Kepilino v. State of Hawaii, Department of Transporation et al

Filing 64

ORDER GRANTING IN PART, DENYING IN PART, AND STAYING IN PART, DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS re 46 - Signed by CHIEF JUDGE SUSAN OKI MOLLWAY on 6/19/13. "The court GRANTS IN PART, DENIES IN PART, an d STAYS IN PART Defendants' Motion for Judgment on the Pleadings. Judgment on the pleadings is granted to the HDOT and Okimoto on the ADA claim in Count I. Count II (Title VII retaliation) may proceed only against the HDOT, and is otherwis e dismissed. Counts III (Equal Protection Clause) and VI (ADA retaliation) are dismissed in their entirety. Counts IV and V (section 378-2) are dismissed to the extent the claims are brought against the HDOT. The portions of Counts IV and V brou ght against Dau and Livermore in their individual capacities are stayed pending the outcome of Lales. In summary, this order leaves for further adjudication the portion of Count II against the HDOT that asserts Title VII retaliation relating to Kepilino's testimony on behalf of another Title VII complainant, while staying Counts IV and V (section 378-2 claims) against Dau and Livermore. The parties are directed to inform this court promptly upon the Hawaii Supreme Courts issuance of a decision in Lales." (emt, )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
)
)
Plaintiff,
)
)
vs.
)
)
)
STATE OF HAWAII, DEPARTMENT
OF TRANSPORTATION; GLENN
)
)
OKIMOTO in his Official
Capacity; RICHARD LIVERMORE
)
)
in his Official and
Individual Capacity; LISA DAU )
)
in her Official and
Individual Capacity; and JOHN )
DOES 1-5; JANE DOES 1-5; DOE )
Government Agencies 1-5, DOE )
)
Corporations 1-10,
)
)
Defendants.
_____________________________ )
JESSICA L. KEPILINO,

CIVIL NO. 12-00066 SOM-BMK
ORDER GRANTING IN PART,
DENYING IN PART, AND STAYING
IN PART, DEFENDANTS’ MOTION
FOR JUDGMENT ON THE PLEADINGS

ORDER GRANTING IN PART, DENYING IN PART, AND STAYING IN PART,
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
I.

INTRODUCTION.
Plaintiff Jessica Kepilino sues her employer, Defendant

State of Hawaii Department of Transportation (“HDOT”), HDOT
Director Glenn Okimoto, supervisor Richard Livermore, and
supervisor Lisa Dau (collectively, “Defendants”) for alleged
employment discrimination and retaliation in violation of the
Americans with Disabilities Act (“ADA”), Title VII of the Civil
Rights Act, the Equal Protection Clause, and section 378-2 of
Hawaii Revised Statutes.

Defendants now move for judgment on the pleadings.
ECF No. 44 (the “Motion”).

See

The court GRANTS IN PART, STAYS IN

PART, and DENIES IN PART the Motion.
II.

BACKGROUND.
The HDOT hired Kepilino in 1998.

On September 1, 2000,

Kepilino began working as an Office Assistant in the Business
Management Office of the HDOT Administration Division, reporting
to Livermore and Dau.

Kepilino’s claims of discrimination and

retaliation arise out of acts that allegedly occurred during her
tenure as an Office Assistant.
In November 2007, Kepilino developed “a work-related
injury” (apparently carpal tunnel syndrome) and requested “light
duty” work.

See EEOC Charge No. 486-2009-00137, attached as

Exhibit “E” to ECF No. 53; Second Amended Complaint (“SAC”) ¶ 23.
Kepilino states that she was intermittently restricted to light
duty work, as requested, and that she was able to perform a
majority of her Office Assistant duties.

SAC ¶ 23.

In October 2008, Kepilino began meeting with the HDOT
Office of Civil Rights (“OCR”).

Id. ¶ 25.

She alleges that she

began to notice a “change in attitude toward her” around the time
of the first meeting.

Id.

Elizabeth-Ann Motoyama, an HDOT OCR

officer, allegedly told Kepilino that Dau paid visits to the HDOT
OCR for the purpose of intimidating staffers in the OCR.

2

Id.

On or around December 19, 2008, Kepilino met with
Motoyama, at Motoyama’s request, to document her complaints about
how the HDOT was treating her.

Id. ¶ 26.

On or around December

26, 2008, Motoyama allegedly informed Kepilino that Melanie
Martin, the Acting Manager of the HDOT OCR, had asked Motoyama to
close Kepilino’s complaint without an investigation.

Id.

Martin

then allegedly “[took] away” Kepilino’s written allegations.

Id.

Kepilino states that she never received any results from the OCR
investigation.

Id.

Between January 5, 2009, and June 26, 2009, Kepilino
took a Total Temporary Disability leave of absence for surgery on
both arms to treat carpal tunnel syndrome.

Id. ¶ 27.

On March 19, 2009, Kepilino filed a Charge of
Discrimination with the Equal Employment Opportunity Commission
(“EEOC”), EEOC Charge No. 486-2009-00137, alleging that the HDOT
had discriminated against her based on her disability from
November 1, 2007, to January 9, 2009.
ECF No. 53; SAC ¶ 28.

Exhibit “E” attached to

The charge, which indicated that it was

simultaneously being submitted to the Hawaii Civil Rights
Commission, stated:
In November 2007, I developed a work-related
injury which resulted in disability.
Beginning in November 2007, I requested
reasonable accommodation from my supervisor,
Richard Livermore. However, he did not take
any action to address my requests and
doctor’s notes.
3

In May 2008, I began to be subjected to ongoing harassment by my other manager, Lisa
Dau, and other co-workers. For instance, I
was scrutinized for coming in to work late.
I was given work assignments from Accountants
who are not my supervisors. My disability
was discussed among co-workers.
In July 2008, I was transferred from one
cubicle to another.
. . . .
Retaliation for meeting with the Office of
Civil Rights - EEOC Officer Elizabeth
Motoyama. (negative comments - “I am a
problem”, “I am a problem child”, announcing
my injury for others to hear, etc.)
Intimidation from the department head Lisa
Dau, “Francis Keeno (Deputy Director) will be
watching me.”
Breach of Confidentiality towards my injury
(mocking and violating disclosure of private
information.)
Exhibit “E” attached to ECF No. 53.
In June 2009, the HDOT allegedly informed Kepilino that
she was prohibited from returning to her Office Assistant
position, and that the Personnel Office would attempt to find an
alternative light duty position for her.

SAC ¶ 29.

On or around

July 10, 2009, Eleanor Young, Personnel Officer, sent Kepilino a
letter stating that she was assigned to Pearl Ridge Elementary
School for light duty.

SAC ¶ 30. Her tasks included tutoring

Special Education students, which Kepilino asserts she was
neither trained nor qualified to do.

4

Id.

On July 6, 2009, Kepilino filed EEOC Charge No. 4862009-00392, covering the period from June 18 to 21, 2009.
Exhibit “F” attached to ECF No. 53.

See

This charge stated:

I filed an EEOC Charge in March 2009.
Respondent is aware of my disability. I went
on disability leave on January 7, 2009.
On June 18, 2009, my doctor faxed a return to
work with restrictions note (effective June
29, 2009) to Respondent.
On June 21, 2009, I spoke to Sandra Tomimoto,
HR Worker’s Compensation Claims Processor,
who informed me that I could not return to
work because Lisa Dau, Branch Manager, could
not accommodate my restrictions.
On this same date, I also received a phone
call from Eleanor Young, Personnel Officer,
who informed me that I could not return to
work because I am unable to fulfill my duties
and Respondent was not able to accommodate my
restrictions.
Id.
On June 16, 2011, the EEOC issued Kepilino Notices of
Right to Sue for EEOC Charge Nos. 486-2009-00137 and 486-200900392.

See Exhibits “E” and “F” attached to ECF No. 53.

Both

notices stated, “You may file a lawsuit against the respondent(s)
under federal law based on this charge in federal or state court.
Your lawsuit must be filed WITHIN 90 DAYS of your receipt of this
notice; or your right to sue based on this charge will be lost.”
Id. (emphasis in original).
file suit within ninety days.

Kepilino concedes that she did not
See SAC ¶ 16.

5

On or around November 11, 2009, Dau allegedly handdelivered to Kepilino a letter from the HDOT Director, Brennon
Morioka, informing her that Livermore, Dau, and Young had filed
complaints against Kepilino based on Kepilino’s EEOC charges
against them.

Id. ¶ 31.

On November 12, 2009, Kepilino filed EEOC Charge No.
486-2010-00063, covering the period from June 24, 2009 to
September 1, 2009.

This charge stated:

In March 2009 and July 2009, I filed EEOC
charges against Respondent.
Respondent is aware of my disability.
From January 2009 through June 2009, I was on
medical leave for my disability.
On June 19, 2009, I was released by my doctor
to work light duty on June 26, 2009.
However, on June 24, 2009, Eleanor Young,
from Respondent’s Personnel Office, informed
me that I was prohibited from returning to
work with Respondent. Instead, she told me
that I would be placed on light duty outside
of Respondent’s division.
On July 10, 2009, Young informed me that I
would report to work at Pearl Ridge
Elementary with the State of Hawaii,
Department of Education.
On September 1, 2009, I was released to work
full duty. I was placed back to my old
position with Respondent.
Exhibit “G” attached to ECF No. 53.
On December 2, 2009, Kepilino filed EEOC Charge No.
486-2010-00084 on the basis of disability discrimination and
6

retaliation from September 1, 2009, to November 10, 2009.

The

charge stated:
I filed EEOC complaints in March, July, and
November 2009.
Since my first day back to work on September
1, 2009, Lisa Dau, Business Office Manager,
and Richard Livermore, Office Services
Supervisor, have subjected me to harassment
by making unpleasant comments, as well as
scrutinizing my work more closely.
On November 11, 2009, I was given a letter by
Ms. Dau informing me that Mr. Livermore filed
a complaint against me regarding my EEOC
complaint.
Exhibit “2" attached to ECF No. 52.

The issues raised by this

charge are now before this court.
On December 15, 2009, the EEOC issued Kepilino a Notice
of Right to Sue for EEOC Charge No. 486-2009-00063.
“G” attached to ECF No. 53.

See Exhibit

It appears that Kepilino did not

file suit within ninety days of this notice.

See ECF No. 12 at

8-9 ¶ 16.
On or around January 14, 2010, Rey Domingo, the Manager
of OCR, allegedly informed Kepilino via e-mail that she was under
investigation in connection with the internal complaints filed by
Livermore, Dau, and Young.

ECF No. 12 at 15 ¶ 33.

On January 21, 2010, Kepilino filed EEOC Charge No.
486-2010-00151, alleging disability discrimination and
retaliation.

7

I previously filed several EEOC charges
against Respondent. Since the filing of my
EEOC charges, I have been subjected to a
hostile work environment.
Respondent has been aware of my disability.
On or around January 7, 2010, my supervisor,
Richard Livermore, presented me with an
envelope regarding my light duty note from my
physician Dr. James Yamashita, MD which
placed me on light duty on January 24, 2009.
In the letter, Livermore stated that due to
my disability, they may need to take some
kind of action to address the problem.
On or around January 8, 2010, I testified
under oath as a witness on behalf of a former
co-worker who filed a discrimination
complaint against Respondent.
On or around January 14, 2010, I received an
email from Office of Civil Rights Manager,
Rey Domingo, stating that three individuals
have filed allegations against me.
Exhibit “1" attached to ECF No. 52.

The issues raised by this

charge are now before this court.
On or around October 18, 2010, Kepilino alleges she
received another assignment:
[Kepilino] was informed that she was not to
report to work at HDOT, but that instead, she
would have to sit at a small typewriter table
with wheels, in the middle of the first floor
lobby of the State Building, also known as
the Leiopapa a Kamehameha Building. This is
a building through which thousands of people
travel daily through its massive lobby. Ms.
Kepilino was ostracized, laughed at, stared
at, and humiliated by having to sit in the
middle of this huge lobby at a portable,
small table which rolled if she leaned on it
to rest her arms.

8

Id. at 16 ¶ 37.
On January 26, 2011, Kepilino was permitted to return
to work at the HDOT.

Id.

On May 1, 2011, Kepilino began working as a Baggage
Attendant for the HDOT’s Airports Division.

Id. at 11 ¶ 21.

She

states that she transferred to this position “due to retaliation
and hostile oppressive work environment of retaliation and
discrimination . . . amidst numerous obstacles created by HDOT.”
Id.
On November 2, 2011, the EEOC issued Kepilino a Notice
of Right to Sue Within 90 Days regarding EEOC Charge Nos. 4862010-00084 and 486-2010-00151.
No. 52.

See Exhibit “3" attached to ECF

The notice stated:
You are further notified that you have the
right to institute a civil action under Title
I of the Americans with Disabilities Act of
1990, 42 U.S.C. § 12111, et seq., against the
above-named respondent. If you choose to
commence a civil action, such suit must be
filed in the appropriate court within 90 days
of your receipt of this Notice.

Id.
On January 31, 2012, Kepilino, proceeding pro se, filed
a Complaint against the HDOT and Okimoto in this court, alleging
violations of the ADA, Title VII, and the Equal Protection
Clause.

See ECF No. 1.
On April 17, 2012, the Hawaii Civil Rights Commission

issued Kepilino Notices of Dismissal and Right to Sue regarding
9

EEOC Nos. 486-2010-00084 and 486-2010-00151, which were already
before this court following the EEOC’s notices.
attached to ECF No. 52.

See Exhibit “4"

This notice stated, “You have the right

to file a private lawsuit against Respondent in the State Circuit
Court within ninety (90) days after receipt of this notice
pursuant to Hawaii Revised Statutes § 368-12 and H.A.R. § 12-4620.”

Id.
On April 24, 2012, Kepilino, with the assistance of

counsel, filed a First Amended Complaint that repeated the
federal claims in the original Complaint, and added Counts 4 and
5, the state law claims under section 378-2.
On May 2, 2012, Kepilino filed a Second Amended
Complaint that repeated the federal and state claims in the First
Amended Complaint, and added Count 6 regarding retaliation under
the ADA.

Kepilino seeks general and special damages, declaratory

and injunctive relief, and attorney’s fees.

See ECF No. 12 at

26.
II.

STANDARD.
Rule 12(c) states, “After the pleadings are closed--but

early enough not to delay trial--a party may move for judgment on
the pleadings.”

The standard governing a Rule 12(c) motion for

judgment on the pleadings is “functionally identical” to that
governing a Rule 12(b) motion.

Dworkin v. Hustler Magazine Inc.,

867 F.2d 1188, 1192 (9th Cir. 1989) (“The principal difference

10

between motions filed pursuant to Rule 12(b) and Rule 12(c) is
the time of filing.”).

See also United States ex rel. Caffaso v.

Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir.
2011).

For a Rule 12(c) motion, the allegations of the nonmoving

party are accepted as true, while the allegations of the moving
party that have been denied are assumed to be false.

See Hal

Roach Studios v. Richard Feiner & Co., 896 F.2d 1542, 1550 (9th
Cir. 1989).

A court evaluating a Rule 12(c) motion must construe

factual allegations in a complaint in the light most favorable to
the nonmoving party.
Cir. 2009).

Fleming v. Pickard, 581 F.3d 922, 925 (9th

“Judgment on the pleadings under Rule 12(c) is

proper when the moving party establishes on the face of the
pleadings that there is no material issue of fact and that the
moving party is entitled to judgment as a matter of law.”

Jensen

Family Farms, Inc. v. Monterey Bay Unified Air Pollution Control
Dist., 644 F.3d 934, 2011 WL 2090829, at *2 n.1 (9th Cir. May 27,
2011).
Generally, when matters outside the pleadings are
considered, a motion for judgment on the pleadings must be
considered as one for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure.

See Fed. R. Civ. P. 12(d).

However, when adjudicating a Rule 12(c) motion, a court may
consider matters subject to judicial notice without converting
the motion to one for summary judgment.

11

See Heliotrope Gen.,

Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999)
(“When considering a motion for judgment on the pleadings, this
court may consider facts that are contained in materials of which
the court may take judicial notice.” (quotations omitted));
accord Lacondeguy v. Adapa, 2011 WL 9572, *2 (E.D. Cal. Jan. 3,
2011); Williams v. City of Antioch, 2010 WL 3632199, *2 (N.D.
Cal. Sept. 2, 2010).
III.

ANALYSIS.
A.

Sovereign Immunity Bars Some of Kepilino’s Claims.

The Eleventh Amendment grants states immunity from
claims brought by private individuals in federal court.
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 100
(1984).

See, e.g., Motoyama v. State, 864 F. Supp. 2d 965 (D.

Haw. 2012).

This immunity does not apply when (1) the state

unequivocally consents to suit, or (2) Congress unequivocally
expresses its intent to abrogate the immunity.

Pennhurst, 465

U.S. at 99.
1.

Kepilino’s ADA Claims Under Counts I and VI are
Dismissed.

Title I of the ADA prohibits states and other employers
from “discriminat[ing] against a qualified individual on the
basis of disability in regard to . . . terms, conditions, and
privileges of employment.”

42 U.S.C. § 12112(a).

The ADA also

prohibits retaliation: “No person shall discriminate against any
individual because such individual has opposed any act or
12

practice made unlawful by this chapter or because such individual
made a charge, testified, or participated in any manner in an
investigation, proceeding, or hearing under this chapter.”

42

U.S.C. § 12203.
Count I asserts that the HDOT and Okimoto, acting in
his official capacity, violated the ADA when they discriminated
against Kepilino.

Under Count I, Kepilino seeks declaratory

relief, injunctive relief, and damages under the ADA.

Count VI

asserts that the HDOT retaliated against her in violation of the
ADA.

Count VI does not specify the type of relief sought, other

than stating that Kepilino “suffered damages.”
In Board of Trustees of the University of Alabama v. Garrett, 531
U.S. 356 (2001), the Supreme Court held that Congress did not
abrogate the states’ Eleventh Amendment immunity when it enacted
or amended the Act.

Id. at 374.

Furthermore, nothing in the

record suggests that the State waived its immunity by consenting
to this suit.
Because the HDOT is a state agency, it is entitled to
immunity from all ADA claims brought in federal court.
Similarly, Okimoto, sued in Count I in his official capacity, is
immune from claims for damages because a suit against a state
employee in his official capacity “is a suit against the
official’s office,” which “is no different from a suit against
the State itself.”

See Will v. Mich. Dep’t of State Police, 49

13

U.S. 58, 71 (1989); Kentucky v. Graham, 473 U.S. 159, 165-66
(1985).

Thus, the court grants judgment in favor of the HDOT and

Okimoto with regard to Kepilino’s ADA claims in Counts I and VI.
This court recognizes that the Supreme Court has established a
narrow exception to this immunity for claims seeking prospective
relief from state officials.

In Ex Parte Young, 209 U.S. 123

(1908), the Court indicated that actions against officials for
prospective injunctive relief were not actions against a state.
The Supreme Court later clarified, in Papasan v. Allain, 478 U.S.
265 (1986), that the Ex Parte Young exception applies only when a
state official engages in an ongoing violation of federal law.
Id. at 277-78.

If the alleged violations occurred in the past,

or the state official directly ends the violation, then the
exception is inapplicable.

Id. at 278 (“Remedies designed to end

a continuing violation of federal law are necessary to vindicate
the federal interest in assuring the supremacy of that law.

But

compensatory or deterrence interests are insufficient to overcome
the dictates of the Eleventh Amendment.”).
Damage claims against individual employees are not
allowed under the ADA.

Walsh v. Nev. Dep’t of Human Res., 471

F.3d 1033, 1038 (9th Cir. 2006).

However, this bar does not

necessarily extend to Ex Parte Young claims against a state
official for prospective injunctive relief under the ADA.
Okwu v. McKim, 682 F.3d 841, 846 n.4 (9th Cir. 2012).

14

See

Even if

such claims may be brought, that does not keep Count I alive.

In

response to Defendants’ contention that the Ex Parte Young
exception is inapplicable to Okimoto because the alleged
violations are not ongoing, Kepilino states in her Memorandum in
Opposition that she “continues to request an office assistant
position with reasonable accommodations and has requested this
numerous times.”

ECF No. 52 at 5.

Not only is this assertion

absent from the Second Amended Complaint, there is no allegation
that Okimoto himself is engaging in an ongoing violation of the
ADA, even assuming there are ongoing violations.

Okimoto is not,

for example, alleged to be preventing the granting of Kepilino’s
request or to be requiring that Kepilino remain in the HDOT
Airports Division.

Nor is there any allegation that Okimoto is

acting upon an underlying authorization that is illegal.

Given

the absence of any allegation of an ongoing violation by Okimoto,
Kepilino is not entitled to an award against him of prospective
injunctive relief.
2.

See Papasan, 478 U.S. at 277-78.
Counts IV and V Against the HDOT Are Barred
Because the State of Hawaii has not waived
its Eleventh Amendment Immunity with Respect
to Section 378-2 Claims.

Hawaii’s anti-discrimination statute, section 378-2 of
Hawaii Revised Statutes, states, “It shall be an unlawful
discriminatory practice . . . [b]ecause of . . . disability . . .
[f]or any employer to . . . bar or discharge from employment, or
otherwise to discrimination against any individual in
15

compensation or in the terms, conditions, or privileges of
employment . . . .”

Haw. Rev. Stat. § 378-2(a)(1)(A).

Sections 661-1 and 662-2 of Hawaii Revised Statutes waive the
State’s immunity to certain types of suits.

However, neither of

these waivers applies to the instant case.

In section 661-1, the

State consents to being sued for monetary relief for violations
of state statutes, state regulations, and contracts entered into
with the state.

See Office of Hawaiian Affairs v. Dept. of

Educ., 951 F. Supp. 1484, 1491 (D. Haw. 1996).

In a case arising

out of the alleged misuse of income derived from Hawaii’s ceded
lands, the Ninth Circuit interpreted section 661-1 as not
constituting a waiver of Hawaii’s Eleventh Amendment immunity.
Price v. Hawaii, 921 F.2d 950, 958 (9th Cir. 1990).

Kepilino

does not establish that section 661-1 should be read broadly as
waiving the State’s immunity from federal claims not mentioned in
section 661-1.
Similarly, in section 662-2, the State consents to
being sued in tort actions.

However, this provision does not

waive the Hawaii’s Eleventh Amendment immunity in civil rights
actions brought under state statutes.

Au v. Hawaii, 735 F. Supp.

963 (D. Haw. 1989), aff’d, 899 F.2d 1224 (9th Cir. 1990).
Au examined Figueroa v. State, 61 Haw. 369, 383-84, 604 P.2d
1198, 1206-07 (1979), in which the Hawaii Supreme Court noted
that the effect of section 662-2 “is to waive immunity from

16

traditionally recognized common law causes of action in tort,
other than those expressly excluded.”

Figueroa held that there

is "no provision in the State Tort Liability Act that expressly
makes the State liable in money damages for constitutional
violations."

Id.

Accordingly, Au concluded that “Hawaii's State

Tort Liability Act is not an express waiver of the State's
Eleventh Amendment immunity from civil rights suits.”
Supp. at 965.

Au, 735 F.

Au held that, because a § 1983 claim against

Hawaii is a civil rights action, it must be dismissed for lack of
subject matter jurisdiction given Hawaii’s Eleventh Amendment
immunity.

Id.
In Counts IV and V, Kepilino asserts claims against the

HDOT for alleged employment discrimination in violation of
section 378-2.

Because these are civil rights claims for which

the State of Hawaii has not waived its Eleventh Amendment
Immunity, Kepilino’s claims against the HDOT fail.

Au, 735 F.

Supp. at 965; see also Will, 491 U.S. at 66 (noting that Congress
did not intend to disturb the states’ Eleventh Amendment immunity
when it passed § 1983 and holding that § 1983 claims against
states are barred by Eleventh Amendment immunity).
B.

Kepilino’s Title VII Claim Against the State is
Sufficient for Purposes of this Motion.

Title VII prohibits employment discrimination on the
basis of “race, color, religion, sex, or national origin.”
U.S.C. § 2000e-2.

42

Title VII also prohibits retaliation when the
17

employee “has opposed any practice made an unlawful employment
practice by this subchapter, or . . . has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter.”
U.S.C. § 2000e-3.

States can be liable under Title VII.

42

See

Fitzpatrick v. Bitzer, 427 U.S. 445, 456 (1976) (noting that
congressional authorization to sue a state is “clearly present”
under Title VII).
In Count II, Kepilino sues the HDOT and Okimoto in his
official capacity for retaliation relating to her “testi[mony] as
a witness at an Administrative Hearing in support of a
[p]laintiff who had filed a Title VII and ADA lawsuit against
HDOT”.1
Because Title VII does not allow damage claims against
individual employees, Williams v. United States General Services
Administration, 905 F.2d 308, 311 (9th Cir. 1990), no Title VII
damages are available from Okimoto, who, in any event, is sued

1

Kepilino also bases her Title VII retaliation claim on
Defendants’ alleged harassment of her, allegedly in response to
her own complaints filed with the HDOT Office of Civil Rights and
the EEOC. This argument fails because Kepilino nowhere asserts
that any of her own discrimination complaints was based on race,
color, religion, sex, or national origin. She may not base a
Title VII retaliation claim on harassment allegedly flowing from
a complaint that did not fall within the scope of Title VII. See
generally Jura v. Cnty. of Maui, 2012 WL 5187845, at * 12-13 (D.
Haw. Oct. 17, 2012) (finding that an employer’s investigation
concerned alleged discrimination based on jealousy, not sex, and
therefore did not give rise to a cognizable Title VII claim).
18

only in his official capacity.

With respect to claims for

prospective injunctive relief under Ex Parte Young, the court
notes that no ongoing retaliation by Okimoto himself is alleged.
Under these circumstances, Kepilino may not seek prospective
injunctive relief.

See Papasan, 478 U.S. at 277-78.

The Title VII claim against the HDOT, however, is sufficient to
survive dismissal.

See Swierkiewicz v. Sorema, 534 U.S. 506

(2002) (an employment discrimination complaint need only specify
allegations in a manner providing sufficient notice).
C.

Kepilino’s Equal Protection Claim Fails.

In Count III, Kepilino asserts that the HDOT and
Okimoto in his official capacity subjected her to disparate
treatment based on her disability, in violation of the Equal
Protection Clause.

Defendants argue that Count III must be

dismissed because there is no direct cause of action under the
Constitution.
Litigants seeking relief from a defendant’s allegedly
unconstitutional conduct must assert a cause of action under 42
U.S.C. § 1983.

Kepilino did not assert a § 1983 claim.

Even if the court construes Count III as a § 1983 claim, it
fails.

Section 1983 authorizes assertion of a claim for relief

against a “person” who acts under color of state law.

A suable §

1983 “person” encompasses state and local officials sued in their
personal capacities, municipal entities, and municipal officials

19

sued in an official capacity.
Police, 491 U.S. 58 (1989).

Will v. Michigan Dep’t of State
A § 1983 action may not be

maintained against a state employee sued in an official capacity
because “neither a State nor its officials acting in their
official capacities are ‘persons’ under § 1983.”

Id.

The HDOT,

as an arm of the State, and Okimoto, as an individual sued in his
official capacity, are therefore not subject to suit under
§ 1983.
D.

The Court Stays the Motion Relating to Counts IV
and V Insofar as Those Counts are Aimed at
Individuals Sued in Their Individual Capacities.

The portions of the motion relating to section 278-2
claims in Counts IV and V against Dau and Livermore in their
individual capacities are stayed pending a decision by the Hawaii
Supreme Court in Lales v. Wholesale Motors Co., 127 Haw. 412, 279
P.3d 77 (Ct. App. 2012)(unpublished), cert. granted, 2012 WL
4801373 (Haw. Oct. 9, 2012).
Whether chapter 378 limits claims that may be brought
against co-workers is an issue as to which there is, as yet, no
clear statement by the Hawaii Supreme Court. Litigants and courts
addressing this issue have relied on, among other things,
analogies to Title VII, under which claims against individual
employees are not allowed.

See Miller v. Maxwell's Int'l, Inc.,

991 F.2d 583, 587–88 (9th Cir. 1993)(“Congress did not intend to
impose individual liability on employees . . . . If Congress
20

decided to protect small entities with limited resources from
liability, it is inconceivable that Congress intended to allow
civil liability to run against individual employees.”).

But

there will soon be a definitive resolution as to whether chapter
378, in contrast to Title VII, allows discrimination claims to be
brought directly against individuals (even if not for aiding and
abetting, as expressly permitted by section 378–2(3)).

The

Hawaii Supreme Court is expected to rule soon on this very issue
in Lales.
The Lales ruling by the Hawaii Intermediate Court of
Appeals that is now being reviewed by the Hawaii Supreme Court
held that individual employees could be sued under section 378–2
both as an employer’s agents and for aiding and abetting
discrimination.

In so ruling, the ICA adopted the reasoning of

Judge J. Michael Seabright of this court in Sherez v. Hawaii
Department of Education, 396 F. Supp. 2d 1138, 1145 (D. Haw.
2005).

The ICA did not mention that the Ninth Circuit had, in a

different case raising the same issue, determined that “there is
no individual liability under Hawaii Revised Statutes
§ 378–2(1)(A) and (2),” notwithstanding the individual liability
for aiding and abetting discrimination provided for by section
378–2(3).

See Lum v. Kauai Cnty. Council, 358 Fed. App'x 860,

862 (9th Cir. 2009)(affirming decision in Civ. No. 06–00068
SOM/LEK, 2007 WL 3408003 (D. Haw. Nov. 9, 2007)).

21

If the Hawaii Supreme Court affirms the ICA's ruling in
Lales, this court will of course apply the Hawaii Supreme Court's
reasoning rather than the Ninth Circuit's in any dispute turning
on the applicability of section 378–2 to individual employees.
Until the Hawaii Supreme Court’s rules, however, the court stays
the portions of the motion relating to Counts IV and V insofar as
they assert section 378-2 claims against Livermore and Dau in
their individual capacities.

This stay relates to the motion but

does not apply to discovery.
IV.

CONCLUSION.
The court GRANTS IN PART, DENIES IN PART, and STAYS IN

PART Defendants’ Motion for Judgment on the Pleadings.

Judgment

on the pleadings is granted to the HDOT and Okimoto on the ADA
claim in Count I.

Count II (Title VII retaliation) may proceed

only against the HDOT, and is otherwise dismissed.

Counts III

(Equal Protection Clause) and VI (ADA retaliation) are dismissed
in their entirety.

Counts IV and V (section 378-2) are dismissed

to the extent the claims are brought against the HDOT.

The

portions of Counts IV and V brought against Dau and Livermore in
their individual capacities are stayed pending the outcome of
Lales.
In summary, this order leaves for further adjudication
the portion of Count II against the HDOT that asserts Title VII
retaliation relating to Kepilino’s testimony on behalf of another

22

Title VII complainant, while staying Counts IV and V (section
378-2 claims) against Dau and Livermore.
The parties are directed to inform this court promptly
upon the Hawaii Supreme Court’s issuance of a decision in Lales.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, June 19, 2013.

/s/ Susan Oki Mollway
Susan Oki Mollway
Chief United States District Judge

Jessica L. Kepilino v. State of Hawaii, et al., 12-cv-00066
SOM/BMK; ORDER GRANTING IN PART, DENYING IN PART, AND STAYING IN
PART, DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS

23