based on the failure to
plead malice in the Second Amended Complaint.
B.
Entitlement to Qualified Immunity
Defendants also argue that this Court should conclude,
as a matter of law, that Defendants Acob and Tate are entitled to
qualified immunity.
1.
Defendant Tate
Plaintiff has presented her testimony that Defendant
Tate asked her to promote Ms. Jura and Ms. Murakami and that she
refused these requests.
[Pltf. Depo. at 59-60, 76.]
Although
Defendant Tate denies making these requests, Plaintiff has also
presented Defendant Acob’s testimony acknowledging that Plaintiff
reported such requests to him and that the requests were
47
improper.
Defendant Acob testified that he instructed Defendant
Tate not to do it again.
[Acob Depo. II at 83.]
Defendant Acob
also testified that Defendant Tate complained to him that Ms.
Jura and Ms. Murakami might be fired for a discriminatory reason
because Plaintiff was jealous of them.
[Id. at 80.]
Further, it
is undisputed that Defendant Tate told Ms. Jura that Plaintiff
was a homosexual.
[Tate Depo. at 25.]
Although, as discussed supra, any claims based upon
these incidents are time-barred, viewing the record in the light
most favorable to Plaintiff, the Court finds that they are
relevant to the issue whether Defendant Tate acted with malice in
the incidents which are the subject of timely claims.
In this
Court’s view, the ultimate determination of the claims against
Defendant Acob will depend upon the credibility of each party’s
version of the relevant events.
This district court has
recognized that
“[o]n summary judgment, [the court] must draw all
justifiable inferences in favor of the nonmoving
party, including questions of credibility and of
the weight to be accorded particular evidence.”
Masson v. New Yorker Magazine, Inc., 501 U.S. 496,
520 (1991); see Bravo v. City of Santa Maria, 665
F.3d 1076, 1083 (9th Cir. 2011) (“If a rational
trier of fact could resolve a genuine issue of
material fact in the nonmoving party’s favor, the
court ‘may not affirm a grant of summary
judgment . . . because credibility determinations,
the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury
functions, not those of a judge.’” (quoting Nelson
v. City of Davis, 571 F.3d 924, 927 (9th Cir.
2009))).
48
Ingalls v. Gov’t Emps. Ins. Co., Civil Nos. 11–00244 JMS/RLP,
11–00488 JMS/KSC, 2012 WL 2873562, at *7 n.14 (D. Hawai`i
July 12, 2012) (alterations in Ingalls).
The Court therefore FINDS that the incidents listed
supra are sufficient to establish genuine issues of material fact
as to whether Defendant Tate acted with malice, under either the
actual malice or the reasonable man standard, in the incidents
which are the bases of timely claims.
Thus, the Court cannot
find, at the present time, that Defendant Tate is entitled to
qualified immunity.
Defendants’ Motion is DENIED WITHOUT
PREJUDICE as to Defendant Tate.
Defendants may revisit the
qualified immunity issue based on the evidence adduced at trial.
2.
Defendant Acob
In the letter in which Defendant Acob terminated
Plaintiff’s employment, he stated:
In writing for your subordinate to sign-off
on, you have informed your subordinate that my
position on leaves as it pertains to this
subordinate is inappropriate. You have imposed
your own position over that of the department’s to
the detriment of the department. As a result,
among other things, you essentially unilaterally
reversed the corrective action I previously placed
upon this employee. . . .
[Pltf.’s Suppl. Immunity CSOF, Decl. of Counsel, Exh. 5.]
Defendant Acob’s deposition testimony, however, does not clearly
identify any action that Defendant Acob directed Plaintiff to
take against Ms. Sims but that Plaintiff refused to implement,
49
although Plaintiff did state her disagreement with his decision.
[Pltf.’s Concise Statement of Material Facts in Opp. to Immunity
Motion, filed 4/9/12 (dkt. no. 120) (“Pltf.’s Immunity CSOF”),
Decl. of Counsel, Exh. 3 (excerpts of 1/20/12 Defendant Acob
Depo. Trans. (“Acob Depo. I”)) at 88-92, 99-100, 102-18.]
Defendant Acob also testified that, in the case of a male manager
who disclosed confidential information to a DPA who should not
have been privy to the information, Defendant Acob only demoted
him.
[Acob Depo. I at 15-16.]
This Court acknowledges that it is a much closer
question whether Defendant Acob is entitled to summary judgment
based on qualified immunity than whether Defendant Tate is
entitled to qualified immunity.
The Court, however, FINDS that
the circumstances related to Plaintiff’s termination, together
with Defendant Acob’s actions in connection with the incidents
and complaints between Plaintiff and Defendant Tate, are
sufficient to establish genuine issues of material fact as to
whether Defendant Acob acted with actual malice in the incidents
which are the subject of timely claims.
Further, as with the
claims against Defendant Tate, credibility issues are also
critical to the resolution of the claim against Defendant Acob,
and this Court cannot resolve credibility issues on summary
judgment.
The Court therefore cannot find, at the present time,
that Defendant Acob is entitled to qualified immunity.
50
Defendants’ Motion is DENIED WITHOUT PREJUDICE as to Defendant
Acob.
Defendants may revisit the qualified immunity issue based
on the evidence adduced at trial.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Partial Summary Judgment on the Issue of Qualified Immunity for
Individual Defendants, filed January 11, 2012, is HEREBY DENIED,
and Defendants’ Motion for Summary Judgment on Time-Barred
Claims, filed January 13, 2012, is HEREBY GRANTED IN PART AND
DENIED IN PART.
The denial of the Immunity Motion is WITHOUT
PREJUDICE as to the issue whether Defendants Acob and Tate are
entitled to qualified immunity.
Defendants’ Time-Bar Motion is GRANTED insofar as the
Court GRANTS summary judgment in favor of Defendants as to:
•the portions of Plaintiff’s Title VII claims and Plaintiff’s
Haw. Rev. Stat. Chapter 378 claims based on Plaintiff’s
reassignment in early 2007, Defendant Tate’s alleged
September 2007 statements regarding Plaintiff’s sexual
orientation, and Defendant Tate’s October 30, 2007
complaint, and the ensuing investigation, regarding
Plaintiff’s alleged discrimination against Ms. Jura and
Ms. Murakami;
•the portion of Count V based upon Defendant Tate’s alleged
statements beginning in September 2007 about Plaintiff’s
sexual orientation and Defendant Tate’s October 30, 2007
complaint and ensuing investigation; and
•the portion of Count VI based upon Defendant Tate’s
October 30, 2007 report and Defendant Tate’s alleged sexual
orientation statements in September 2007.
Defendants’ Time-Bar Motion is DENIED AS MOOT as to the portions
of Plaintiff’s Title VII claims and Plaintiff’s Chapter 378
51
claims based solely upon Defendant Tate’s requests that Plaintiff
promote Ms. Jura and Ms. Murakami.
Defendants’ Time-Bar Motion
is DENIED in all other respects.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, August 31, 2012.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARIE J. KOSENGARTEN V. THE DEPARTMENT OF THE PROSECUTING
ATTORNEY, ET AL; CIVIL NO. 10-00321 LEK-KSC; ORDER DENYING
DEFENDANTS’ MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF
QUALIFIED IMMUNITY FOR INDIVIDUAL DEFENDANTS AND GRANTING IN PART
AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON
TIME-BARRED CLAIMS
52
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