Kosegarten v. The Department of the Prosecuting Attorney, County of Maui et al
Filing
227
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF'S CLAIMS OF DISCRIMINATION BASED ON GENDER AND SEXUAL ORIENTATION AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY J UDGMENT ON CLAIMS OF RETALIATION AND DEFAMATION re 177 ; 184 - Signed by JUDGE LESLIE E. KOBAYASHI on 2/21/13. "Defendants' Discrimination Motion is DENIED as to the portions Count I and Count IV, Plaintiff's Tit le VII and Haw. Rev. Stat. § 378-2 claims, alleging gender discrimination claims based on her termination. Defendants' Retaliation Motion is DENIED as to the portions Count III and Count IV, Plaintiff's Title VII and Haw. Rev. Stat. § 378-2 claims, based on her termination. The motions are GRANTED in all other respects. In addition, this Court GRANTS summary judgment in favor of Defendants Acob and Tate as to the portion of Count IV alleging Plaintiff's § ; 378-2(3) claim against them. Insofar as this Court has granted summary judgment to Defendant Acob and Defendant Tate on all claims against them, this Court DIRECTS the Clerk's Office to terminate them as parties. The only claims remaining for trial are the portions of Counts I, III, and IV alleging gender discrimination and retaliation claims against the County based on Plaintiff's termination." (emt, )< center>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
MARIE J. KOSEGARTEN,
)
)
Plaintiff,
)
)
vs.
)
)
THE DEPARTMENT OF THE
)
PROSECUTING ATTORNEY, ET AL., )
)
Defendants.
)
_____________________________ )
CIVIL NO. 10-00321 LEK-KSC
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS’
MOTION FOR SUMMARY JUDGMENT ON PLAINTIFF’S CLAIMS OF
DISCRIMINATION BASED ON GENDER AND SEXUAL ORIENTATION AND
GRANTING IN PART AND DENYING IN PART DEFENDANTS’ MOTION FOR
SUMMARY JUDGMENT ON CLAIMS OF RETALIATION AND DEFAMATION
On September 24, 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 Summary Judgment on Plaintiff’s Claims of
Discrimination Based on Gender and Sexual Orientation
(“Discrimination Motion”).
[Dkt. no. 177.1]
On September 26,
2012, Defendants filed their Motion for Summary Judgment on
Claims of Retaliation and Defamation (“Retaliation Motion”).
[Dkt. no. 184.]
Plaintiff Marie J. Kosegarten (“Plaintiff”)
filed her memorandum in opposition to the Discrimination Motion
1
On September 26, 2012, Defendants filed a new memorandum
in support of the Discrimination Motion to correct a problem with
the signature on the original memorandum. [Dkt. no. 181.]
(“Discrimination Memorandum in Opposition”) and her memorandum in
opposition to the Retaliation Motion (“Retaliation Memorandum in
Opposition”) on November 5, 2012.
[Dkt. nos. 194, 197.]
Defendants filed their replies on September 17, 2012.
173, 175.]
[Dkt. nos.
On November 23, 2012, this Court found the instant
motions suitable for disposition without a hearing pursuant to
Rule LR7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawai`i (“Local Rules”).
[Dkt. no. 187.]
After careful consideration of the motions,
supporting and opposing memoranda, and the relevant legal
authority, Defendants’ Discrimination Motion and Defendants’
Retaliation Motion are HEREBY GRANTED IN PART AND DENIED IN PART
for the reasons set forth below.
BACKGROUND
This Court has set forth the factual and procedural
history of this case in numerous other orders, including the
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, filed August 31, 2012
(“8/31/12 Order”), [dkt. no. 172,2] and the Order Denying
Defendants’ Motion for Summary Judgment on Aiding and Abetting
Claims, filed October 30, 2012 (“10/30/12 Order”), [dkt. no.
2
The 8/31/12 Order is also available at 2012 WL 3801728.
2
193,3] which this Court incorporates by reference.
I.
Discrimination Motion
In addition to evidence already discussed in prior
orders, Defendants emphasize the following disciplinary actions
that Defendant Acob took against other deputy prosecuting
attorneys (“DPAs”) during his tenure as the County’s prosecuting
attorney: termination of Jackie Jura for performance issues;
termination of Robert Rivera for insubordination; termination of
Cynthia Sims for performance issues and insubordination; allowing
Yukari Murakami and James Masters to resign in lieu of
termination; and demoting and suspending John D. Kim for having a
case backlog and for failing to notify another attorney about
changes to a plea agreement.
[Mem. in Supp. of Discrimination
Motion at 8-9 (citing Defs.’ Concise Stat. in Supp. of
Discrimination Motion, filed 9/24/12 (dkt. no. 178) (“Defs.’
Discrimination CSOF”), Decl. of Benjamin M. Acob (“Acob
Discrimination Decl.”) at ¶¶ 27-28).]
Thus, Defendants argue
that Defendant Acob terminated people without regard to their
gender.
[Id. at 10.]
Defendants also emphasize the following promotions that
Defendant Acob made during his tenure as prosecuting attorney:
promoting Jerrie Sheppard, a female, to felony screening
supervisor on March 17, 2008 to replace John Tam; and promoting
3
The 10/30/12 Order is also available at 2012 WL 5381799.
3
Melinda Mendes to circuit court supervisor in July 2008 to
replace Kim.
[Id. at 9 (citing Acob Discrimination Decl. at
¶ 28).]
Mendes stated in her declaration that, during Defendant
Acob’s tenure as prosecuting attorney, she witnessed him promote
and discipline both men and women.
[Defs.’ Discrimination CSOF,
Decl. of Melinda Mendes (“Mendes Discrimination Decl.”) at ¶ 5.]
Defendants state that other DPAs and staff considered Defendant
Acob’s management style oppressive, but none believed that his
style was based on gender.
[Mem. in Supp. of Discrimination
Motion at 11-12 (quoting Defs.’ Discrimination CSOF, Decl. of
Rebecca Becker at ¶ 10; id., Decl. of Paula Heiskell at ¶ 6; id.,
Decl. of Carol Kramer (“Kramer Discrimination Decl.”) at ¶ 6;
id., Decl. of Cindy Lee (“Lee Discrimination Decl.”) at ¶ 7; id.,
Decl. of Richard Minatoya (“Minatoya Discrimination Decl.”) at
¶ 8; id., Decl. of Jerrie Sheppard (“Sheppard Discrimination
Decl.”) at ¶ 7).]
Sheppard, a close friend of Plaintiff, who
still socializes with her, felt that Defendant Acob targeted
Plaintiff and Rivera.
[Sheppard Discrimination Decl. at ¶¶ 3,
7.]
Defendants argue that Plaintiff only assumes that she
was treated differently for similar misconduct by her male
coworkers, Rivera and Kim.
Defendants emphasize that Plaintiff
admitted during her deposition that she did not know why they
4
were demoted.
[Mem. in Supp. of Discrimination Motion at 13
(citing Defs.’ Discrimination CSOF, Decl. of Cheryl Tipton
(“Tipton Discrimination Decl.”), Exh. D (excerpts of trans. of
6/22/11 depo. of Plaintiff) at 184-85).]
Defendants argue that
Kim was not disciplined for insubordination, and Plaintiff has
not identified any evidence that Kim received preferential
treatment because he was male.
Kim with a female DPA.
In fact, Defendant Acob replaced
[Id. at 13-14.]
Rivera was demoted on
February 4, 2008 because, in October 2007, he disclosed
confidential information from a management meeting to Defendant
Tate.
In February 2010, Defendant Acob terminated Rivera for
insubordination.
[Acob Discrimination Decl. at ¶ 28.]
According
to Rivera, he disagreed with what Defendant Acob was doing, and
Defendant Acob considered that insubordination.
[Tipton
Discrimination Decl., Exh. A (excerpts of trans. of 2/7/12 depo.,
vol. I, of Robert Rivera) at 8.]
Defendants argue that Defendant Acob terminated
Plaintiff for a legitimate reason - she was insubordinate in the
Sims matter.
[Mem. in Supp. of Discrimination Motion at 15.]
Defendants point out that Sims submitted a letter of resignation
in October 2008, but in December 2008 she asked to rescind her
resignation.
After a January 8, 2009 meeting he had with Sims
and Plaintiff, Defendant Acob agreed to allow Sims to continue
her employment if she agreed to improve her attendance and do her
5
work.
Sims agreed.
[Acob Discrimination Decl. at ¶¶ 21-22; id.,
Exh. O (Sims’ resignation letter).]
After that meeting and
before the unapproved May 15, 2009 absence, Sims took either sick
leave or vacation on thirteen of nineteen Friday workdays.
[Acob
Discrimination Decl. at ¶ 22.]
On May 19, 2009, Defendant Acob met with Plaintiff to
discuss Sims’s unauthorized leave and other performance issues.
Defendant Acob informed Plaintiff that he considered Sims “AWOL”
and directed Plaintiff to counsel Sims in light of her history of
attendance problems and her failure to honor her promises to
improve.
Plaintiff was resistant and expressed her disapproval,
but stated that she would talk to Sims.
that she would not write Sims up.
Plaintiff, however, said
[Acob Discrimination Decl. at
¶ 24; Tipton Discrimination Decl., Exh. R-2 (trans. of 5/19/09
meeting) at 21-25, 30.4]
At the meeting, Defendant Acob tried to
explain to Plaintiff that it was important for her to write up
her supervisees if her attempts to talk to them about an issue
failed to resolve the problems.
Exh. R-2 at 44-45.]
[Tipton Discrimination Decl.,
Defendant Acob also raised this issue in his
September 2008 performance evaluation of Plaintiff, noting that
written documentation would support formal discipline if that
4
Defendants state that, without Defendant Acob’s knowledge,
Plaintiff recorded the May 19, 2009 meeting, as well as their
meetings on April 2, 2009, and June 22 and 23, 2009. [Mem. in
Supp. of Discrimination Motion at 16 n.4; Acob Discrimination
Decl. at ¶¶ 17, 25.]
6
became necessary for the supervisee.
[Acob Discrimination Decl.
at ¶ 29; id., Exh. S (September 2008 evaluation) at 3.]
Defendants also provided testimony from others in the Department
of the Prosecuting Attorney (“the Department”) who observed
Plaintiff’s resistence to disciplining her subordinates.
[Minatoya Discrimination Decl. at ¶ 7; Sheppard Discrimination
Decl. at ¶ 13; Defs.’ Discrimination CSOF, Decl. of Peter Hanano
(“Hanano Discrimination Decl.”) at ¶ 7.]
Plaintiff drafted a memorandum documenting her informal
counseling session with Sims during which she addressed the
concerns that Defendant Acob raised.
Plaintiff and Sims signed
the memorandum and dated it June 1, 2009.
The memorandum
includes a list of the concerns Defendant Acob instructed
Plaintiff to raise with Sims, but it also includes Plaintiff’s
statement that: “As I do not feel that it is appropriate for
management to be able to restrict leave to certain days for
certain employees, I am not making a formal write-up in this
case.”
[Acob Discrimination Decl., Exh. H at 5.]
Defendant Acob
determined that Plaintiff’s actions effectively reversed the
corrective action that he instructed Plaintiff to impose upon
Sims.
[Id., Exh. J.]
Defendants therefore argue that Defendant
Acob had a legitimate, non-discriminatory reason to terminate
Plaintiff’s at-will employment.
[Mem. in Supp. of Discrimination
Motion at 19 (citing Acob Discrimination Decl. at ¶ 32).]
7
Defendants argue that there is no evidence that Defendant Acob’s
stated reason was a pretext for gender discrimination.
In fact,
when Plaintiff wrote an e-mail to the Equal Employment
Opportunity Commission (“EEOC”) investigator about amending her
charges to include a claim based on her termination, she stated
that her termination was based on retaliation and whistleblowing.
She did not mention gender discrimination.
[Id. at 19-20 (citing
Tipton Discrimination Decl., Exh. K).]
Defendants also argue that Plaintiff has not
established a prima facie case of discrimination in the terms of
her employment or a prima face case of a hostile work environment
based on gender.
Defendants emphasize that this Court has ruled
that Plaintiff cannot base her claims on time-barred incidents,
and Defendants assert that, as to each of the timely incidents,5
5
Defendants state that the timely incidents are: the
failure to name Plaintiff as the manager of the year in 2008; the
August 25, 2008 meeting regarding a picture left behind by a
former DPA; Defendant Tate’s statements to management and other
Department personnel about Plaintiff’s derogatory comments
regarding other DPAs; management’s investigation into Defendant
Tate’s report; Plaintiff’s allegation that, during a meeting
related to the investigation, management warned her that she
should be careful during her EEOC testimony because it could
negatively impact her employment; the incident involving the drug
team training led by Defendant Tate and two other DPAs;
allegations that Plaintiff was threatened with discipline for her
failure to discipline Sims; Defendant Tate’s encouraging Jura and
Murakami to file EEOC complaints against Plaintiff; Plaintiff’s
limited pay raises and lack of awards and commendations while
Defendant Acob was the County’s prosecuting attorney; the alleged
negative marks in Plaintiff’s personnel file; and Plaintiff’s
termination. [Mem. in Supp. of Discrimination Motion at 20-21.]
8
Plaintiff has failed to identify any evidence that the incident
related to Plaintiff’s gender.
Further, none of the timely
incidents constitute adverse employment actions.
[Id. at 20-21.]
Specifically, as to the manager of the year award,
Defendants argue that Plaintiff’s non-selection was not an act of
gender discrimination, as evidenced by the facts that: in 2008
both a male and a female were nominated but neither received the
award for legitimate, non-discriminatory reasons; and, in 2007
and 2009, the award went to females.
at ¶ 30.]
[Acob Discrimination Decl.
As to the August 27, 2008 meeting during the course of
the investigation into Defendant Tate’s complaint regarding
Plaintiff’s derogatory comments about Jura, Murakami, and Rivera,
Defendants emphasize that Defendant Acob was not present at that
meeting, and they deny that either Wayne Steel or Peter Hanano,
who were present, tried to influence Plaintiff’s EEOC testimony
in any way.
In fact, Plaintiff received a standard email about
such testimony, instructing her to testify truthfully.
[Acob
Discrimination Decl. at ¶ 12; Hanano Discrimination Decl. at
¶ 11; Defs.’ Discrimination CSOF, Decl. of Wayne Steel (“Steel
Discrimination Decl.”) at ¶¶ 4-5; Steel Discrimination Decl.,
Exh. T.]
As to the drug training, Defendants emphasize
Plaintiff’s inconsistent positions on this incident, and they
reiterate the evidence related to this matter which this Court
9
discussed in its prior orders.
Motion at 22-24.]
[Mem. in Supp. of Discrimination
Defendants emphasize that there is no evidence
that the scheduling of the training or the selection of the
training leaders had anything to do with Plaintiff.
[Id. at 25
(citing Acob Discrimination Decl. at ¶ 25).]
On April 2, 2009, three days after the training,
Defendant Acob met with Plaintiff to discuss her request that she
not have any further contact with Defendant Tate.
Defendant Acob
hoped that Plaintiff would move on because the internal
investigation into Defendant Tate’s complaint had been completed
about fifteen months prior, and Plaintiff had been informed that
the ultimate finding was that no discrimination occurred.
Defendant Acob explained that he wanted all DPAs to attend the
drug training so that they could benefit from the questions and
answers that came up.
In the context of Plaintiff’s request that
she not have any further contact with Defendant Tate, Defendant
Acob did tell Plaintiff that she had to “get over it,” but he
also told her that, if there were any other incidents with
Defendant Tate, she should report them to him and he would handle
them.
12.]
[Acob Discrimination Decl. at ¶ 17; id., Exh. R-1 at 8-10,
Defendants emphasize that, although the Second Amended
Complaint alleges that Defendant Acob threatened disciplinary
action against Plaintiff, including making Defendant Tate her
supervisor, the transcript of the April 2, 2009 meeting proves
10
this did not occur.
Defendant Acob merely stated that, if
Plaintiff continued to be unable to work with Defendant Tate, it
could negatively affect the work and there would be consequences.
[Mem. in Supp. of Discrimination Motion at 26-27 (citing Second
Amended Complaint at ¶¶ 58-72; Acob Discrimination Decl., Exh. R1 at 10, 29).]
As to the allegation that Defendant Tate encouraged
Jura and Murakami to file EEOC complaints against Plaintiff,
Defendant Tate denies doing so.
[Tipton Discrimination Decl.,
Exh. Y (excerpts of trans. of 7/2/12 depo. of Defendant Tate) at
107.]
As to the alleged negative marks in Plaintiff’s personnel
file, Defendants contend that the only negative marks relate to
the Sims incident, which was the basis of Plaintiff’s
termination.
[Acob Discrimination Decl. at ¶ 34.]
Defendants also argue that there is no evidence to
support Plaintiff’s allegation that the male who was promoted to
her position after her termination, Kenton Werk, was not
qualified and was promoted merely because of his gender.
Defendants point out that two males were demoted and two females
were promoted during the period in question, and Plaintiff
herself had previously acknowledged that Werk was an excellent
employee.
Defendants assert that he was promoted based on merit.
[Mem. in Supp. of Discrimination Motion at 28-29 & n.7 (citing
Acob Discrimination Decl., Exh. X at 2; Acob Discrimination Decl.
11
at ¶ 35).]
Next, Defendants argue that the timely incidents
alleged in the Second Amended Complaint are not severe or
pervasive enough to establish a hostile work environment based on
gender, and Defendants argue that Plaintiff has not identified
any physical or verbal harassment based on gender.
Thus,
Defendants contend that Plaintiff has not established a prima
facie case for a hostile work environment claim under either
federal or state law.
[Id. at 29-32.]
Finally, Defendants argue that Plaintiff has not
properly pled, and cannot prevail as a matter of law, on claims
for violations of the Fourteenth Amendment and 42 U.S.C. § 1981.
[Id. at 33.]
This Court, however, notes that the Second Amended
Complaint does not set forth such claims.
For all of these reasons, Defendants urge this Court to
“dismiss” Plaintiff’s federal and state claims for discrimination
based on gender and sexual orientation.
A.
[Id. at 34.]
Discrimination Memorandum in Opposition
In her Discrimination Memorandum in Opposition,
Plaintiff argues that many of the facts which Defendants assert
are undisputed are in fact in dispute: whether Defendant Tate
tried to influence Plaintiff’s supervision of Jura and Murakami;
whether the prosecuting attorney’s powers under the Charter of
Maui authorized Plaintiff’s termination under the facts of this
12
case; what transpired at an August 25, 2008 meeting regarding a
framed picture belonging to a former DPA which was allegedly
taken by another DPA whom Plaintiff supervised; what transpired
at an August 27, 2008 meeting regarding Defendant Tate’s
complaint about Plaintiff’s alleged derogatory statements;
whether Plaintiff’s EEOC complaint filed on July 9, 2009
contained allegations regarding sex discrimination; and whether
the salary increases Plaintiff received on July 1, 2007 and
July 1, 2008 were from Defendant Acob.
Plaintiff also argues
that defense counsel Cheryl Tipton, Esq., cannot testify that
Jura and Murakami filed EEOC complaints alleging that Plaintiff
discriminated against them because Ms. Tipton cannot be both an
advocate and a witness.
[Discrimination Mem. in Opp. at 4-6.]
Plaintiff argues that she was treated differently on
the basis of her gender.
Although Defendants assert that
Defendant Acob targeted both male and female Department employees
and Defendants emphasize that Rivera, a male, was terminated,
Plaintiff emphasizes that Rivera was not terminated for his first
insubordination offense.
Unlike Plaintiff, he was demoted first.
Rivera also testified that he believed that the stated reason for
his termination, his revealing confidential information from a
management meeting to Defendant Tate, may not have been the only
reason for his demotion.
[Id. at 8-9 (citing Pltf.’s Separate &
Concise Stat. of Material Facts in Supp. of Discrimination Mem.
13
in Opp., filed 11/5/12 (dkt. no. 195) (“Pltf.’s Discrimination
CSOF”), Decl. of Denise M. Hevicon (“Hevicon Discrimination
Decl.”), Exh. 1 at 25-26, 40).]
Defendants argue that Defendant Acob punished
insubordination and incompetence, but Defendants’ own
declarations indicate that Department employees feared unjust and
arbitrary discipline by Defendant Acob.
Discrimination Decl. ¶ 7).]
[Id. at 9 (citing Lee
Carol Kramer, Plaintiff’s secretary,
stated that she and Plaintiff were called into meetings regarding
issues that previously had not been a concern and that their
division was targeted during Defendant Acob’s administration.
Jerrie Sheppard stated that she believed Defendant Acob targeted
Plaintiff and Rivera.
[Id. (citing Kramer Discrimination Decl.;
Sheppard Discrimination Decl. at ¶ 8).]
Plaintiff notes that
Defendants did not submit a declaration by DPA Carson Tani to
support the Discrimination Motion.
Tani, a male, started with
the Department at the same time as Plaintiff.
According to
Plaintiff, he told her that Defendant Acob disciplined him twice
for insubordination and believes that his personnel file contains
the relevant records.
[Id. at 10 (citing Pltf.’s Separate &
Concise Stat. of Material Facts in Supp. of Discrimination Mem.
in Opp., filed 11/5/12 (dkt. no. 195) (“Pltf.’s Discrimination
CSOF”), Decl. of Marie J. Kosegarten (“Pltf. Discrimination
Decl.”) at ¶¶ 77-80).]
14
Plaintiff argues that the stated reason for her
termination was a pretext.
She asserts that Sims was receiving
feedback and comments that were consistent with the learning
curve of a new DPA, and Plaintiff did not think Sims was any
further behind in her duties than any other new DPA.
Plaintiff
states that she counseled Sims on numerous occasions, but it was
not feasible to prepare a Report of Conference for each instance.
Plaintiff used her judgment in counseling her subordinates and
addressed matters with Defendant Acob when necessary.
[Id. at
10-11 (citing Pltf. Discrimination Decl. at ¶¶ 46-51).]
Plaintiff states that, in 2009, Sims had serious
medical issues.
Plaintiff believes Sims was diagnosed with
diabetes and had episodes where she lost consciousness.
On
May 15, 2009, both Plaintiff and Sims were absent from work, but
Plaintiff recalls that Sims did submit a leave request form,
which Plaintiff forwarded to Defendant Acob.
know what happened to the form.
Plaintiff does not
Sims kept all of her leave forms
in a folder on her desk, but stated that the form she submitted
for May 15, 2009 had mysteriously disappeared.
[Id. at 11-12
(citing Pltf. Discrimination Decl. at ¶¶ 52-53).]
Plaintiff
asserts that, when she met with Sims to discuss Sims’s May 15,
2009 absence and the other issues that Defendant Acob identified,
Plaintiff followed every lawful instruction that he gave her.
Plaintiff, however, decided not to formally write Sims up for
15
taking vacation on May 15, 2009 and did not prohibit Sims from
taking further Friday vacation days because Plaintiff believed it
would constitute discrimination against Sims because it did not
interfere with Sims’s work or court appearances and other DPAs
did not have the same restriction.
Thus, Plaintiff argues that
her refusal to discipline Sims as instructed was not
insubordination.
[Id. at 12-14 (citing Acob Discrimination
Decl., Exh. H).]
Plaintiff next argues that she was subjected to a
hostile work environment after she refused Defendant Tate’s
requests to promote Jura and Murakami and after she complained to
management about his requests.
She asserts that she was
subjected to actions “designed to harass and alarm her for no
proper/legitimate purpose and [this] can only constitute a
hostile work environment which sought, as its goal, to make the
work place so stressful and to drive her out[.]”
[Id. at 15.]
These incidents include: a meritless investigation for an EEOC
violation arising from the complaint that she discriminated
against Jura and Murakami because she was jealous of them;6 the
6
Plaintiff asks this Court to take judicial notice of the
district judge’s Order Granting Defendants’ Motion for Summary
Judgment, filed on October 17, 2012 in Jura v. County of Maui, et
al., CV 11-00338 SOM-RLP. The district judge concluded that
Jura’s allegations did not raise a cognizable Title VII claim.
The defendants in Jura argued that the investigation of the
allegations against Plaintiff was not based on Title VII
allegations. [Discrimination Mem. in Opp. at 15-16 (citing
(continued...)
16
meeting during which Hanano and Steel questioned Plaintiff about
the whereabouts of a painting and told her that the discussion
could result in her being disciplined or terminated; the
investigation into the allegation that Plaintiff called Jura and
Murakami idiots and morons and stated that she hated Rivera;7
being forced to attend the March 2009 drug training presented by
Defendant Tate;8 and being targeted for things that previously
had not been problems.
[Id. at 15-18 (citing Pltf.
Discrimination Decl. at ¶¶ 2-10; Kramer Discrimination Decl. at
¶ 6).]
Defendants’ declarations show that Department employees
witnessed Plaintiff being “stressed, anxious and ill” during the
6
(...continued)
Hevicon Discrimination Decl., Exh. 2 at 16, 29).]
7
Plaintiff emphasizes that, at the time of this
investigation, Corporation Counsel had allegedly advised
Defendant Acob that one instance of calling a woman a lesbian or
a butch was not discrimination. Defendant Acob, however,
apparently did not consult with Corporation Counsel about whether
Plaintiff’s one-time statements about Jura, Murakami, and Rivera
constituted retaliation. Plaintiff also states that, on the same
date as her meeting with Steel and Hanano, Marr Jones and Wang
conducted a training for the Department and, when asked if this
type of comment was discriminatory, they responded that it was
not unless the comment was directed at a disabled person.
[Discrimination Mem. in Opp. at 16-17 (citing Acob Discrimination
Decl. at ¶ 9; Pltf. Discrimination Decl. at ¶ 11).]
8
Jerrie Sheppard states in her declaration that she thought
Defendant Acob would minimize Plaintiff’s contact with Defendant
Tate, and Sheppard was distressed that Plaintiff was required to
attend Defendant Tate’s drug training. Another person could have
provided the training information to Plaintiff or Plaintiff could
have reviewed the Power Point presentation. [Discrimination Mem.
in Opp. at 17 (quoting Sheppard Discrimination Decl. at ¶ 12).]
17
period in question.
[Id. at 18 (citing Kramer Discrimination
Decl. at ¶ 7; Lee Discrimination Decl. at ¶ 6).]
Thus, Plaintiff
asserts that she has identified sufficient evidence of both
pervasive behavior that she was subjected to and the harm she
suffered as a result, and therefore her claims should survive
summary judgment.
[Id. at 18.]
Finally, as to the timely incidents which Defendants
allege were not related to Plaintiff’s gender, [Mem. in Supp. of
Discrimination Motion at 20-21,] Plaintiff responds as follows.
She concedes that the following are not related to her gender and
do not support her claim for gender discrimination: the failure
to name her as manager of the year; the meeting regarding the
missing picture; the meeting about Defendant Tate’s complaint
during which Plaintiff was told that there was an investigation
against her for a management violation and that her testimony to
the EEOC could negatively impact her employment; the events
related to the drug training; the threats of discipline for her
handling of the Sims matter; her limited pay increases and lack
of awards and commendations during the period in question; and
the negative marks in her personnel file.
Plaintiff asserts that
there is a genuine dispute for the jury regarding whether
Defendant Tate’s complaint and the ensuing investigation about
derogatory comments that she allegedly made about Jura, Murakami,
and Rivera and Defendant Tate’s encouraging Jura and Murakami to
18
file EEOC complaints against Plaintiff and Plaintiff’s
termination were related to her gender.
[Discrimination Mem. in
Opp. at 18-19.]
Plaintiff therefore urges this Court to deny the
Discrimination Motion as to her gender discrimination claim.
B.
Discrimination Reply
Defendants first argue that Plaintiff has offered no
evidence of disparate treatment or animus based on gender.
Plaintiff relies on anecdotal evidence comparing herself with
other male attorneys.
Defendants argue that any differences are
merely coincidence and this Court should not consider Plaintiff’s
evidence.
Defendants argue that statistical evidence is
circumstantial and Plaintiff’s evidence was not generated by
reliable protocols, nor does her evidence show a clear pattern of
preferential treatment.
[Discrimination Reply at 1-3.]
Further,
even if this Court is inclined to consider the male employees who
Plaintiff compares herself too, Defendants contend that they were
disciplined for significantly different conduct.
Kim’s conduct was discussed supra.
Rivera’s and
Tani was disciplined for
missing a police training that he told Defendant Acob he did not
know he was scheduled to attend.
Tani also stated that he did
not believe Defendant Acob targeted women; he believed Defendant
Acob did not tolerate disagreement with his opinions.
[Id. at 3-
4 (citing Defs.’ Concise Stat. of Material Facts in Supp. of
19
Their Motion for Summary Judgment, Decl. of Carson Tani, filed
9/26/11 (dkt. no. 48-14) (“2011 Tani Decl.”)).]
Defendants also
contest Plaintiff’s argument that she was terminated for her
first offense.
They argue that the secret recordings Plaintiff
made of her meetings with Defendant Acob showed that she was
argumentative and rude when she disagreed with him and she even
accused him of setting her up.
Defendants state that he did not
discipline Plaintiff for her shortcomings as a supervisor and
instead focused their discussion on the Sims matter.
[Id. at 4
(citing Tipton Discrimination Decl., Exh. T-2 at 23).]
Defendants also argue that Plaintiff has not presented
any evidence supporting her allegation that the stated reason for
her termination was pretextual.
Even if this Court believes that
the Sims matter was not the only reason for Plaintiff’s
termination, Plaintiff cannot carry her burden of proving that
there was intentional discrimination to rebut evidence of
Defendants’ non-discriminatory purpose.
She has not presented
specific, substantial evidence of animosity toward women.
Plaintiff’s disagreement with Defendant Acob’s handling of the
Sims matter is not sufficient.
[Id. at 4-6.]
As to Plaintiff’s hostile work environment claim,
Defendants note that, in her Retaliation Memorandum in
Opposition, Plaintiff states that Count II alleges a claim for
hostile work environment based upon sexual harassment.
20
[Discrimination Reply at 6-7 (citing Retaliation Mem. in Opp. at
10).]
Defendants argue that none of the timely incidents could
be considered sexual harassment, and they reiterate that the
incidents do not even relate to gender in the first instance.
Defendants emphasize that Plaintiff conceded that the majority of
the incidents are unrelated to her gender.
The only incidents
remaining in dispute relate to: Defendant Tate’s complaint about
Plaintiff’s derogatory comments about Jura, Murakami, and Rivera;
the ensuing investigation; and Defendant Tate’s alleged
encouragement of Jura and Murakami to file EEOC complaints
against Plaintiff.
[Id. at 7.]
Defendants emphasize that Plaintiff alleges that
Defendant Tate’s alleged encouragement occurred in September
2008, but Jura filed her EEOC complaint on January 14, 2008.
Plaintiff prepared a response dated January 24, 2008 to Jura’s
and Murakami’s EEOC complaints, but it had no reference to
Defendant Tate’s alleged encouragement, nor has she identified
any evidence during this action.
[Id. at 7-8 (citing Hevicon
Discrimination Decl., Exh. 2 at 13; Defs.’ Counter-Motion for
Appointment of Discovery Master, Decl. of Cheryl Tipton, Exh. 4,
filed 3/21/12 (dkt. no. 112-6)9).]
9
Exhibit 4 is Plaintiff’s statement dated January 24, 2008
to Defendant Acob responding to Jura’s and Murakami’s EEOC
complaints.
21
Defendants argue that the investigation into Jura’s
complaint was not harassment or gender discrimination because the
County had a legitimate basis for the investigation and the
investigation resulted in a finding of no violation.
Similarly,
the investigation into Plaintiff’s alleged idiots and morons
statement also had a legitimate basis and was not enough to rise
to the level of discrimination or retaliation.
As to the drug
training, Defendants emphasize that Defendant Acob never ordered
Plaintiff to attend and he never denied any request for other
accommodations.
Further, Plaintiff did not interact with
Defendant Tate during the training, nor did she even look at him.
Thus, the training could not be an incident of sexual harassment.
Even if Plaintiff’s division was targeted, there were both males
and females in the division, and management has a legitimate
interest in addressing issues that arise in different divisions.
Even viewing the evidence in the light most favorable to
Plaintiff, she has not carried her burden of proof on her hostile
work environment claim.
[Id. at 8-11.]
Defendants argue that Plaintiff’s contact with the
alleged harassers, Defendants Acob and Tate, was sporadic at best
in 2008 and 2009, and Plaintiff does not dispute this.
The
alleged harassment therefore cannot be characterized as frequent
or severe.
Defendants also argue that there is no evidence that
the alleged harassment interfered with Plaintiff’s work.
22
[Id. at
11-12 (citing Defs.’ Discrimination CSOF at ¶¶ 20, 51, 229; id.,
Decl. of Timothy T. Tate (“Tate Discrimination Decl.”), Exh. U at
1, 10).]
Finally, Defendants argue that the issues of fact which
Plaintiff identified either relate to time-barred incidents or
are irrelevant.
[Id. at 12-13.]
Defendants therefore urge this
Court to grant the Discrimination Motion.
II.
Retaliation Motion
The underlying facts relevant to the Retaliation Motion
are essentially the same as those relevant to the Discrimination
Motion.
In particular, Defendants emphasize that, at both the
August 25, 2008 meeting regarding the missing picture and the
August 27, 2008 meeting in connection with the “idiots and
morons” investigation, Defendant Acob was not present and
Plaintiff was not disciplined in any way.
[Mem. in Supp. of
Retaliation Motion at 5 (citing Defs.’ Concise Stat. of Material
Facts in Supp. of Retaliation Motion, filed 9/26/12 (dkt. no.
185) (“Defs.’ Retaliation CSOF”), Decl. of Peter Hanano (“Hanano
Retaliation Decl.”) at ¶¶ 10-11; id., Decl. of Cheryl Tipton
(“Tipton Retaliation Decl.”), Exh. C).]
Defendants also note
that Plaintiff was not selected as the manager of the year in
2008 because she had not been properly documenting issues
regarding the employees under her supervision.
[Id. at 6 (citing
Defs.’ Retaliation CSOF, Decl. of Benjamin M. Acob (“Acob
23
Retaliation Decl.”) at ¶ 30).]
Defendants emphasize that the
Department was not required to name a manager of the year and, in
2006, prior to Defendant Acob’s tenure, no award was given.
[Id.
at 13 (some citations omitted) (citing Acob Retaliation Decl. at
¶ 30).]
Defendants point out that, when Defendant Acob
terminated Plaintiff’s employment, he was unaware that she had
filed a second EEOC complaint.
Defendants note that, during his
tenure as the County’s prosecuting attorney, Defendant Acob
decreased another DPA’s salary and never decreased Plaintiff’s
salary or otherwise disciplined Plaintiff prior to her
termination.
Further, although Plaintiff complains that she was
not promoted during his tenure, Plaintiff never applied for a
different position, nor did she request a promotion.
[Id. at 7
(citing Acob Retaliation Decl. at ¶¶ 25, 28, 32-34).]
Defendants argue that, viewing the evidence in the
light most favorable to Plaintiff, the acts she complains of were
done for legitimate, non-discriminatory reasons.
Plaintiff
reported alleged discrimination on or about October 29, 2007.
Around the same time, Defendant Tate raised concerns of
discrimination by Plaintiff.
Investigations were completed by
the end of the year and resulted in findings of no
discrimination.
[Id. at 9 (citing Second Amended Complaint at
¶¶ 29-30; Acob Retaliation Decl. at ¶ 7).]
24
As to the August 25, 2008 meeting, a former DPA under
Plaintiff’s supervision, James Masters, left behind a picture and
authorized management to donate it to the Salvation Army.
Another employee reported to Defendant Acob that she saw Sims, a
DPA under Plaintiff’s supervision, put the picture in her car.
The employee also said that she heard Plaintiff tell Sims to do
whatever she wanted.
the picture.
Hanano and Steel were directed to retrieve
Thus, Defendants argue that there was a legitimate,
non-discriminatory reason for the meeting.
[Id. at 10-11 (citing
Hanano Retaliation Decl. at ¶ 10; id., Exhs. I, J; Acob
Retaliation Decl. at ¶ 11; id., Exh. H; Tipton Retaliation Decl.,
Exh. C).]
Defendant Acob was the only person who had the
authority to discipline or terminate Plaintiff.
He did not
attend this meeting and he did not do anything to Plaintiff
because of the incident with the picture.
[Id. at 11 (citing
Tipton Retaliation Decl., Exh. K; Defs.’ Retaliation CSOF, Decl.
of David Underwood (“Underwood Retaliation Decl.”) at ¶ 4; Acob
Retaliation Decl. at ¶ 11).]
The August 27, 2008 meeting primarily dealt with the
allegation that Plaintiff referred to Jura and Murakami as idiots
and morons to DPA Tracy Jones while they were in a courtroom.
Jones reported the comments to Defendant Tate, who reported them
to management because of Jura’s and Murakami’s pending EEOC
complaints.
Management conducted an investigation to determine
25
if the allegations were true and whether Plaintiff’s comments
were retaliation for the filing of the EEOC complaints.
Defendants assert that management conducted the investigation
appropriately and confidentially and that Plaintiff did not
suffer any adverse employment action as a result.
Thus,
Defendants argue there was a legitimate, non-discriminatory
purpose for the investigation, and the investigation was not
retaliatory.
[Id. at 11-12 (citing Defs. Retaliation CSOF, Decl.
of Tracy Jones, Exh. A; id., Decl. of Timothy T. Tate (“Tate
Retaliation Decl.”) at ¶ 5; Acob Retaliation Decl. at ¶ 12; id.,
Exh. L).]
As noted in connection with the Discrimination Motion,
Defendants deny that Hanano and Steel tried to influence
Plaintiff’s EEOC testimony at the August 27, 2008 meeting.
at 12.]
[Id.
Defendants also deny that Hanano and Steel informed
Plaintiff that she was under a management investigation.
Defendants assert that all investigations are fully documented
and there is no evidence of an investigation of Plaintiff for a
management violation.
Defendants note that Defendant Acob’s
letter informing Plaintiff of the result of the investigation of
Defendant Tate’s complaint said nothing about another
investigation for a management violation.
[Id. at 12-13 (citing
Defs.’ Retaliation CSOF, Decl. of Wayne Steel (“Steel Retaliation
Decl.”) at ¶ 4; Hanano Retaliation Decl. at ¶ 11; Acob
Retaliation Decl., Exh. L).]
26
As to the April 2, 2009 meeting to discuss Plaintiff’s
request that she not have further contact with Defendant Tate,
Defendants emphasize that the meeting “occurred seven months
after the meeting on August 27, 2008; seventeen months after she
reported alleged discrimination; seven months after she provided
information to the EEOC investigator for the Jura/Murakami
charges; and six months after she had filed her own EEOC
complaint.”
[Id. at 13-14.]
Defendants emphasize that Plaintiff
now admits that she did not ask to be excused prior to the drug
training.
Further, Defendants argue that Defendant Acob never
specifically ordered Plaintiff to attend the training.
[Id. at
14 (citing Acob Retaliation Decl. at ¶ 15; Defs.’ Retaliation
CSOF, Exh. O10 at ¶ 16).]
In addition to reiterating the
description of the April 2, 2009 meeting supra and in this
Court’s prior orders, Defendants emphasize that the Report of
Conference contains no discipline for Plaintiff’s failure to
complete the drug training.
[Id. at 15.]
Defendants note that,
although a Power Point presentation was available from the
training, it did not cover the entire lecture.
In fact, one of
the presenters did not use Power Point at all.
[Id. at 15-16
(citing Tate Retaliation Decl. at ¶ 4).]
10
Defendants reiterate
Exhibit O is a copy of the Declaration of Marie J.
Kosegarten filed with Plaintiff’s Concise Statement of Facts in
Opp. to Defendants’ Motion for Summary Judgment on Aiding and
Abetting Claims, filed September 10, 2012. [Dkt. no. 174-1.]
27
that the recording of the April 2, 2009 meeting does not support
Plaintiff’s allegations about Defendant Acob’s statements and
actions during the meeting.
[Id. at 16-17 (citing Tipton
Retaliation Decl., Exh. T-1 at 10, 29).]
Defendants also argue that, prior to the April 2, 2009
meeting, Plaintiff took actions that were inconsistent with her
claim that she had told Defendant Acob that she wanted to have no
further contact with Defendant Tate.
On the September 26, 2008
acknowledgment of her performance evaluation, Plaintiff wrote
that she wanted to return to circuit court at some point.
Defendants point out that, when she made that statement,
Plaintiff knew that such a move would have increased her contact
with Defendant Tate, who worked in the circuit court division.
Thus, Defendants argue that Defendant Acob had no way of knowing
prior to the drug training that Plaintiff objected to being
around Defendant Tate.
[Id. at 17 (citing Acob Retaliation Decl.
at ¶¶ 13, 15; id., Exh. U at 3).]
Defendants argue that there is
no evidence that Defendant Acob’s denial of Plaintiff’s request
not to have contact with Defendant Tate was retaliatory.
Instead, it was for a legitimate, non-discriminatory purpose.
Plaintiff herself admitted that she never interacted with
Defendant Tate after the April 2, 2009 meeting.
[Id. at 18 &
n.10 (citing Tipton Retaliation Decl., Exh. B at 136).]
28
Plaintiff also complains that Defendant Acob retaliated
against her by questioning her vacation in May 2009.
She claims
it was improper for him to challenge whether she had advance
approval to use her vacation time because he was the one who
approved her leave request in the first instance.
[Id. at 18
(citing Tipton Retaliation Decl., Exh. B at 148, 150).]
Defendants argue that Defendant Acob’s inquiry was appropriate
because it was Hanano who approved Plaintiff’s vacation request.
Defendant Acob was unaware whether Plaintiff had properly
obtained approval.
When Defendant Acob learned of Sims’s
absence, he tried to question Plaintiff about it, but was told
Plaintiff was not in the office.
[Id. at 18-19 (citing Acob
Retaliation Decl. at ¶ 39; id., Exh. E; Hanano Retaliation Decl.
at ¶ 12).]
Defendants contend that his inquiry was not an
adverse employment action and, even if it was, there was a
legitimate, non-discriminatory purpose.
As to the May 19, 2009 meeting regarding Sims,
Defendants reiterate that Plaintiff’s recording of the meeting
does not support her claims about what Defendant Acob said and
did during the meeting.
Decl., Exh. T-2).]
[Id. at 19 (citing Tipton Retaliation
In addition to reiterating Sims’s attendance
and performance problems discussed supra, Defendants note that
Plaintiff acknowledges that Sims never requested an accommodation
for a medical condition and that there was no approved written
29
request for Sims’s leave on May 15, 2009.
[Id. at 19-21 & n.11
(citing Tipton Retaliation Decl., Exh. B at 166, 145).]
Plaintiff alleges that Defendant Acob yelled at her during this
meeting and threatened to discipline her if he was not happy with
Sims’s attendance.
[Second Amended Complaint at ¶ 83; Tipton
Retaliation Decl., Exh. N-2 at 3.]
Defendants argue that yelling
at or mildly reprimanding an employee is not an adverse
employment action.
[Mem. in Supp. of Retaliation Motion at 22.]
Defendants emphasize that Plaintiff did not in fact
counsel Sims for failing to obtain pre-approval for her May 15,
2009 leave.
[Id. (citing Acob Retaliation Decl. at ¶ 22; id.,
Exh. F at 6).]
Defendants also point out that Defendant Acob
previously counseled Plaintiff about the need to discipline her
subordinates and to prepare the associated documentation.
Plaintiff admits that she failed to counsel or discipline Jura
after Jura failed to appear at court on time and Plaintiff had to
have another DPA cover for Jura.
Plaintiff also attended a
supervisor skills training where one of the topics discussed was
documenting discipline.
[Id. at 23 (citing Acob Retaliation
Decl. at ¶ 29; Tate Retaliation Decl., Exh. U at 2; Tipton
Retaliation Decl, Exh. B at 62, 101; id., Exh. AA).]
In fact, in
Plaintiff’s EEOC interview following her first EEOC complaint,
she stated that she disagreed with Defendant Acob’s view of a
supervisor as a disciplinarian and stated that she generally
30
would not write up her subordinates.
[Id. at 24 (citing Tipton
Retaliation Decl., Exh. BB; id., Exh. CC at 2).]
Thus,
Defendants argue that the May 19, 2009 meeting had a legitimate,
non-discriminatory reason and was not retaliatory.
As to Plaintiff’s termination, Defendants state that,
according to the County’s Director of Personnel at the time,
employees who consistently take leave or are late to work may be
counseled for abusing County leave policies.
[Id. at 25 (citing
Defs.’ Retaliation CSOF, Decl. of Lynn G. Krieg (“Krieg
Retaliation Decl.”) at ¶ 7).]
Defendants also note that,
although Plaintiff alleges that Defendant Acob terminated her on
the same day he received her second EEOC charge, Defendant Acob
tried to meet with Plaintiff on June 19, 2009 and June 22, 2009.
Further, Acob denies that he knew about the charge when he
terminated Plaintiff.
Defendants state that notice of the second
EEOC charge went to the County’s counsel and the Hawai`i Civil
Rights Commission complaint went to Krieg.
[Id. (citing Tipton
Retaliation Decl. at ¶ 6; id., Exhs. T-3, DD; Acob Retaliation
Decl. at ¶ 25; Krieg Retaliation Decl. at ¶ 9).]
Thus,
Defendants argue that there was a legitimate non-discriminatory
reason for Plaintiff’s termination and her termination was not in
retaliation for filing the second EEOC charge or for reporting
other discrimination.
Further, to the extent that Plaintiff
bases her Title VII and Haw. Rev. Stat. § 378-2(2) retaliation
31
claims on any belief that restricting Sims’s leave would have
violated the Family Medical Leave Act (“FMLA”), Plaintiff’s
opposition was not to acts of discrimination in violation of
Title VII or Chapter 378, Part I.
[Id. at 25-26.]
As to Plaintiff’s allegation that Corporation Counsel’s
failure to investigate her complaint was an act of retaliation,
Defendants assert that the Corporation Counsel’s office was not
the appropriate entity to handle such an investigation.
Further,
Defendant Acob informed Plaintiff that the result of the
investigation was that neither Plaintiff’s nor Defendant Tate’s
complaints raised a violation of the County’s policy.
Further,
Plaintiff prepared and signed a memo stating that she was
satisfied with the outcome of the investigation and considered
the matter closed.
[Id. at 26-27 (citing Tipton Retaliation
Decl. at ¶ 14; Underwood Retaliation Decl. at ¶ 3; id., Exh. EE;
Acob Retaliation Decl. at ¶ 9; id., Exhs. FF, GG).]
Thus,
Defendants argue that the Corporation Counsel’s failure to
investigate Plaintiff’s complaint was not an adverse employment
action.
During her deposition, Plaintiff alleged that Defendant
Acob tried to prevent her from receiving COBRA health insurance
benefits after her termination.
According to Defendant Acob, he
was not involved in Plaintiff’s coverage.
does not administer COBRA coverage.
32
Further, the County
Defendants state that the
County signed all of the required paperwork and Plaintiff
received COBRA coverage immediately upon the end of Plaintiff’s
coverage as a County employee.
[Id. at 28 (citing Tipton
Retaliation Decl., Exh. B at 197-98; Acob Retaliation Decl. at
¶ 38; Defs.’ Retaliation CSOF, Decl. of Nicole L. Wong at ¶ 14).]
Defendants also assert that, as to her timely claims,
Plaintiff failed to use the County’s complaint procedure and this
constitutes an affirmative defense to any claims that do not
involve serious employment actions such as pay cuts, demotions,
or undesirable transfers.
Defendants therefore argue that
Plaintiff can only pursue her Title VII claims based on a lack of
pay raises and her termination.
[Id. at 29.]
Finally, Defendants argue that Plaintiff’s
whistleblowers’ claim is meritless.
Plaintiff relies upon the
same acts to support her whistleblower claim as her Title VII and
Haw. Rev. Stat. § 378-2 claims.
Insofar as all of those actions
had legitimate, non-discriminatory reasons and would have
occurred regardless of any whistleblowing, Plaintiff’s
whistleblowers’ claim also fails.
To the extent that Plaintiff
alleges that she opposed Defendant Acob’s disciplinary actions
against Sims based on the FMLA, Plaintiff admitted that Sims
never asked for an accommodation based on any health issue, and
Plaintiff has not identified any protected basis for Sims’s
leave.
Further, Sims never requested FMLA leave, and County
33
policy allows the Department head the right to control employees’
leave.
[Id. at 31-32 & n.17 (citing Tipton Retaliation Decl.,
Exh. B at 165-66; Acob Retaliation Decl. at ¶ 36; Krieg
Retaliation Decl. at ¶¶ 5-7; id., Exh. Z (Executive Order No.
2007-08 to All Department Heads from Lynn G. Krieg)11).]
Defendants therefore urge this Court to grant the
Retaliation Motion.
A.
Retaliation Memorandum in Opposition
Plaintiff moves to strike Defendants’ Exhibit C because
it is incomplete and does not bear a signature or other
identification of the sender.
Plaintiff also objects to
Ms. Tipton’s providing testimony.
Plaintiff further asserts that
Defendants’ statement that she cannot show evidence of a
management violation is an ultimate issue of fact or a conclusion
of law.
Plaintiff therefore asks this Court to strike that
statement.
[Retaliation Mem. in Opp. at 11-12.]
Plaintiff argues that the incidents Defendants
discussed in the Retaliation Motion clearly demonstrate pretext.
As to the August 25, 2008 meeting about the missing painting,
Plaintiff alleges that Hanano and Steel must have believed she
took the painting or they would have interviewed Sims instead of
Plaintiff.
Further, Plaintiff argues that there was no reason
11
The Krieg Retaliation Declaration erroneously identifies
this attachment as Exhibit H. [Krieg Retaliation Decl. at ¶ 3.]
34
for a formal conference over a painting that a former employee
had approved for donation.
[Id. at 13-14.]
Similarly, Plaintiff’s arguments regarding the other
incidents are based upon her characterization of the events which
this Court previously discussed in connection with the
Discrimination Motion and in prior orders.
Plaintiff does,
however, note that management never raised an issue about her
allegedly inadequate documentation until she complained about
Defendant Tate.
[Id. at 16 (citing Pltf.’s Separate and Concise
Stat. of Material Facts in Opp. to Retaliation Motion, filed
11/5/12 (dkt. no. 198) (“Pltf.’s Retaliation CSOF”), Decl. of
Marie J. Kosegarten (“Pltf. Retaliation Decl.”) at ¶ 19).]
As to
the April 2, 2009 meeting to discuss her failure to attend the
drug training, Plaintiff notes that Defendant Acob stated “what
you going to do if I put you there?
now, but, I mean . . . .”
Decl., Exh. T-1 at 13).]
I am not saying I will right
[Id. at 20 (quoting Tipton Retaliation
Plaintiff states that she reasonably
interpreted this as a threat of discipline, demotion, or sanction
and therefore she asserts that the April 2, 2009 meeting was a
direct threat of discipline or demotion.
[Id. (quoting Pltf.
Retaliation Decl. at ¶¶ 43, 45).]
In spite of her statement that the Second Amended
Complaint does not contain such a claim, Plaintiff asserts that
the evidence supports a claim that she was subject to a hostile
35
work environment based on retaliation.
She alleges the same
allegedly retaliatory behavior for all of her retaliation-based
claims, and she urges this Court to deny the Retaliation Motion
as to her hostile work environment claim.
[Id. at 28-31.]
Finally, Plaintiff asserts that she was a whistleblower
and that she suffered consequences as a result.
She argues that
she was subjected to conferences, investigations, a hostile
workplace, and eventually termination, after she made her
internal complaint about Defendant Tate in November 2007 through
the filing of her first EEOC complaint on October 18, 2008 and
her second EEOC Complaint on June 10, 2009.
[Id. at 31-32.]
She
alleges that the timing of these events “create[s] a strong
suspicion that Plaintiff’s termination was a result of her
outstanding complaints” and that the events prior to her
termination were pretext to set up her termination.
[Id. at 31.]
She contends that, at the very least, there is a triable issue of
fact as to whether her complaints were a motivating factor in the
decision to terminate her.
Plaintiff therefore urges this Court
to deny the Retaliation Motion as to her Hawai`i Whistleblowers’
Protection Act (“HWPA”) claim.
B.
[Id. at 32.]
Retaliation Reply
Defendants argue that most of the allegedly retaliatory
acts that Plaintiff complains of do not rise to the level of
adverse employment actions.
Thus, these cannot support a prima
36
facie case.
Where Plaintiff has identified adverse employment
actions, she has not rebutted the evidence of the County’s
legitimate, non-discriminatory reasons for the actions.
[Retaliation Reply at 1-2.]
Defendants also note that Plaintiff
has not established that the adverse actions would not have
occurred if she had not reported violations of law.
[Id. at 9-
10.]
Defendants assert that the internal complaint Plaintiff
filed in November 2007 did not trigger protection from
retaliation.
Defendants argue that only events occurring after
Plaintiff filed her first EEOC charge on October 17, 2008 can
support her retaliation claims.
[Id. at 2.]
Defendants argue that Plaintiff did not dispute
Defendants’ Retaliation CSOF No. 15, which states that Acob,
Hanano, and Steel did not imply that she should be careful about
what she said during her EEOC interviews, nor did she dispute
CSOF No. 18, which states that Acob never disciplined her prior
to her termination.
Thus, they argue that any contrary
allegations in the Second Amended Complaint should be dismissed.
[Id. at 10.]
Defendants also argue that there are
inconsistencies in her concise statement of facts in opposition
to the Retaliation Motion and that most of the facts in
Plaintiff’s concise statement are immaterial because they either
do not establish retaliatory conduct or they relate to conduct
37
that does not constitute adverse employment action.
Thus, to the
extent that there is any dispute about these issues, the dispute
is not material and does warrant denying the Retaliation Motion.
[Id. at 12-14.]
As to Plaintiff’s allegations that certain documents
were not properly authenticated, Defendants argue that those
issues are either moot or meritless.
In particular, Defendants
argue that corporation counsel is entitled to authenticate
records requested from other County agencies.
[Id. at 11-12.]
Defendants therefore argue that this Court should grant
the Retaliation Motion.
DISCUSSION
I.
Objections
Plaintiff objects to many of the statements of fact
that Defendants have identified as undisputed in their concise
statements of fact because Plaintiff contends that many of the
facts remain in dispute.
This Court emphasizes that, when
considering Defendants’ motions for summary judgment, it must
view the record in the light most favorable to Plaintiff.
See
Miller v. Glenn Miller Prods., Inc., 454 F.3d 975, 988 (9th Cir.
2006) (stating that, on a summary 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)).
38
Further, this Court can
only grant summary judgment where there are no genuine disputes
of material fact.
See Fed. R. Civ. P. 56(a).
This Court
considers Defendants’ purported undisputed facts in light of
these principles and does not rely on Defendants’
characterization of factual matters as undisputed.
As to the Retaliation Motion, Plaintiff asks this Court
to strike Defendants’ Exhibit C because it is incomplete and
insufficiently authenticated.
Defendants state that Exhibit C is
a document which Plaintiff produced in discovery.
In the
document, Plaintiff discuses, inter alia, the meetings she had
with Hanano and Steel on August 25 and 27, 2008.
[Defs.’
Retaliation CSOF, Decl. of Cheryl Tipton (“Tipton Retaliation
Decl.”) at ¶ 4.]
While Defendants are correct that their counsel
can authenticate documents received during discovery, Plaintiff
represents that the exhibit is incomplete, and this Court notes
that the text of the exhibit appears to confirm that there was
more to the document.
Thus, Exhibit C does not appear to be a
complete version of what Plaintiff produced in discovery.
This
Court therefore GRANTS Plaintiff’s request to strike Exhibit C.
Plaintiff also objects that Ms. Tipton cannot give
testimony as to the factual issues in this case.
This Court,
however, does not construe Ms. Tipton’s declarations
authenticating various documents as giving testimony regarding
the factual issues in this case.
39
Ms. Tipton has merely
identified the documents, and this Court reviews the contents of
those documents, including the representations about any disputed
factual issues, in light of the principles set forth supra.
This
Court therefore DENIES Plaintiff’s request to strike Ms. Tipton’s
declarations as improperly providing testimony regarding the
disputed factual issues in this case.
This Court now turns to the merits of the instant
motions.
II.
Discrimination Motion
A.
Count I and Count IV
First, this Court notes that Plaintiff has withdrawn
her claim of discrimination based on sexual orientation.
[Discrimination Mem. in Opp. at 1.]
This Court therefore GRANTS
the Discrimination Motion as to Count I, Plaintiff’s Title VII
claim, and Count IV, Plaintiff’s Haw. Rev. Stat. § 378-2 claim,
based on sexual orientation discrimination.
Second, the parties agree that the majority of the
timely incidents alleged in the Second Amended Complaint are
unrelated to Plaintiff’s claims of gender discrimination.
The
only incidents remaining at issue are: Defendant Tate’s complaint
that Plaintiff called Jura and Murakami idiots and morons and
that Plaintiff said she hated Rivera; the ensuing investigation
about the alleged derogatory comments; Defendant Tate’s alleged
encouragement of Jura and Murakami to file EEOC complaints
40
against Plaintiff; and Plaintiff’s termination.
[Discrimination
Mem. in Opp. at 18-19; Discrimination Reply at 7.]
This Court
therefore GRANTS the Discrimination Motion as to Plaintiff’s
Title VII and § 378-2 claims to the extent Plaintiff alleges
gender discrimination based on the other timely incidents.
This district court has stated:
To prevail on a disparate treatment claim, [the
plaintiff] must establish a prima facie case of
discrimination by showing that (1) he belongs to a
protected class, (2) he was qualified for his
position, (3) he was subject to an adverse
employment action, and (4) similarly situated
individuals outside his protected class were
treated more favorably. See Davis v. Team Elec.
Co., 520 F.3d 1080, 1089 (9th Cir. 2008). See
also McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If
he does so, the burden shifts to [the defendant]
to articulate a “legitimate, nondiscriminatory
reason for the challenged action.” See Davis, 520
F.3d at 1089. If [the defendant] satisfies his
burden, [the plaintiff] must finally show that the
“reason is pretextual either directly by
persuading the court that a discriminatory reason
more likely motivated the employer or indirectly
by showing that the employer’s proffered
explanation is unworthy of credence.” Id.
(quoting Chuang v. Univ. of Cal. Davis, 225 F.3d
1115, 1123–24 (9th Cir. 2000) (quotation marks
omitted)).
Daniels v. Donahoe, Civil No. 11–00287 SOM–BMK, 2012 WL 4739460,
at *6 (D. Hawai`i Oct. 2, 2012).
“[A] plaintiff’s burden is much less at the prima
facie stage than at the pretext stage.” Hawn v.
Exec. Jet Mgmt., Inc., 615 F.3d 1151, 1158 (9th
Cir. 2010). That is, circumstantial evidence of
pretext must be specific and substantial, Becerril
v. Pima Cnty. Assessor’s Office, 587 F.3d 1162,
1163 (9th Cir. 2009), and a plaintiff must do more
41
than merely deny the credibility of the
defendant’s proffered reason.[12] Schuler v.
Chronicle Broad. Co., 793 F.2d 1010, 1011 (9th
Cir. 1986). . . . “Direct evidence typically
consists of clearly sexist, racist, or similarly
discriminatory [or retaliatory] statements or
actions by the employer.” Coghlan [v. Am.
Seafoods Co., 413] F.3d [1090,] 1095 [(9th Cir.
2005)]. Circumstantial evidence requires an
additional inferential step to demonstrate
discrimination. Id.
Despite this “useful tool” of the McDonnell
Douglas framework, there is nothing that
“compels the parties to invoke the McDonnell
Douglas presumption.” McGinest [v. GTE Serv.
Corp.], 360 F.3d [1103,] 1122 [(9th Cir.
2004)]. “When responding to a summary
judgment motion . . . [the plaintiff] may
proceed by using the McDonnell Douglas
framework, or alternatively, may simply
produce direct or circumstantial evidence
demonstrating that a discriminatory reason
more likely than not motivated [the
employer].” Metoyer v. Chassman, 504 F.3d
919, 931 (9th Cir. 2007) (quoting McGinest,
360 F.3d at 1122). If the plaintiff submits
direct or circumstantial evidence, “a triable
issue as to the actual motivation of the
employer is created even if the evidence is
not substantial.” Id. (quoting Godwin v.
Hunt Wesson, Inc., 150 F.3d 1217, 1221 (9th
Cir. 1998)).
12
The Ninth Circuit, however, has also recognized that
any indication of discriminatory motive . . . may
suffice to raise a question that can only be
resolved by a factfinder, and for that reason
summary judgment for the defendant will ordinarily
not be appropriate on any ground relating to the
merits because the crux of a Title VII dispute is
the elusive factual question of intentional
discrimination.
Lyons v. England, 307 F.3d 1092, 1113 (9th Cir. 2002) (alteration
in Lyons) (citation and internal quotation marks omitted).
42
Hughes [v. Mayoral], 721 F. Supp. 2d [947,] 957–58
[(D. Hawai`i 2010)].
The same general framework applies for both
Plaintiff’s Title VII and Hawai`i state law
discrimination claims. See Schefke v. Reliable
Collection Agency, Ltd., 96 Hawai`i 408, 426, 32
P.3d 52, 70 (2001); Villiarimo v. Aloha Island
Air, Inc., 281 F.3d 1054, 1064 (9th Cir. 2002)
(recognizing that Hawai`i courts use the McDonnell
Douglas framework in analyzing analogous state law
claims). . . .
Nunes-Baptista v. WFM Hawaii, LLC, 2012 WL 1536075, at *3 (D.
Hawai`i Apr. 30, 2012) (some alterations in Nunes-Baptista).
Plaintiff alleges that the County discriminated against
her on the basis of her gender, a protected classification.
Although there has been some evidence regarding Defendant Acob’s
dissatisfaction with Plaintiff’s failure to document problems
with employees under her supervision, there has been no evidence
that, prior to the Sims incident that was purportedly the basis
of Plaintiff’s termination, Plaintiff was not qualified for her
position.
First, the mere fact that Defendant Tate made an
internal complaint alleging that Plaintiff made derogatory
statements about Jura, Murakami, and Rivera is not an adverse
employment action.
Defendant Tate was neither Plaintiff’s
employer nor her supervisor, and the complaint itself was not an
employment action.
Similarly, viewing the evidence in the light
most favorable to Plaintiff, there is a disputed issue of
material fact as to whether Defendant Tate encouraged Jura and
Murakami to file EEOC complaints against Plaintiff, but even if
43
this did occur, the encouragement itself was not an employment
action against Plaintiff.
This is particularly so in light of
the fact that Jura’s and Murakami’s complaints against Plaintiff
were also effectively complaints against the County.
Viewing the evidence in the light most favorable to
Plaintiff, there is a genuine issue of fact regarding whether the
investigation of Defendant Tate’s complaint, and results thereof,
constituted an adverse employment decision against Plaintiff.
Plaintiff, however, has not produced any evidence that similarly
situated individuals outside of her protected class, i.e. male
DPAs, were treated more favorably.
There is no evidence that
there were similar complaints brought against male DPAs which the
County either did not investigate, investigated less vigorously,
or dealt with less severely.
Further, as this district court has
recognized, “Title VII is not ‘a general civility code for the
American workplace.’”
Jura v. Cnty. of Maui, Civ. No. 11–00338
SOM/RLP, 2012 WL 5187845, at *7 (D. Hawai`i Oct. 17, 2012)
(quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75,
80, 118 S. Ct. 998, 140 L. Ed. 2d 201 (1998)).
Moreover,
“‘personal animosity is not the equivalent of sex
discrimination,’ and a plaintiff ‘cannot turn a personal feud
into a sex discrimination case.’”
Jura, 2012 WL 5187845, at *7
(quoting Succar v. Dade Cnty. Sch. Bd., 229 F.3d 1343, 1345 (11th
Cir. 2000)).
Even considering the evidence in the light most
44
favorable to Plaintiff and even considering the untimely
incidents as relevant background, this Court finds that the
timely incidents of alleged gender discrimination involving
Defendant Tate merely establish personal animosity and a personal
feud between Defendant Tate and Plaintiff.
This Court CONCLUDES that Plaintiff failed to establish
a prima facie case of gender discrimination by the County as to
Defendant Tate’s complaint, the investigation of that complaint,
or Defendant Tate’s encouragement of Jura’s and Murakami’s EEOC
complaints.
This Court therefore GRANTS the Discrimination
Motion as to Plaintiff’s Title VII and § 378-2 claims based on
these incidents.
The only remaining portion of Plaintiff’s
discrimination claims relate to Plaintiff’s termination.
As
previously stated, Plaintiff alleges that the County
discriminated against her because of her gender, a protected
classification.
It is undisputed that Plaintiff’s termination
constitutes an adverse employment action.
Defendants’ position
is that there was a legitimate, non-discriminatory reason for
Plaintiff’s termination - her insubordination in the Sims matter.
The incident also arguably affects the issue of whether Plaintiff
was qualified for her position.
Viewing the record in the light
most favorable to Plaintiff, however, there is at least a genuine
issue of material fact as to whether Plaintiff was qualified for
45
her position in light of her actions in connection with the Sims
matter.
Plaintiff contends that similarly situated persons
outside of her protected class, i.e. male DPAs, were treated more
favorably than she was.
She alleges that, after her termination,
the County filled her position with a male DPA who was not as
qualified as Plaintiff was.
[Second Amended Complaint at ¶ 114.]
Plaintiff, however, did not present any evidence in support of
her allegation regarding her replacement’s qualifications,13 and
this Court therefore will not consider the allegation for summary
judgment purposes.
She also alleges that male DPAs who were insubordinate
were not terminated and were subjected to lesser forms of
discipline.
Plaintiff states that Carson Tani, who began his
employment as a DPA the same year she did and who still works for
the Department, told her that Defendant Acob disciplined him
twice for insubordination.
78, 80.]
[Pltf. Discrimination Decl. at ¶¶ 77-
Plaintiff states that Tani believes there is
documentation of the insubordination in his personnel file, [id.
at ¶ 79,] but Plaintiff has not presented or otherwise identified
any supporting evidence.
Defendants submitted the 2011 Tani
13
In fact, Defendants presented testimony by Defendant Acob
that he promoted Kenton Werk to Plaintiff’s position following
her termination because of “his excellent performance and his
previous administrative experience, and not his gender.” [Acob
Discrimination Decl. at ¶ 35.]
46
Declaration which describes two incidents for which Defendant
Acob wrote Tani up for insubordination.
Tani stated that he voluntarily taught the laws of
arrest at Maui police recruit training sessions.
Once when he
was on vacation, he did not know there was a training scheduled
and therefore did not attend.
Acob wrote him up for
insubordination because he failed to schedule someone else to
provide coverage for him at the training session.
The second
write up for insubordination occurred when Tani missed a meeting.
According to Tani, he forgot about the meeting and may have been
in court at the time of the meeting, but Defendant Acob accused
him of intentionally missing the meeting.
Tani stated that he
may have been written up for one other incident of
insubordination, but he did not provide any information about the
third incident.
[2011 Tani Decl. at ¶¶ 6-7.]
Tani described the
insubordination write ups as discipline for disagreeing with
Defendant Acob, which is arguably analogous to the allegedly
unwarranted discipline imposed upon Plaintiff.
It is a close
question whether Tani’s allegedly insubordinate conduct is
sufficient to render him similarly situated to Plaintiff.
Viewing the record in the light most favorable to Plaintiff,
however, this Court finds for purposes of the instant motions
that Tani was a similarly situated individual outside of
Plaintiff’s protected class who was treated more favorably than
47
Plaintiff was treated.
Plaintiff presented Rivera’s testimony that, in 2008,14
Defendant Acob removed him from his position as circuit court
supervisor and EEOC officer to a circuit court line deputy
because he disclosed confidential information discussed at a
management meeting to Defendant Tate.
Rivera also speculated
that this was not the only reason which prompted his demotion.
[Hevicon Discrimination Decl., Exh. 1 at 25-26, 40.]
Acob eventually terminated Rivera in 2010.
Decl. at ¶ 27.]
Defendant
[Acob Discrimination
Plaintiff emphasizes that, unlike in her case,
Defendant Acob did not terminate Rivera for his first offense.
[Discrimination Mem. in Opp. at 10.]
In addition, Defendant Acob
demoted and suspended Kim for his case backlog and for failing to
inform his case team leader of changes to settlement terms.
[Acob Discrimination Decl. at ¶ 28.]
Although Defendant Acob may not have used the term
“insubordination” in connection with Rivera’s and Kim’s
demotions, viewing the record in the light most favorable to
Plaintiff for purposes of the instant motions, their conduct was
sufficiently similar to Plaintiff’s alleged insubordination to
render them similarly situated individuals outside of Plaintiff’s
protected class who were treated more favorably than Plaintiff
14
Defendant Acob states that the disclosure to Defendant
Tate occurred in October 2007. [Acob Discrimination Decl. at
¶ 28.]
48
was treated.
Although this Court acknowledges that it is a close
question, this Court FINDS that there is a triable issue of
material fact as to whether the actual motivation behind
Plaintiff’s termination was her gender.
This Court therefore
DENIES the Discrimination Motion as to the portions of
Plaintiff’s Title VII claim and § 378-2 claim for gender
discrimination in Plaintiff’s termination.
B.
Count II
Count II alleges that Plaintiff was subjected to sexual
harassment and a hostile work environment based on her gender.15
To prevail on a hostile work environment claim
under Title VII, [the plaintiff] must show that
her “workplace was permeated with discriminatory
intimidation . . . that was sufficiently severe or
pervasive to alter the conditions of her
employment and create an abusive working
environment.” Brooks v. City of San Mateo, 229
F.3d 917, 923 (9th Cir. 2000) (internal quotation
marks and citations omitted). The court examines
the totality of the circumstances to determine
whether a claimant shows that her work environment
was both subjectively and objectively abusive.
Id. “When assessing the objective portion of a
15
Although some of Plaintiff’s filings suggested that Count
III alleges a claim of hostile work environment based on
retaliation, Plaintiff ultimately confirmed that she is not
alleging such a claim. [Retaliation Mem. in Opp. at 8-9.]
Further, even without considering Plaintiff’s concession, this
Court has also reached the same conclusion based on this Court’s
review of the allegations in Count III.
To the extent that Count III alleges sexual
harassment/hostile work environment based on Plaintiff’s sexual
orientation, this Court considers the claim withdrawn,
[Discrimination Mem. in Opp. at 1,] and this Court GRANTS the
Discrimination Motion as to the portion of Count III based on
sexual orientation.
49
plaintiff’s claim, we assume the perspective of
the reasonable victim.” Id. at 924.
The Hawaii Supreme Court analyzes similar
factors in considering hostile work environment
claims brought under chapter 378. See Nelson v.
University of Hawaii, 97 Hawai`i 376, 390, 38 P.3d
95, 109 (2001). Its “analysis of whether
particular harassing conduct was severe and
pervasive is separate and distinct from the
remaining requirements of a plaintiff’s claim: it
is the harasser’s conduct which must be severe or
pervasive, not its effect on the plaintiff or the
work environment.” Aquero v. Hilton Hawaiian
Vill. LLC, 104 Hawai`i 423,431, 91 P.3d 505, 513
(2004) (internal alterations omitted) (emphasis in
original).
Jura, 2012 WL 5187845, at *6.
In evaluating Plaintiff’s hostile work environment
claim, this Court must consider “the frequency of the
discriminatory conduct; its severity; whether it is physically
threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employee’s work
performance.”
88 (1998).
Faragher v. City of Boca Raton, 524 U.S. 775, 787-
Further, “simple teasing, offhand comments, and
isolated incidents (unless extremely serious) will not amount to
discriminatory changes in the terms and conditions of
employment.”
Id. at 788 (internal quotation marks omitted).
Plaintiff alleges that Defendant Acob’s and Defendant
Tate’s conduct constituted sexual harassment and a hostile work
environment.
Viewing the record in the light most favorable to
Plaintiff, and even considering the untimely incidents as
50
relevant background, this Court finds that their conduct was not
sufficiently severe or pervasive to support Plaintiff’s claim
under either Title VII or Chapter 378.
Their conduct did not
rise beyond offhand comments and isolated incidents of personal
animosity between Plaintiff and Defendants Acob and Tate.
This
Court therefore FINDS that there are no genuine issues of
material fact as to Count II, and this Court CONCLUDES that the
County is entitled to judgment as a matter of law.
Defendants’
Discrimination Motion is GRANTED as to Count II.
III. Retaliation Motion
At the outset, this Court acknowledges that Defendants
argue in the Retaliation Motion that they have an affirmative
defense to any of Plaintiff’s claims that do not involve serious
employment actions because Plaintiff failed to use the County’s
complaint procedure.
This Court notes that such a defense may be
inapplicable because of this Court’s rulings in the 8/31/12 Order
and/or because of waiver.
This Court, however, concludes that it
is not necessary to render findings and conclusions about this
issue because of this Court’s ultimate ruling that only
Plaintiff’s retaliation claims based upon Plaintiff’s termination
survive.
A.
Count VI
Plaintiff has stated that she will stipulate to
withdraw Count VI, her defamation claim against Defendant Tate.
51
[Retaliation Mem. in Opp. at 1.]
This Court therefore GRANTS
Defendants’ Retaliation Motion as to Plaintiff’s defamation claim
and GRANTS summary judgment in favor of Defendant Tate as to
Count VI.
B.
Count III
As previously noted, with respect to Plaintiff’s
retaliation claims against the County, Title VII and Haw. Rev.
Stat. § 378-2 are analogous.
See Jura, 2012 WL 5187845, at *10
(citing Gonsalves v. Nissan Motor Co., 100 Hawai`i 149, 163, 58
P.3d 1196, 1210 (2002)).
In order for Plaintiff to establish a
prima facie case of retaliation under either state or federal
law,
she must show that: (1) she engaged in protected
activity; (2) she was thereafter subjected to an
adverse action; and (3) a causal link exists
between the protected activity and the adverse
action. See Wallis v. J.R. Simplot Co., 26 F.3d
885, 891 (9th Cir. 1994); Gonsalves v. Nissan
Motor Co., 100 Hawai`i 149, 58 P.3d 1196, 1207
(Haw. 2002). The requisite degree of proof Jura
must proffer to establish a prima facie case is
“minimal.” See Cordovo v. State Farm Ins. Cos.,
124 F.3d 1145, 1148 (9th Cir. 1997); Gonsalves, 58
P.3d at 1210.
If a plaintiff asserts a prima facie
retaliation claim, the burden shifts to the
defendant to articulate a legitimate
nondiscriminatory reason for its decision. See
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
802, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). If
the defendant articulates such a reason, the
plaintiff bears the ultimate burden of
demonstrating that the reason was merely a pretext
for a discriminatory motive. Id.
52
Id. at *11.
For the purposes of Plaintiff’s Title VII
retaliation claim, an adverse employment action is
one that “a reasonable employee would have found
. . . materially adverse, which in [the
retaliation] context means it well might have
dissuaded a reasonable worker from making or
supporting a charge of discrimination.”
Burlington N. R.R. & Santa Fe Ry. Co. v. White,
548 U.S. 53, 68, 126 S. Ct. 2405, 165 L. Ed. 2d
345 (2006). Threats may rise to the level of an
adverse employment action in a retaliation claim
if, under the particular circumstances, those
threats would have deterred a reasonable employee
from engaging in protected activity. See
Burlington, 548 U.S. at 68, 126 S. Ct. 2405;
Martin v. Gates, 2008 WL 4657807 at *10-11 (D.
Haw. Oct. 20, 2008) (finding that employee made a
prima facie claim of retaliation where employer
made threat of severe disciplinary action).
Threats sufficient to deter an employee from
engaging in protected activity may include threats
to terminate employment, reduce compensation, or
impose administrative leave. E.E.O.C. v.
Collegeville/Imagineering, 2007 WL 2051448, at *8
(D. Ariz. July 16, 2007) (concluding plaintiff put
forth prima facie evidence of material adverse
action by showing supervisor with requisite power
threatened to terminate plaintiff); Lee v. Winter,
439 F. Supp. 2d 82, 85 (D.D.C. 2006) (finding
threat of reduced compensation constitutes
materially adverse action after Burlington);
Killen v. Nw. Human Servs., Inc., 2007 WL 2684541,
at *7 (E.D. Pa. Sept. 7, 2007) (finding that the
threat of placement on administrative leave could
have dissuaded a reasonable employee from making a
discrimination claim). “A fair reading of
[Burlington] reveals that the case imposes no
requirement that a threat be fulfilled.” Walsh v.
Irvin Stern’s Costumes, 2006 WL 2380379, at *2
(E.D. Pa. Aug. 15, 2006); see also Williams v.
W.D. Sports, N.M., Inc., 497 F.3d 1079, 1090 (10th
Cir. 2007) (finding combination of threats and
actions could dissuade reasonable employee).
D’Andrea v. Univ. of Hawaii, 686 F. Supp. 2d 1079, 1088 (D.
53
Hawai`i 2010) (alterations in D’Andrea).
The timely incidents which Plaintiff bases her claims
upon are: the failure to name Plaintiff as the manager of the
year in 2008; the August 25, 2008 meeting regarding a picture
left behind by a former DPA; Defendant Tate’s statements to
management and other Department personnel about Plaintiff’s
idiots and morons comment and her comment that she hated Rivera;
management’s investigation into Defendant Tate’s report;
management’s alleged warning that Plaintiff should be careful
during her EEOC testimony because it could negatively impact her
employment; the drug team training incident; alleged threats that
Plaintiff would be disciplined for her failure to discipline
Sims; Defendant Tate’s encouraging Jura and Murakami to file EEOC
complaints against Plaintiff; Plaintiff’s limited pay raises and
lack of awards and commendations while Defendant Acob was the
County’s prosecuting attorney; the alleged negative marks in
Plaintiff’s personnel file; and Plaintiff’s termination.
Plaintiff did engage in protected activity by filing
internal complaints and EEOC charges.
This Court also finds that
there is a genuine issue of material fact as to whether Plaintiff
engaged in protected activity by refusing to impose disciplinary
actions upon Sims which Plaintiff believed were illegal and/or
discriminatory.
As previously stated, neither Defendant Tate’s
complaint regarding Plaintiff’s derogatory comments about Jura,
54
Murakami, and Rivera nor Defendant Tate’s alleged encouragement
of Jura’s and Murakami’s filing of discrimination complaints
against Plaintiff was an adverse employment action.
Further,
Plaintiff has not presented any evidence that, during the period
in question, there were raises, awards (including the manager of
the year award in 2008), and commendations that were available
and for which Plaintiff was entitled to or qualified but did not
receive because she engaged in protected activity.
This Court
also finds that Plaintiff has not established a genuine issue of
material fact regarding her claim that negative marks were placed
in her personnel file.
Defendants presented evidence that the
only negative marks in Plaintiff’s personnel file relate to the
Sims matter, for which Plaintiff was terminated.
Plaintiff
speculates that negative records did exist, but were removed.
Plaintiff, however, has not presented any evidence to support
this.
This Court also finds that Plaintiff has not established a
genuine issue of material fact regarding an adverse employment
action she suffered in connection with the August 25, 2008
meeting regarding the missing painting.
The remaining timely incidents arguably constitute
adverse employment actions.
This Court, however, finds that,
even viewing the record in the light most favorable to Plaintiff,
she has not established a genuine issue of material fact
regarding the existence of a causal link between the
55
investigation into Defendant Tate’s complaint regarding
Plaintiff’s derogatory comments and the drug training incident.
Plaintiff has put forth sufficient evidence to create a genuine
issue of material fact regarding whether there was a causal link
between the adverse actions she suffered because of the Sims
matter and her refusal to impose disciplinary actions on Sims
which Plaintiff believed were illegal or discriminatory.
Similarly, this Court also finds that Plaintiff established a
genuine issue of material fact as to the issue of pretext.
As
discussed with regard to Plaintiff’s gender discrimination claim
based on her termination, Rivera and Kim were merely demoted for
their first offenses of insubordination or similar misconduct,
and Tani was merely written up for his two insubordination
incidents.
These employees had not engaged in the protected
activity of objecting to and refusing to follow employment orders
they asserted were illegal and/or discriminatory.
This Court
therefore DENIES Defendants’ Retaliation Motion as to the
portions of Plaintiff’s Title VII claim and § 378-2 claim
alleging that Plaintiff’s termination was in retaliation for the
Sims incident.
This Court GRANTS the Retaliation Motion as to
all of the remaining portions of Plaintiff’s Title VII and § 3782 retaliation claims.16
16
To the extent that Plaintiff’s retaliation claims are
based upon any incidents which this Court has not expressly
(continued...)
56
C.
Count V
The HWPA provides that:
An employer shall not discharge, threaten, or
otherwise discriminate against an employee
regarding the employee’s compensation, terms,
conditions, location, or privileges of employment
because:
(1) The employee, or a person acting on
behalf of the employee, reports or is about to
report to the employer, or reports or is about to
report to a public body, verbally or in writing, a
violation or a suspected violation of:
(A) A law, rule, ordinance, or
regulation, adopted pursuant to law of this
State, a political subdivision of this State,
or the United States; or
(B) A contract executed by the State, a
political subdivision of the State, or the
United States,
unless the employee knows that the report is
false; or
(2) An employee is requested by a public body
to participate in an investigation, hearing, or
inquiry held by that public body, or a court
action.
Haw. Rev. Stat. § 378–62.
This district court has recognized that:
The HWPA “provides protection to employees who
report suspected violations of law from ‘any form
of retaliation by their employers.’” Crosby v.
State Dep’t of Budget & Fin., 76 Hawai`i 332, 341,
876 P.2d 1300, 1309 (1994), cert. denied, 513 U.S.
1081, 115 S. Ct. 731, 130 L. Ed. 2d 635 (1995).
16
(...continued)
discussed herein, this Court rejects those incidents as
insufficient to create a triable issue of material fact.
57
(quoting Sen. Stand. Comm. Rep. No. 1127, in 1987
Senate Journal, at 1392). Indeed, “the
legislature intended that the HWPA bar ‘discharge,
discrimination and other forms of adverse
action.’” Id. (quoting Sen. Stand. Comm. Rep. No.
833, in 1987 Senate Journal, at 1249).
Price v. Molokai General Hosp., Civil No. 09–00548 DAE–KSC, 2010
WL 715413, at *4 (D. Hawai`i Mar. 1, 2010).
Further, “‘any form
of retaliation by [] employers’ may support a charge under the
Hawaii Whistleblowers’ Protection Act.”
D’Andrea, 686 F. Supp.
2d at 1088 (quoting Crosby v. State Dept. of Budget & Fin., 76
Hawai`i 332, 341, 876 P.2d 1300, 1309 (1994) (quoting Sen. Stand.
Com. Rep. No. 1127, in 1987 Sen. Journal, at 1392))).
For the reasons set forth in connection with
Plaintiff’s retaliation claims, only Plaintiff’s claims related
to her termination for the Sims matter remain at issue.
At the
time of her termination, Plaintiff had not made any type of
report that she believed Defendant Acob directed her to impose
illegal and/or discriminatory discipline upon Sims.
Further,
there is no evidence in the record that, at the time of
Plaintiff’s termination, Defendant Acob believed that Plaintiff
was about to make such a report.
Plaintiff has therefore failed
to establish a prima facie case of a HWPA violation.
Defendants’
Retaliation Motion is GRANTED as to Count V.
D.
Aiding and Abetting Claim
In the 10/30/12 Order, this Court denied Defendant
Acob’s and Defendant Tate’s motion for summary judgment as to
58
Plaintiff’s Haw. Rev. Stat. § 378-2(3) claim in Count IV, and in
the 8/31/12 Order, this Court denied their motion for summary
judgment based on qualified immunity.
After this Court’s rulings
on the instant motions, however, the only incident which remains
at issue for trial is Plaintiff’s termination, and there is no
evidence in the record that Defendant Tate was involved in
Plaintiff’s termination.
This Court therefore GRANTS summary
judgment as to Count IV in favor of Defendant Tate.
Although there is a genuine issue of material fact as
to whether Defendant Acob’s termination of Plaintiff was
motivated by discriminatory intent, Plaintiff cannot establish
her § 378-2(3) claim based on his actions alone.
See 10/30/12
Order, 2012 WL 5381799, at *19 (citing Maizner v. Haw., Dep’t of
Educ., 405 F. Supp. 2d 1225, 1239 (D. Hawai`i 2005) (ruling that
the plaintiff failed to state a § 378-2(3) claim where he alleged
that a defendant incited, compelled, or coerced himself into
discriminatory practices because “[t]here must be at least two
persons (someone who incites, compels, or coerces, and some other
person who is incited, compelled, or coerced)”)).
The Second
Amended Complaint alleges that Defendant Tate was the person who
incited, compelled, or coerced Defendant Acob’s alleged
discriminatory actions.
Id.
Insofar as Plaintiff has failed to
establish a prima facie case for her § 378-2(3) claim against
Defendant Tate, her § 378-2(3) claim against Defendant Acob also
59
fails.
This Court therefore GRANTS summary judgment as to Count
IV in favor of Defendant Acob.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Summary Judgment on Plaintiff’s Claims of Discrimination Based on
Gender and Sexual Orientation, filed September 24, 2012, and
Defendants’ Motion for Summary Judgment on Claims of Retaliation
and Defamation, filed September 26, 2012, are HEREBY GRANTED IN
PART AND DENIED IN PART.
Defendants’ Discrimination Motion is DENIED as to the
portions Count I and Count IV, Plaintiff’s Title VII and Haw.
Rev. Stat. § 378-2 claims, alleging gender discrimination claims
based on her termination.
Defendants’ Retaliation Motion is
DENIED as to the portions Count III and Count IV, Plaintiff’s
Title VII and Haw. Rev. Stat. § 378-2 claims, based on her
termination.
The motions are GRANTED in all other respects.
In
addition, this Court GRANTS summary judgment in favor of
Defendants Acob and Tate as to the portion of Count IV alleging
Plaintiff’s § 378-2(3) claim against them.
Insofar as this Court
has granted summary judgment to Defendant Acob and Defendant Tate
on all claims against them, this Court DIRECTS the Clerk’s Office
to terminate them as parties.
The only claims remaining for trial are the portions of
Counts I, III, and IV alleging gender discrimination and
60
retaliation claims against the County based on Plaintiff’s
termination.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, February 21, 2013.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARIE J. KOSEGARTEN V. THE DEPARTMENT OF THE PROSECUTING
ATTORNEY, ET AL; CIVIL NO. 10-00321 LEK-KSC; ORDER GRANTING IN
PART AND DENYING IN PART DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT
ON PLAINTIFF’S CLAIMS OF DISCRIMINATION BASED ON GENDER AND
SEXUAL ORIENTATION AND GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT ON CLAIMS OF RETALIATION
AND DEFAMATION
61
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