Kosegarten v. The Department of the Prosecuting Attorney, County of Maui et al
Filing
58
ORDER GRANTING IN PART AND DENYING IN PART AS MOOT DEFENDANTS' 40 MOTION FOR JUDGMENT ON THE PLEADINGS ON CERTAIN CLAIMS, AND GRANTING PLAINTIFF'S REQUEST FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT: "On the basis of the foregoin g, Defendants' Motion for Judgment on the Pleadings on Certain Claims, filed August 11, 2011, is HEREBY GRANTED IN PART AND DENIED IN PART AS MOOT. The Motion is GRANTED to the extent that: Plaintiff's Haw. Rev. Stat. § 378-2(1) and (2 ) claims against Defendant Acob and Defendant Tate are DISMISSED; Count IX of the First Amended Complaint is DISMISSED; and the Court rules that the First Amended Complaint does not allege a Haw. Rev. Stat. § 378-2(3) claim. The Motion is DENIED AS MOOT in all other respects. The Court, however, GRANTS Plaintiff's request for leave to amend her complaint. Plaintiff has leave to file a Second Amended Complaint according to the terms of this order. Plaintiff must file her Second Amen ded Complaint by no later than December 21, 2011. IT IS SO ORDERED." Signed by District JUDGE LESLIE E. KOBAYASHI on November 29, 2011. (bbb, )CERTIFICATE OF SERVICEParticipants registered to receive ele ctronic 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 SOM-KSC
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
On August 11, 2011, Defendants Department of the
Prosecuting Attorney, County of Maui (“the Department”);
Benjamin M. Acob, in his individual capacity (“Defendant Acob”);
and Timothy T. Tate, in his individual capacity (“Defendant
Tate”, all collectively, “Defendants”)1 filed the instant Motion
for Judgment on the Pleadings on Certain Claims (“Motion”).
Plaintiff Marie J. Kosegarten (“Plaintiff”) filed her memorandum
1
The parties stipulated to, inter alia, “amend the caption
and the name of Defendant Department of the Prosecuting Attorney,
County of Maui to Defendant County of Maui.” [Stip. for
Dismissal With Prejudice as to Various Counts Against Defs.,
filed 11/10/11 (dkt. no. 52.) (“11/10/11 Stipulation”), at 2.]
The Court will therefore refer to Defendant County of Maui as
“Defendant County”.
The 11/10/11 Stipulation also dismissed all claims against
Defendants Acob and Tate in their official capacities. [Id.]
Thus, all of the Court’s further references to Defendants Acob
and Tate are in their individual capacities.
in opposition on October 19, 2011, and Defendants filed their
reply on October 25, 2011.
November 9, 2011.
This matter came on for hearing on
Appearing on behalf of Defendants was
Cheryl Tipton, Esq., and appearing on behalf of Plaintiffs were
Michael Green, Esq., Richard Gronna, Esq., and Caprice Itagaki,
Esq.
After the hearing, the parties submitted, and this Court
approved, a stipulation dismissing various portions of the First
Amended Complaint with prejudice, rendering part of the instant
Motion moot.
After careful consideration of the Motion,
supporting and opposing memoranda, and the arguments of counsel,
Defendants’ Motion is HEREBY GRANTED IN PART AND DENIED IN PART
AS MOOT for the reasons set forth below.
In addition,
Plaintiff’s request for leave to file a Second Amended Complaint
is HEREBY GRANTED.
BACKGROUND
Plaintiff filed the instant employment discrimination
and retaliation action on June 4, 2010.
Amended Complaint on June 23, 2010.
She filed the First
Plaintiff states that, on or
about October 17, 2008, June 10, 2009, and July 9, 2009, she
timely filed complaints with the Equal Employment Opportunity
Commission (“EEOC”) and the Hawaii Civil Rights Commission
(“HCRC”).
The EEOC and HCRC each provided a right to sue letter
for her claims.
Each letter is dated March 8, 2010.
Plaintiff
states that she sent a Notice of Claim pursuant to Haw. Rev.
Stat. § 46-72 on June 2, 2010.
Plaintiff therefore asserts that
she has met all of the conditions precedent for this action, as
required under 42 U.S.C. § 2000e.
[First Amended Complaint at
¶¶ 10-12.]
At all relevant times, Defendant Acob was the County’s
Chief Prosecuting Attorney (“County Prosecutor”) and Defendant
Tate was a County deputy prosecuting attorney (“DPA”).
[Id. at
¶¶ 7-8.]
I.
Factual Background
The Department originally hired Plaintiff as a DPA on
November 12, 1991.
Plaintiff remained in that position until she
resigned in August 1997 to relocate to the mainland.
On April 1,
2000, Plaintiff returned to Hawai`i, and the Department hired her
as a felony screening DPA.
Plaintiff was promoted to District
Court Supervisor in 2003, and she received the Department’s
Manager of the Year award in July 2003.
Plaintiff received
another promotion in 2005 and began prosecuting felony cases.
In
or around 2006, Plaintiff was one of the Judicial Selection
Commission’s finalists for a judgeship in the Second Circuit
District Court.
[Id. at ¶¶ 13-19.]
Defendant Acob became the County Prosecutor around the
end of 2006 or early 2007.
Plaintiff alleges that, in
January 2007, Defendant Acob reassigned her to the District Court
Supervisor position without reason.
[Id. at ¶¶ 20-21.]
Plaintiff alleges that, in September 2007, Defendant
Tate asked Plaintiff to do him a favor by promoting Jacki Jura, a
DPA under Plaintiff’s supervision with whom Defendant Tate was
romantically involved.
Plaintiff refused because Ms. Jura was
not qualified for a promotion, and Plaintiff reported Defendant
Tate’s request to his supervisor.
Shortly after the report,
Plaintiff learned that Defendant Tate began referring to
Plaintiff as a “lesbian” and a “butch” to the Department’s staff,
including Ms. Jura.
Plaintiff alleges that she was ridiculed and
mocked in the office as a result.
[Id. at ¶¶ 22-25.]
On October 29, 2007, Defendant Tate demanded that
Plaintiff recommend DPA Yukari Murakami, with whom he was
romantically involved at the time, for a promotion.
Plaintiff
declined because Ms. Murakami was not qualified for the
promotion.
Plaintiff told Defendant that his requests were
improper and that he should speak to Defendant Acob.
On the same
date, or closely thereafter, Plaintiff attended a management
meeting with Defendant Acob, Personnel Manager Wayne Steel, and
all of the managing DPAs.
Plaintiff reported Defendant Tate’s
demands, but no action was taken.
According to Plaintiff,
immediately after the meeting, Defendant Tate was informed about
Plaintiff’s report to the management team.
[Id. at ¶¶ 26-29.]
On or about October 30, 2007, Defendant Tate filed an
internal complaint against Plaintiff, alleging that she had
discriminated against Ms. Jura and Ms. Murakami because she was
jealous of them.
He also claimed Plaintiff had said that no
woman under her supervision would be able to have a relationship
with him.
Plaintiff alleges that Defendant Tate’s complaint
damaged her reputation as a supervisor.
The Department and
Defendant Acob investigated the complaint.
Defendant Acob spoke
with Ms. Jura and Ms. Murakami, both of whom praised Plaintiff as
a supervisor and denied that Plaintiff either discriminated
against them or treated them improperly or unfairly.
[Id. at
¶¶ 30-33.]
Defendant Tate later spread false rumors among the
Department’s staff, including Ms. Jura and Ms. Murakami, that
Plaintiff had called Ms. Jura and Ms. Murakami “idiots” and
“morons”.
On August 27, 2007,2 Mr. Steel and DPA Peter Hanano
and/or Defendant Acob threatened to discipline or terminate
Plaintiff because of the name-calling.
Sometime at the end of
2007, both Ms. Jura and Ms. Murakami were terminated.
Plaintiff
was on personal leave at the time and did not discover that they
had be terminated until she returned to work.
Both Ms. Jura and
Ms. Murakami filed HCRC/EEOC complaints claiming that Plaintiff
discriminated against them and/or treated them improperly or
unfairly.
[Id. at ¶¶ 34-38.]
On November 5, 2007, at a meeting with Mr. Steel and
Mr. Hanano, Plaintiff again complained about Defendant Tate’s
improper conduct and the office ridicule and harassment she was
experiencing as a result.
2
At the Department’s instruction,
The First Amended Complaint states “August 27, 2008,” but
this appears to be a typographical error. [First Amended
Complaint at ¶ 36.]
Plaintiff filed a written complaint on November 18, 2007.
On
December 31, 2007, Defendants informed her that they and the
Corporation Counsel investigated her complaint and concluded it
was unfounded.
Corporation Counsel, however, later told
Plaintiff that they never received her complaint and that they
were not aware of its existence.
Plaintiff provided Corporation
Counsel with a copy of her complaint, but no action was taken.
[Id. at ¶¶ 39-43.]
On or about August 14, 2008, Plaintiff learned that she
had been nominated for Manager of the Year.
Plaintiff states
that she was the only person nominated, and Defendants decided
not to present an award that year.
[Id. at ¶¶ 44-45.]
On August 25, 2008, Defendant Acob questioned Plaintiff
about a sketch of a former employee that had been posted in the
District Court building.
Plaintiff told him that she was not
aware of the incident, but Defendant Acob threatened to
discipline and/or terminate her for failing to address it.
On
August 27, 2008, Plaintiff informed Defendants that she was going
to file a formal complaint because their actions constituted
harassment and retaliation and created a hostile work
environment.
She filed EEOC Charge No. 486-2008-00510 (“EEOC
Complaint 1”) on October 15, 2008.
At around that time,
Defendant Acob and/or his staff later informed Plaintiff that
they could not find merit in Defendant Tate’s complaint against
her, but that she was also under a new investigation for a
management violation.
[Id. at ¶¶ 46-49.]
In March 2009, Defendants instructed Plaintiff to
attend Defendant Tate’s narcotics training class.
Plaintiff
requested that she be allowed to receive the training through
other means because of her history with Defendant Tate, but her
request was denied.
Plaintiff states that she had to leave the
class because she became physically ill.
She again requested
alternate training, but her request was again denied.
Plaintiff
emphasizes that Defendant Tate’s presentation was later made
available on Power Point for attorneys who could not attend the
training.
During an April 2, 2009 meeting, Plaintiff was
reprimanded for failing to attend the training class.
Defendant
Acob told her that she would be disciplined immediately unless
she maintained contact with Defendant Tate and attended his
training classes.
Defendant Acob informed Plaintiff that he was
planning to demote her and that Defendant Tate would be her
supervisor.
Plaintiff was therefore forced to interact with
Defendant Tate.
[Id. at ¶¶ 50-58.]
In May 2009, Plaintiff learned that Cynthia Sims, a DPA
under Plaintiff’s supervision, had not been at work on Friday,
May 15, 2009.
Plaintiff investigated and learned that Ms. Sims
had approved sick leave to go to O`ahu for a doctor’s
appointment.
Plaintiff was satisfied that Ms. Sims had not
violated any of the Department’s rules, but Defendant Acob later
demanded that Plaintiff take immediate disciplinary action
against Ms. Sims.
Plaintiff tried to explain that she had
verified Ms. Sims’ authorization for the leave and that Plaintiff
had proof, but Defendant Acob continued to demand that she
discipline Ms. Sims.
Plaintiff objected because Ms. Sims neither
broke a rule nor inconvenienced other attorneys.
Defendant Acob
demanded that Plaintiff impose a new rule on Ms. Sims that would
require her to have a doctor’s note each time she was sick and to
fly back to Maui to work the later half of the day after a
morning doctor’s appointment on O`ahu.
Plaintiff objected that
this was against the Department’s policies about sick leave and
that requiring Ms. Sims to fly back to Maui on a Friday afternoon
would be discriminatory and an undue hardship because Ms. Sims
lived on O`ahu on weekends.
Defendant Acob threatened Plaintiff
with disciplinary action if he was dissatisfied with Ms. Sims’s
attendance.
Plaintiff filed her second EEOC/HCRC complaint
(“EEOC Complaint 2”) on June 8, 2009, based on the harassment and
retaliation that she experienced after the filing of EEOC
Complaint 1.
[Id. at ¶¶ 60-69.]
On June 23, 2009, Plaintiff received a notice from the
EEOC that the Department and Defendant Acob had been notified
about the EEOC Complaint 2.
That day, Defendant Acob, Mr. Steel,
and Mr. Hanano presented Plaintiff with a letter officially
terminating her employment for insubordination.
Plaintiff filed
her third EEOC/HCRC complaint (“EEOC Complaint 3”) on July 9,
2009, based on the termination.
[Id. at ¶¶ 70-74.]
Plaintiff alleges that the Department and Defendant
Acob disciplined, but did not terminate, two other male
supervisors for similar misconduct.
[Id. at ¶¶ 75-80.]
Plaintiff also alleges that Defendants promoted an unqualified
male to her former position as District Court Supervisor.
at ¶¶ 81-84.]
[Id.
Plaintiff further alleges that most, if not all,
of her pay increases occurred before Defendant Acob became Chief
Prosecutor, and, although she previously received numerous awards
and commendations for her performance, she did not receive any
while Defendant Acob was Chief Prosecutor.
[Id. at ¶¶ 85-87.]
Plaintiff alleges that Defendant Acob discriminated
against her based on her sex and her sexual orientation, and that
he retailed against her for filing complaints with the EEOC/HCRC.
She also alleges that Defendants created a hostile work
environment and that their actions prevented her from practicing
her profession and denied her livelihood and other benefits.
Defendant Tate also allegedly defamed her, adversely affecting
her career and reputation.
[Id. at ¶¶ 88-91.]
The First Amended Complaint alleges the following
claims: a discrimination/wrongful termination claim against the
County and Defendant Acob under Title VII of the Civil Rights Act
of 1964 (“Count I”); a sexual harassment/hostile work environment
claim against Defendants (“Count II”); a retaliation claim
against the County and Defendant Acob (“Count III”); a
discriminatory practices claim against the County and Defendant
Acob pursuant to Haw. Rev. Stat. Chapter 378 (“Count IV”); a
Hawai`i Whistleblower’s Protection Act claim against the County
and Defendant Acob pursuant to Haw. Rev. Stat. § 378-61, et seq.
(“Count V”); a breach of fiduciary duty claim against the County
and Defendant Acob (“Count VI”); a defamation claim against
Defendant Tate (“Count VII”); an intentional infliction of
emotional distress (“IIED”) claim against Defendants (“Count
VIII”); and a claim for punitive damages (“Count IX”).
The First Amended Complaint seeks: an award of back
pay; prejudgment interest; damages for the employment benefits
she would have received if not for Defendants’ actions; special
and compensatory damages; attorneys’ fees and costs; and any
other appropriate relief.
II.
[Id. at pgs. 26-27.]
Defendants’ Motion
In the instant Motion, Defendants assert that they had
legitimate, non-discriminatory reasons to terminate Plaintiff.
According to Defendants, Plaintiff was terminated because she
failed to discipline an employee who took excessive leave during
her first year of employment with the County and because
Plaintiff undermined management’s authority by telling the
employee that management was wrong in demanding that the employee
be disciplined.
[Mem. in Supp. of Motion at 1-2.]
Defendants,
however, argue that they are entitled to judgment on the
pleadings as to some of Plaintiff’s claims, regardless of the
facts of the case.
[Id. at 4.]
Insofar as the parties’ 11/10/11 Stipulation rendered
some portions of Defendants’ Motion moot, the Court will not
discuss the parties’ arguments on those issues.
Defendants’
primary remaining argument is that Haw. Rev. Stat. § 378-2(1) and
(2) does not provide for liability on the part of individual
employees for discrimination or retaliation claims under that
chapter.
Insofar as Plaintiff’s Chapter 378 claim cannot support
liability against Defendants Acob and Tate, Plaintiff’s punitive
damages claim against them also fails.
[Id. at 5-7.]
Defendants therefore urge the Court to grant judgment
on the pleadings as to all claims alleging Chapter 378 claims
against Defendants Acob and Tate.
II.
Plaintiff’s Opposition
In her memorandum in opposition, Plaintiff argues that
the judges of this district court are split on the issue whether
there is individual liability under Haw. Rev. Stat. § 378-2(1)
and (2).
Chief United States District Judge Susan Oki Mollway
and United States District Judge David Alan Ezra have ruled that
there is no individual liability under § 378-2, except under §
378-2(3), which addresses aiding, abetting, inciting, compelling,
or coercing discrimination.3
United States District Judge J.
Michael Seabright, Senior United States District Judge Alan C.
Kay, and the late Senior United States District Judge Samuel P.
3
Plaintiff also argues that subsection (3) applies in the
instant case. [Mem. in Opp. at 5.]
King have ruled that § 378-2 does impose individual liability.
[Id. at 5-6 (citing Lum v. Kauai County Council, 2007 U.S. Dist.
LEXIS 82740, at 6 (D. Haw. Nov. 7, 2007) (citing cases)).4]
Plaintiff therefore urges this Court to examine the issue on its
own and to adopt the analysis of the judges applying individual
liability, which Plaintiff argues is more consistent with § 3782(3) and the legislative intent for Chapter 378.
[Id. at 6-8.]
Plaintiff notes that the Hawai`i Supreme Court has
never fully addressed this issue, but it has found an employee
who harassed a plaintiff jointly and severally liable for damages
arising from the harassment.
Plaintiff contends that this is a
strong indication that the Hawai`i Supreme Court would recognize
individual liability under § 378-2(1) and (2).
[Id. at 8 (citing
Steinberg v. Hoshijo, 88 Haw. 10, 19, 960 P.2d 1218, 1227
(1998)).]
Plaintiff also argues that this Court should not
interpret § 378-2 by analogizing it to Title VII because the
Hawai`i Supreme Court has recognized that federal discrimination
law is not necessarily persuasive, particularly where there are
differences in the relevant details.
Plaintiff urges the Court
to look at the plain language of § 378-2 and the logical
inferences of the chapter as a whole, which would indicate that
there is individual liability.
Plaintiff urges the Court to deny
the Motion as to the Chapter 378 claims against Defendants Acob
4
The November 7, 2007 Lum order was superceded by an
amended order dated November 9, 2007, which is available at 2007
WL 3408003.
and Tate and to allow her to conduct discovery on those claims.
[Id. at 8-9.]
Plaintiff also argues that it is undisputed that § 3782(3) allows for liability against individuals who are not
employers if they aid, abet, incite, compel, or coerce
discrimination.
[Id. at 9-10.]
Plaintiff notes that the First
Amended Complaint “claims general authority under HRS Chapter
378, [and] it is Plaintiff’s contention that Defendants ACOB and
TATE aided and abetted Defendant COUNTY in its unlawful
harassment and bullying of Plaintiff, which in part forms the
basis of this lawsuit.”
[Id. at 10-11 (citing Declaration of
Marie J. Kosegarten at ¶ 2-3).]
Thus, at the very least, the
Court must allow Plaintiff’s Chapter 378 claims to proceed
against Defendants Acob and Tate pursuant to § 378-2(3).
[Id. at
11.]
As to Plaintiff’s claim for punitive damages, Plaintiff
notes that Haw. Rev. Stat. § 378-5 allows for the pursuit of the
remedies provided in Haw. Rev. Stat. Chapter 368, and Haw. Rev.
Stat. § 368-17(a) specifically allows for punitive damages as a
remedy.
Thus, to the extent that Plaintiff’s § 378-2 claims
against Defendants Acob and Tate survive the Motion, her claim
for punitive damages against them for those violations must also
survive.
[Id. at 11-13.]
Finally, Plaintiff argues that, if this Court finds any
deficiencies in the First Amended Complaint, this Court should
allow her to amend her complaint pursuant to Fed. R. Civ. P.
15(a).
For example, Plaintiff could point to the specific
provisions of Chapter 378 that she relies on.
Plaintiff
therefore urges the Court to deny the Motion or, in the
alternative, to grant her leave to amend.
IV.
[Id. at 13-14.]
Defendants’ Reply
In their reply, Defendants argue that the law is
settled on the issue of individual liability under § 378-2(1) and
(2).
Lum, the case that Plaintiff cited, was appealed to the
Ninth Circuit, and the Ninth Circuit held that “‘there is no
individual liability under Hawaii Revised Statutes § 378-2(1)(A)
and (2).’”
[Reply at 3 (quoting Lum v. Kauai County Council, 358
Fed. Appx. 860, 2009 WL 4912393 (9th Cir. 2009), cert. denied 131
S. Ct. 200 (2010)).]
Defendants emphasize that other cases in
this district have followed the Ninth Circuit’s decision in Lum.
[Id. at 3-4 (citing Abbey v. Hawaii Employers Mut. Ins. Co., 2010
WL 1541868, *5 (D. Hawai`i Apr. 15, 2010); McNally v. University
of Hawaii, 780 F. Supp. 2d 1037, 1060 (D. Hawai`i Jan. 28, 2011);
Dowkin v. Honolulu Police Dept., 2011 WL 3882844, *7 (D. Hawai`i
Sep. 2, 2011)).]
This Court must apply the Ninth Circuit
precedent and grant the Motion as to the Chapter 378 claims
against Defendants Acob and Tate.
[Id. at 4.]
Defendants also argue that the First Amended Complaint
does not plead a claim for aiding and abetting pursuant to Haw.
Rev. Stat. § 378-2(3).
Defendants note that only Counts IV and V
allege violations of Chapter 378, and both are only against the
County and Defendant Acob.
Count IV alleges discriminatory
practices, and Count V relates to the Whistleblower’s Protection
Act.
Although Plaintiff states in her memorandum in opposition
that Counts II and III allege Chapter 378 claims, this is not
clear from the First Amended Complaint.
Count II (sexual
harassment/hostile work environment) is alleged against all
Defendants, and Count III (retaliation) is alleged against
Defendant Department and Defendant Acob.
Defendants also point
out that, in Count IV, paragraphs 114 and 115 track the language
of § 378-2(1)(A) and § 378-2(2), respectively.
Plaintiff did not
mention aiding and betting anywhere in her First Amended
Complaint.
[Id. at 4-6.]
Even considering Plaintiff’s statement in her
declaration that “it is Plaintiff’s contention that Defendants
ACOB and TATE aided and abetted Defendant COUNTY in its unlawful
harassment[,]” this does not support a claim for aiding and
abetting.
[Id. at 6-7 (citations omitted).]
Further, if
Plaintiff does not have a claim against Defendants Acob and Tate
under § 378-2(1)-(3), her punitive damages claim against them
must also be dismissed.
grant the Motion.
Defendants therefore urge the Court to
[Id. at 8.]
Finally, Defendants emphasize that the deadline to
amend pleadings in this case was July 8, 2011 and they vehemently
oppose any extensions.
[Id.]
STANDARD
Fed. R. Civ. P. 12(c) states: “After the pleadings are
closed--but early enough not to delay trial--a party may move for
judgment on the pleadings.”
[T]he standard governing the Rule 12(c) motion for
judgment on the pleadings is the same as that
governing a Rule 12(b)(6) motion. See McGlinchy
v. Shell Chemical Co., 845 F.2d 802, 810 (9th Cir.
1988); Luzon v. Atlas Ins. Agency, Inc., 284 F.
Supp. 2d 1261, 1262 (D. Haw. 2003). As a result,
a motion for judgment on the pleadings for failure
to state a claim may be granted “‘only if it is
clear that no relief could be granted under any
set of facts that could be proven consistent with
the allegations.’” McGlinchy, 845 F.2d at 810
(quoting Hishon v. King & Spalding, 467 U.S. 69,
73 (1984)); see also Dworkin v. Hustler Magazine,
Inc., 867 F.2d 1188, 1192 (9th Cir. 1989) (“The
principal difference between motions filed
pursuant to Rule 12(b) and Rule 12(c) is the time
of filing. Because the motions are functionally
identical, the same standard of review applicable
to a Rule 12(b) motion applies to its Rule 12(c)
analog.”).
Thus, “[a] judgment on the pleadings is
properly granted when, taking all allegations in
the pleading as true, the moving party is entitled
to judgment as a matter of law.” Enron Oil
Trading & Transp. Co. v. Walbrook Ins. Co., 132
F.3d 526, 528 (9th Cir. 1997) (citing McGann v.
Ernst & Young, 102 F.3d 390, 392 (9th Cir. 1996)).
“Not only must the court accept all material
allegations in the complaint as true, but the
complaint must be construed, and all doubts
resolved, in the light most favorable to the
plaintiff.” McGlinchy, 845 F.2d at 810.
As noted, to withstand a motion to dismiss, a
plaintiff must allege “enough facts to state a
claim to relief that is plausible on its face.”
[Bell Atlantic Corp. v.] Twombly, 550 U.S. [544,]
570 [(2007)]. A claim has “facial plausibility”
if the plaintiff pleads facts that allow “the
court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”
[Ashcroft v.] Iqbal, 129 S. Ct. [1937,] 1940
[(2009)]. Although the court must accept all
well-pleaded factual allegations as true,
“[t]hread-bare recitals of the elements of a cause
of action, supported by mere conclusory
statements, do not suffice.” Id. Nor must the
court “accept as true a legal conclusion couched
as a factual allegation.” Id. (quoting Twombly,
550 U.S. at 555).
Andrews v. Cnty. of Hawaii, CV. No. 10–00749 DAE–KSC, 2011 WL
4381763, at *2-3 (D. Hawai`i Sept. 20, 2011) (some alterations in
Andrews).
DISCUSSION
I.
The 11/10/11 Stipulation
The 11/10/11 Stipulation sets forth the parties’
agreement that:
the following claims are dismissed with prejudice:
1.
All claims for punitive damages against
Defendant County.
2.
Counts I, II, III and IX to the extent
Plaintiff makes claims and seeks
damages, including punitive damages,
against Defendants ACOB and TATE in
their individual capacities for
violations of Title VII.
3.
Count VI (Fiduciary Duty).
4.
All claims made against Defendants ACOB
and TATE in their official capacities.
The Parties further stipulate to amend the
caption and the name of Defendant Department of
the Prosecuting Attorney, County of Maui to
Defendant County of Maui.
[11/10/11 Stip. at 2.]
Thus, to the extent that the instant
Motion sought judgment on the pleadings as to these claims,
Defendants have already obtained the relief they sought.
The
Court therefore DENIES AS MOOT Defendants’ Motion as to all of
these issues.
The only remaining issue in the Motion is whether
Plaintiff has stated a plausible claim under Haw. Rev. Stat. §
378-2 against Defendants Acob and Tate.
II.
Individual Liability Under § 378-2(1) and (2)
Section 378-2 provides, in pertinent part:
It shall be an unlawful discriminatory practice:
(1) Because of race, sex, including gender
identity or expression, sexual orientation, age,
religion, color, ancestry, disability, marital
status, or arrest and court record:
(A) For any employer to refuse to hire
or employ or to bar or discharge from
employment, or otherwise to discriminate
against any individual in compensation or in
the terms, conditions, or privileges of
employment;
. . . .
(2) For any employer, labor organization, or
employment agency to discharge, expel, or
otherwise discriminate against any individual
because the individual has opposed any practice
forbidden by this part or has filed a complaint,
testified, or assisted in any proceeding
respecting the discriminatory practices prohibited
under this part; [and]
(3) For any person whether an employer,
employee, or not, to aid, abet, incite, compel, or
coerce the doing of any of the discriminatory
practices forbidden by this part, or to attempt to
do so[.]
Haw. Rev. Stat. § 378-1 defines “Employer” as “any person,
including the State or any of its political subdivisions and any
agent of such person, having one or more employees, but shall not
include the United States.”
As Plaintiff points out, the judges of this district
court who have addressed the issue have differed in their rulings
on whether § 378-2 imposes liability on individual employees.
At this point, Judge Ezra and this judge have
ruled that there is no individual liability under
section 378-2, except under subsection 378-2(3),
which concerns aiding, abetting, inciting,
compelling, or coercing discrimination. See,
e.g., Lavarias v. Hui O’Kakoa Security, 2006 WL
3422256 (D. Haw. Nov. 28, 2006) (Ezra, J.);
Maizner v. Haw. Dept. of Educ., 405 F. Supp. 2d
1225, 1235 (D. Haw. 2005) (Mollway, J.); White v.
Pac. Media Group, 322 F. Supp. 2d 1101, 1114 (D.
Haw. 2004) (Ezra, J); Luzon v. Atlas Ins. Agency,
284 F. Supp. 2d 1261, 1265 (D. Haw. 2003)
(Mollway, J.); Mukaida v. Hawaii, 159 F. Supp. 2d
1211, 1226 (D. Haw. 2001) (Mollway, J.). But see
Black v. Correa, 2007 WL 3195122, *18 (D. Haw.
Oct. 30, 2007) (Ezra, J.) (finding individual
liability under section 378-62, while not
revisiting rulings regarding section 378-2).
Judges J. Michael Seabright, Alan C. Kay, and
Samuel P. King have determined that section 378-2
does indeed impose individual liability. See,
e.g., Hale v. Haw. Publ’ns, Inc., 468 F. Supp. 2d
1210, 1229 (D. Haw. 2006) (Kay, J.); Sherez v.
State of Haw. Dep’t of Educ., 396 F. Supp. 2d
1138, 1145 (D. Haw. 2005) (Seabright, J.); Black
v. City & County of Honolulu, 112 F. Supp. 2d
1041, 1056-57 (D. Haw. 2000) (King, J.); accord
U.S. ex rel. Lockyer v. Haw. Pac. Health, 490 F.
Supp. 2d 1062, 1087 (D. Haw. 2007) (Kay, J.)
(applying the same reasoning to a Whistleblower’s
Protection Act claim under Haw. Rev. Stat. §
378-62 to find individual liability).
A split with her colleagues guarantees that
this judge fully revisits the issue each time it
comes up in her cases. Despite her great respect
for the colleagues who differ with her, this judge
adheres to the reasoning in Lavarias, Maizner,
White, Luzon, and Mukaida . . . .
Lum v. Kauai Cnty. Council, Civ. No. 06-00068 SOM/LEK, 2007 WL
3408003, at *3 (D. Hawai`i Nov. 9, 2007) (Mollway, J.).
Judge Mollway noted that “[t]he disagreement among the
judges in this district centers around whether an individual is
an ‘employer.’”
Id. at *4.
Judge Mollway summarized the
analyses in the orders addressing the issue, beginning with Judge
King’s 2000 order in Black.
Id. at *4-7.
In particular, this
Court emphasizes the following portions of that summary:
[I]f called upon to decide the issue, Hawaii
appellate courts would likely follow the
federal courts’ reasoning in Title VII cases
and rule that, under Chapter 378, unless an
individual actually employs someone, the
individual cannot be liable for quid pro quo
harassment or hostile work environment
discrimination because the individual is not
an “employer.”
Mukaida, 159 F. Supp. 2d at 1227. . . .
. . . .
. . . As Judge Ezra put it, “[T]he [Hawaii]
legislature intended to include employees as
personally liable pursuant to § 378-2(3) [the
aiding and abetting provision], and not personally
liable for a violation of the statute in general.”
White, 322 F. Supp. 2d at 1114. White agreed with
this judge’s analysis in Luzon that the Hawaii
legislature, had it intended that individuals be
liable under section 378-2(1) or section 378-2(2),
could have easily said so:
Throughout Chapter 378, the legislature has
described which behavior, when committed by
an “employer,” “employment agency,” or “labor
organization,” constitutes an unlawful
discriminatory practice. Only in Section
378-2(3) did the legislature include the
broad reference to “any person whether an
employer, employee, or not” as being liable
for the specific action of aiding, abetting,
inciting, compelling, or coercing
discriminatory actions. H.R.S. Chapter 378.
As the court stated in Luzon, the legislature
“clearly knew how to include employees within
a statute’s scope” and its failure to do so
explicitly throughout the statute suggests
that employees are only held liable for
infractions of § 378-2(3). 284 F. Supp. 2d
at 1265 n.1.
White, 322 F. Supp. 2d at 1114. Notably, Judge
Ezra was not persuaded that the individual
defendant in White, who was the plaintiff’s
supervisor, should be subjected to individual
liability just because he was in a managerial
position. Id. at 1114. . . .
. . . .
. . . In Maizner, 405 F. Supp. 2d at 1235-37,
this judge studied the grammar of the definition
of “employer” set forth in section 378-1,
concluding, contrary to Sherez, that the
definition of “employer” did not impose individual
liability under section 378-2(1) or section
378-2(2). This judge reasoned that the
participial phrase “having one or more employees”
in section 378-1 restrictively modified “any
person” such that the definition of “employer”
could not be read to include individuals who did
not have employees.
Id. at *4-5 (some alterations in Lum).
Further, Judge Mollway noted:
Nothing in the definition of “employer” in section
378-1 or its legislative history indicates that
the term “employer” was intended to include
individuals who do not employ others. To be an
“employer” as defined in section 378-1, an “agent”
must have “one or more employees.” See Maizner,
405 F. Supp. 2d 1225 at 1235-37.
The legislative history of section 378-2 does
not countermand the statutory definition. As
Judge Kay notes in Hale, “employer” was originally
defined as “any person having one or more persons
in his employment, and includes any person acting
as an agent of an employer, directly or
indirectly.” Judge Kay concluded that this
original definition of “employer” supports the
proposition that an “employee” may be liable as an
“agent” of the employer. Hale, 468 F. Supp. 2d at
1228. This judge submits that such a reading
would distort the statutory language.
Id. at *8.
Judge Mollway also rejected the rule imposing
liability on individual employees as agents of the employer
because to adopt such a rule would effectively be judicial
legislation and there was no state case law addressing individual
liability under § 378-2(1) and (2).5
5
Id. at *10-11.
This Court notes that there is still no Hawai`i state case
(continued...)
As Defendants have pointed out, in Lum’s appeal to the
Ninth Circuit, that court stated “there is no individual
liability under Hawaii Revised Statutes § 378-2(1)(A) and (2).
We agree with the district court’s analysis of the Hawaii
statute’s language, particularly in light of its parallels to
Title VII.”
Lum v. Kauai Cnty. Council, 358 Fed. Appx. 860, 862
(9th Cir. 2009) (emphasis added), cert. denied, 131 S. Ct. 200
(2010).
As an unpublished decision, the Ninth Circuit’s decision
in Lum is not binding precedent.
See Ninth Cir. Rule 36–3
(permitting citation of unpublished decisions issued after
January 1, 2007, but stating that such decisions are not
binding).
District courts within the Ninth Circuit, however,
have often recognized that unpublished Ninth Circuit decisions
are persuasive as indications of how the Ninth Circuit applies
binding precedent.
See, e.g., Mack v. Hernandez, Civil No.
09-1700 JLS (AJB), 2010 WL 2487613, at *11 n.6 (S.D. Cal. May 6,
2010); Bjorlin v. Hubbard, No. CIV S-09-1793 GEB GGH P, 2010 WL
1689442, at *10 n.17 (E.D. Cal. Apr. 26, 2010); Nuh Nhuoc Loi v.
Scribner, 671 F. Supp. 2d 1189, 1202 (S.D. Cal. 2009).
This
Court also notes that none of the judges in this district who
ruled, prior to the Ninth Circuit’s decision in Lum, that there
is individual liability under § 378-2(1) and (2) have had
occasion to revisit the issue since the Ninth Circuit’s ruling.
5
(...continued)
law squarely addressing this issue.
More importantly, however, this Court agrees with Judge
Mollway’s analysis in Lum regarding the definition of the term
“employer” in § 378-2(1) and (2).
This Court therefore CONCLUDES
that an individual employee, even if he is a supervisor, cannot
be held individually liable under Haw. Rev. Stat. § 378-2(1) and
(2) unless he himself has one or more employees.
In the present
case, Plaintiff has not alleged that either Defendant Acob or
Defendant Tate individually has one or more employees, and the
Court FINDS that neither is an “employer” for purposes of Haw.
Rev. Stat. § 378-2(1) and (2).
Plaintiff therefore cannot
maintain a claim under § 378-2(1) and (2) against either
Defendant Acob or Defendant Tate.
Defendants’ Motion is GRANTED as to Plaintiff’s claims
against Defendants Acob and Tate under Haw. Rev. Stat. § 378-2(1)
and (2), which are DISMISSED.
III. Whether Plaintiff Alleged Claims Under § 378-2(3)
Plaintiff also asserts that she has stated a claim
against Defendants Acob and Tate for aiding and abetting
discrimination in violation of Haw. Rev. Stat. § 378-2(3), which
expressly provides for individual liability against employees.
Plaintiff argues that this Court must allow her § 378-2(3) claim
to go forward.
Defendants argue that Plaintiff did not plead a
§ 378-2(3) claim in the First Amended Complaint.
This Court
agrees.
The only counts in the First Amended Complaint that
expressly invoke Hawai`i state law are Courts IV and V.
Count V
alleges a claim under the Hawai`i Whistleblower’s Protection Act,
Haw. Rev. Stat. § 378-61, et seq., and therefore does not
constitute a claim for violations of § 378-2(3).
Count IV
alleges a “Discriminatory Practices” claim under “Haw. Rev. Stat.
Chap. 378” against the County and Defendant Acob.
Complaint at pg. 21.]
[First Amended
First, Plaintiff did not allege Count IV
against Defendant Tate and therefore Count IV clearly cannot
support Plaintiff’s position that she has pled a § 378-2(3) claim
against Defendant Tate.
Further, as noted by Defendants, the
allegations of Count IV track the language of § 378-2(1) and (2),
compare First Amended Complaint at ¶ 114 with Haw. Rev. Stat.
§ 378-2(1)(A), and First Amended Complaint at ¶ 115 with § 3782(2),6 and Plaintiff does not mention aiding and abetting in
Count IV.
Plaintiff also alleges discrimination or retaliation
claims in Counts I, II, and III.
6
Count I, however, expressly
The First Amended Complaint states, in pertinent part:
114. Defendant Department and Defendant Acob,
their agents and employees, engaged in
discriminatory acts and practices against
Plaintiff in the terms, conditions, or privileges
of her employment.
115. Defendant Department and Defendant Acob
did so, on the basis of, and because of
Plaintiff’s sex and sexual orientation, and
because Plaintiff opposed their illegal practices
and filed a complaint, testified, or assisted in
proceedings respecting the discriminatory
practices prohibited under the law.
[First Amended Complaint at pgs. 21-22.]
alleges a Title VII claim and therefore cannot support a § 3782(3) claim.
Count II alleges a “Sexual Harassment/Hostile
Environment” claim against all Defendants.
Complaint at pg. 19.]
[First Amended
It refers generally to “violation of the
law prohibiting sexual harassment/hostile work environment”
without specifying what specific law Plaintiff relies on.
at ¶ 106.]
[Id.
Count III alleges a “Retaliation” claim against the
County and Defendant Acob.
[Id. at pg. 20.]
It therefore does
not allege a § 378-2(3) claim against Defendant Tate.
As with
Count II, Count III does not specify which specific law Plaintiff
relies upon.
[Id. at ¶ 112.]
Under Fed. R. Civ. P. 8(a)(2), a complaint must
include, inter alia, “a short and plain statement of the claim
showing that the pleader is entitled to relief[.]”
The
statement, however, must be sufficient to “to give the defendant
fair notice of what the . . . claim is and the grounds upon which
it rests.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555
(2007) (citation and quotation marks omitted) (alteration in
original).
Although Counts II, III, and IV can arguably be
construed as alleging § 378-2 claims against the defendants
identified therein, none of those counts uses the term “aiding
and abetting”, nor do the allegations of those counts make it
clear that Plaintiff is alleging an aiding and abetting claim.
The First Amended Complaint did not give Defendants sufficient
notice that Plaintiff was alleging an aiding and abetting claim
pursuant to § 378-2(3).
The Court therefore CONCLUDES that there
is no § 378-2(3) claim in the First Amended Complaint.
Defendants’ Motion is GRANTED to the extent that it seeks a
ruling that Plaintiff has not alleged a Haw. Rev. Stat. § 3782(3) claim in the First Amended Complaint.
IV.
Leave to Amend
Plaintiff seeks leave of court to file a Second Amended
Complaint clarifying the “specific provisions of Chapter 378
which Plaintiff alleges are applicable in this case[.]”
[Mem. in
Opp. at 14.]
The deadline to add parties and amend pleadings in this
case has passed.
Plaintiff must therefore obtain an amendment of
the scheduling order to amend her complaint.
A scheduling order
“may be modified only for good cause and with the judge’s
consent.”
Fed. R. Civ. P. 16(b)(4).
If the Court grants an
amendment of the scheduling order, under Fed. R. Civ. P.
15(a)(2), “[t]he court should freely give leave when justice so
requires.”
Courts may consider factors such as: bad faith or
dilatory motive on the movant’s part; whether the amendment will
cause undue delay; whether it will prejudice the opposing party;
futility of the amendment; and whether the movant has already
failed to cure deficiencies in prior amendments of her pleadings.
Foman v. Davis, 371 U.S. 178, 182 (1962); In re Morris, 363 F.3d
891, 894 (9th Cir. 2004).
Not all of these factors carry equal
weight; prejudice to the opposing party is the most persuasive
factor.
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048,
1052 (9th Cir. 2003) (citation omitted).
In light of the lack of binding authority on the issue
whether Haw. Rev. Stat. § 378-2(1) and (2) imposes liability on
individual employees, Plaintiff took a good faith (although
ultimately incorrect) position that she alleged actionable § 3782 claims against Defendants Acob and Tate.
If Plaintiff had been
correct, a § 378-2(3) would have arguably been unnecessary.
This
Court therefore FINDS that the dismissal of Plaintiff’s § 3782(1) and (2) claims constitutes good cause to amend the
scheduling order and that there was no bad faith or dilatory
motive in Plaintiff’s failure allege a § 378-2(3) claim in the
First Amended Complaint.
Further, allowing Plaintiff to amend
her complaint to allege a § 378-2(3) will not unduly delay this
case, and any prejudice to Defendants can be minimized by
adjusting the deadlines in the scheduling order.
Finally, the
Court finds that the § 378-2(3) claim is not futile.
The factual
allegations in the First Amended Complaint are compelling,
particularly in light of the fact that the individual employees
at issue are attorneys sworn to act in the public interest.
The
Court therefore GRANTS Plaintiff leave to amend her complaint to
add a claim against Defendant Acob and Defendant Tate pursuant to
Haw. Rev. Stat. § 378-2(3).
Plaintiff must file her Second Amended Complaint by
December 21, 2011.
The Court emphasizes that the leave granted
Plaintiff is limited to the addition of the § 378-2(3) claim and
to the incorporation of the terms of the 11/10/11 Stipulation.
Plaintiff may not add any new parties, any new legal theories, or
any other new claims.
The Court CAUTIONS Plaintiff and her
counsel that the failure to comply with the terms of this order
may result in sanctions, including, but not limited to, the
dismissal of the § 378-2(3) claim.
V.
Punitive Damages
Defendants argued that, insofar as Plaintiff did not
have a claim against Defendants Acob and Tate under Haw. Rev.
Stat. § 378-2, the Court must also dismiss Plaintiff’s claim for
punitive damages.
The Court GRANTS Defendants’ Motion to the extent that
the Court DISMISSES Count IX, Plaintiff’s claim for punitive
damages, because punitive damages are not an independent cause of
action.
Punitive damages are a remedy which is “incidental to a
separate cause of action[.]”
United States ex rel. Lockyer v.
Hawaii Pac. Health, 490 F. Supp. 2d 1062, 1089 (D. Hawai`i 2007)
(citing Ross v. Stouffer Hotel Co., 76 Hawai`i 454, 466, 879 P.2d
1037, 1049 (Haw. 1994)).
The Court, however, notes that punitive damages may
still be available to Plaintiff as a remedy, particularly in
light of the fact that the Court has given Plaintiff leave to add
a § 378-2(3) claim against Defendants Acob and Tate.
Rev. Stat. §§ 378-5(a), 368-17(a).
See Haw.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Judgment on the Pleadings on Certain Claims, filed August 11,
2011, is HEREBY GRANTED IN PART AND DENIED IN PART AS MOOT.
The
Motion is GRANTED to the extent that: Plaintiff’s Haw. Rev. Stat.
§ 378-2(1) and (2) claims against Defendant Acob and Defendant
Tate are DISMISSED; Count IX of the First Amended Complaint is
DISMISSED; and the Court rules that the First Amended Complaint
does not allege a Haw. Rev. Stat. § 378-2(3) claim.
The Motion
is DENIED AS MOOT in all other respects.
The Court, however, GRANTS Plaintiff’s request for
leave to amend her complaint.
Plaintiff has leave to file a
Second Amended Complaint according to the terms of this order.
Plaintiff must file her Second Amended Complaint by no later than
December 21, 2011.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, November 29, 2011.
/S/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
MARIE J. KOSEGARTEN V. THE DEPARTMENT OF THE PROSECUTING
ATTORNEY, ET AL; 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
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