Ritchie v. State of Hawaii, Department of Public Safety
Filing
39
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS re 34 Motion for Judgment on the Pleadings. Signed by JUDGE LESLIE E. KOBAYASHI on 09/30/2014. (eps)CERTIFICATE OF SERVICEParticipants registered to receive electronic notifications received this document electronically at the e-mail address listed on the Notice of Electronic Filing (NEF). Participants not registered to receive electronic notifications were served by first class mail on the date of this docket entry
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
)
)
Plaintiff,
)
)
vs.
)
)
)
THE STATE OF HAWAI`I,
DEPARTMENT OF PUBLIC SAFETY; )
)
and NEAL WAGATSUMA, in his
official capacity as Warden
)
)
of the Kauai Community
Correctional Center,
)
Department of Public Safety, )
State of Hawai`i, and in his )
)
individual capacity,
)
)
Defendants.
_____________________________ )
CAROLYN C. RITCHIE,
CIVIL 14-00046 LEK-BMK
ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
On July 3, 2014, Defendants State of Hawai`i,
Department of Public Safety (“DPS”) and Neal Wagatsuma, in his
official capacity as Warden of the Kauai Community Correctional
Center, DPS, and in his individual capacity (“Wagatsuma,”
collectively “Defendants”), filed their Motion for Judgment on
the Pleadings (“Motion”).
[Dkt. no. 34.]
Plaintiff Carolyn C.
Ritchie (“Plaintiff”) filed her memorandum in opposition on
August 25, 2014, and Defendants filed their reply on August 29,
2014.
[Dkt. nos. 36, 37.]
September 15, 2014.
This matter came on for hearing on
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
for the reasons set forth below.
Specifically, the Court
DISMISSES WITH PREJUDICE all counts against Wagatsuma, in his
official capacity; DISMISSES WITH PREJUDICE as to DPS all counts,
except Count I; DISMISSES as to Wagatsuma, in his individual
capacity, WITH PREJUDICE as to Counts I, IV and VII, and WITHOUT
PREJUDICE as to Counts III and IV; and DENIES the Motion in all
other respects.
BACKGROUND
Plaintiff, who worked as a psychiatric social worker at
Kauai Community Correctional Center (“KCCC”) from approximately
April 2009 to November 2012, filed her First Amended Complaint on
February 21, 2014, alleging that she was retaliated against and
constructively discharged after she reported Defendants’
mistreatment of female inmates at KCCC.1
[First Amended
Complaint, filed 2/21/14 (dkt. no. 8), at ¶¶ 1, 6.]
Plaintiff
alleges that, in 2009 and 2010, she observed that: the work
furlough program for the Life Time Stand (“LTS”) housing section
of KCCC was limited to men; Wagatsuma psychologically abused
female inmates by video-recording “counseling sessions” of female
inmates, in which he forced inmates to discuss private sexual
matters and watch the screening of sexually violent rape films;
1
DPS and Wagatsuma, in his official capacity, filed their
answer on March 17, 2014, and Wagatsuma, in his individual
capacity, filed his answer on March 24, 2014. [Dkt. nos. 15,
16.]
2
and these video-recorded sessions were publicly displayed and
shown to other inmates.
[Id. at ¶¶ 14-15.]
Plaintiff alleges
that female inmates confided in her about their fear and shame as
a result of these “grillings” and, as a result, Plaintiff made
repeated verbal and written reports to DPS Mental Health
supervisor Mark Mitchell (“Mitchell”), specifically that: the
grillings were cruel and unusual; the work furlough program was
discriminatory; Wagatsuma violated inmate rights under the Health
Insurance Portability and Accountability Act of 1996, 42 U.S.C.
§ 1320d, et seq.; and DPS denied basic mental health services to
female inmates.
[Id. at ¶¶ 16-18.]
In August 2009, Plaintiff authorized Mitchell to submit
the complaints to DPS officials on Oahu, and DPS opened an
investigation into the allegations.
[Id. at ¶¶ 19-21.]
Plaintiff alleges that, upon information and belief, DPS
disciplined Wagatsuma and instructed him to discontinue the
humiliating and discriminatory behavior.
[Id. at ¶ 22.]
Plaintiff further alleges that, in late 2010, Wagatsuma removed
Plaintiff from KCCC based on a pretextual investigation into
allegations that Plaintiff had passed notes between married male
and female inmates - a practice that was legal and regularly
employed by Plaintiff’s male predecessor.
[Id. at ¶¶ 23, 25-26.]
Plaintiff was suspended with pay during the eighteen-month
investigation until, in 2012, it was terminated in her favor.
3
[Id. at ¶¶ 27, 29.]
Plaintiff alleges that in late 2010 she made
multiple reports to the office of the Hawai`i Attorney General
(“Attorney General”), and in 2011 and 2012 to the United States
Department of Justice (“Department of Justice”), the Hawai`i
Disability Rights Center (“HDRC”), and the American Civil
Liberties Union (“ACLU”).
[Id. at ¶¶ 25, 28.]
After the investigation was resolved in her favor,
Wagatsuma made it difficult for Plaintiff to return to KCCC and
then, when she successfully returned, he targeted her by
soliciting unfavorable letters from inmates against her and
limiting her contact with female inmates.
[Id. at ¶¶ 30-33.]
In
one incident, Wagatsuma ordered a lockdown “in an effort to
intercept a confidential communication between Plaintiff and one
of her female patients.”
[Id. at ¶ 34.]
Plaintiff also alleges
that she was retaliated against by being denied the ability to
make phonecalls to families on behalf of female inmates.
[Id. at
¶¶ 35-36.]
Also in 2012, Plaintiff further complained to Mitchell
that the reporting structure for sexual abuse of female inmates
was insufficient.
[Id. at ¶ 37.]
In May 2012, Plaintiff alleges
that she began experiencing stress, high blood pressure, and
fatigue and took medical leave.
[Id. at ¶ 38.]
Plaintiff
further alleges that, on June 20, 2012, she filed charges with
the United States Equal Employment Opportunity Commission
4
(“EEOC”) and the Hawai`i Civil Rights Commission (“HCRC”),
alleging retaliation and, on November 5, 2012, she was
constructively discharged due to intolerable work conditions.
[Id. at ¶¶ 39-40.]
Both the EEOC and HCRC issued Plaintiff right
to sue letters thereafter.
[Id. at ¶ 43.]
The First Amended Complaint alleges the following
claims: unlawful retaliation, pursuant to Title VII of the Civil
Rights Act of 1964, as amended (“Title VII”), 42 U.S.C. § 2000e1, et seq. (“Count I”); First Amendment violation, pursuant to 42
U.S.C. § 1983 (“Count II”); unlawful retaliation, pursuant to
Haw. Rev. Stat. § 378-2 (“Count III”); retaliation against a
whistleblower, pursuant to Haw. Rev. Stat. § 378-62 (“Count IV”);
wrongful termination/constructive discharge (“Count V”);
intentional infliction of emotional distress (“Count VI”); and
wrongful/termination/constructive discharge in violation of
public policy, pursuant to Parnar v. Americana Hotels, Inc., 65
Haw. 370, 652 P.2d 625 (1982) (“Count VII” or “Parnar Claim”).
Plaintiff seeks the following relief: general and/or compensatory
damages; special damages; punitive and/or liquidated or exemplary
damages against Wagatsuma, individually; attorneys’ fees and
costs; other legal and equitable relief available under state and
federal statutes; and any other appropriate relief.
24-25.]
5
[Id. at pgs.
STANDARD
Federal Rule of Civil Procedure 12(c) provides: “After
the pleadings are closed – but early enough not to delay trial –
a party may move for judgment on the pleadings.”
“Although
[Ashcroft v.] Iqbal[, 556 U.S. 662 (2009),] establishes the
standard for deciding a Rule 12(b)(6) motion, we have said that
Rule 12(c) is ‘functionally identical’ to Rule 12(b)(6) and that
‘the same standard of review’ applies to motions brought under
either rule.”
Cafasso, U.S. ex rel. v. Gen. Dynamics C4 Sys.,
Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (citations
omitted).
On a motion for judgment on the pleadings, the court
must “accept all factual allegations in the complaint as true and
construe them in the light most favorable to the non-moving
party.”
Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009).
“[J]udgment on the pleadings is properly granted when there is no
issue of material fact in dispute, and the moving party is
entitled to judgment as a matter of law[.]”
Jackson v. Barnes,
749 F.3d 755, 763 (9th Cir. 2014) (citation and internal
quotation marks omitted).
DISCUSSION
Defendants move for judgment on all counts, against all
defendants, in all capacities.
As an initial matter, Plaintiff
concedes that she cannot bring Count I for violation of Title VII
against Wagatsuma, in either his official or individual capacity,
6
[Mem. in Opp. at 11-12 (citing Miller v. Maxwell’s Int’l Inc.,
991 F.2d 583, 587-88 (9th Cir. 1993)),] or Count II for First
Amendment violation, pursuant to 42 U.S.C. § 1983, against DPS or
Wagatsuma, in his official capacity [id. at 21 (citing Will v.
Michigan Dep’t of State Police, 491 U.S. 58 (1989))].
The Court
GRANTS the Motion on these grounds, and DISMISSES WITH PREJUDICE
Count I against Wagatsuma, in both his official and individual
capacities, and Count II against DPS and Wagatsuma, in his
official capacity, because it is clear that these shortcomings
“could not be saved by any amendment.”
Harris v. Amgen, Inc.,
573 F.3d 728, 737 (9th Cir. 2009) (citation and internal
quotation marks omitted).
Further, Plaintiff clarifies that she is not pursuing
her state law claims, Counts III through VII, against DPS or
Wagatsuma, in his official capacity, before this Court.2
in Opp. at 9-10.]
[Mem.
Thus, the Court GRANTS the Motion as to those
Counts, and DISMISSES WITH PREJUDICE Counts III through VII
against DPS and Wagatsuma, in his official capacity.
See Calhoun
v. Dep’t of Corr., 402 F. App’x 196, 197 (9th Cir. 2010)
(“Eleventh Amendment bars suits in federal court against states
on the basis of violations of state law” (citing Cholla Ready
Mix, Inc. v. Civish, 382 F.3d 969, 973-74 (9th Cir. 2004)); Flint
2
At the hearing, Plaintiff’s counsel expressly stated that
he was reserving Plaintiff’s right to bring these claims in state
court.
7
v. Dennison, 488 F.3d 816, 824-25 (9th Cir. 2007) (“‘[A] suit
against a state official in his or her official capacity . . . is
no different from a suit against the State itself.’” (some
alterations in Flint) (quoting Will, 491 U.S. at 71, 109 S. Ct.
2304)).
Last, Plaintiff does not oppose the Motion as to
Count V, for wrongful termination/constructive discharge, and the
Court therefore GRANTS the Motion as to this count.
The Court
thus DISMISSES WITHOUT PREJUDICE Count V against Wagatsuma, in
his individual capacity.
See Harris, 573 F.3d at 737 (“Dismissal
without leave to amend is improper unless it is ‘clear’ that the
complaint could not be saved by any amendment.”) (citation and
internal quotation marks omitted)).
After Plaintiff’s concessions, what remains of the
First Amended Complaint is Count I against DPS, and Counts II,
III, IV, VI, and VII against Wagatsuma, in his individual
capacity.
The Court considers each of these claims in order, as
follows.
I.
Count I Against DPS
Defendants argue that Plaintiff does not state a
Title VII retaliation claim against DPS because Plaintiff did not
engage in protected activity, and any belief that she was
engaging in protected activity was unreasonable.
8
“To establish a prima facie case, the employee must
show that he engaged in a protected activity, he was subsequently
subjected to an adverse employment action, and that a causal link
exists between the two.”
936 (9th Cir. 2011).
Dawson v. Entek Int’l, 630 F.3d 928,
“Conduct constituting a ‘protected
activity’ includes filing a charge or complaint, testifying about
an employer’s alleged unlawful practices, and ‘engaging in other
activity intended to oppose an employer’s discriminatory
practices.’”
E.E.O.C. v. Global Horizons, Inc., 904 F. Supp. 2d
1074, 1088 (D. Hawai`i 2012) (quoting Raad v. Fairbanks N. Star
Borough Sch. Dist., 323 F.3d 1185, 1197 (9th Cir. 2003)).
“It is not necessary, however, that the employment
practice actually be unlawful; opposition clause protection will
be accorded whenever the opposition is based on a reasonable
belief that the employer has engaged in an unlawful employment
practice.”
Moyo v. Gomez, 32 F.3d 1382, 1384-85 (9th Cir. 1994)
(emphasis in Moyo) (citation omitted); see also E.E.O.C. v. Go
Daddy Software, Inc., 581 F.3d 951, 967 (9th Cir. 2009) (“In
order to constitute protected activity, a complaint must be based
on an employee’s ‘reasonable belief’ that he is reporting conduct
that violates Title VII.” (citation omitted)).
Defendants argue, and this Court agrees, that the vast
majority of the allegations in the First Amended Complaint and
Plaintiff’s EEOC charge, [Reply, Decl. of Anthony “T.J.” Quan,
9
Exh. 1 (EEOC Charge of Sexual Discrimination, Declaration of
Carolyn Ritchie (“EEOC Charge”)),] relate to discrimination
against female KCCC inmates.
These allegations, they argue, are
not protected nor could they reasonably be believed to be
protected under Title VII.
This Court disagrees.
While
Plaintiff’s allegations regarding the abusive counseling sessions
cannot reasonably be believed to relate to employment
discrimination, Plaintiff’s complaints regarding the work
furlough program can be.
To survive a motion to dismiss, a complaint must simply
contain sufficient factual matter to “state a claim to relief
that is plausible on its face.”
U.S. 544, 570 (2007).
Bell Atl. Corp. v. Twombly, 550
“A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.”
Iqbal, 556 at 678.
At this early stage in
the litigation, Plaintiff has pled sufficient facts that the
inmates may have been employees for the purposes of Title VII or,
at least, that she thought they were covered.
Defendants’
attempt to distinguish Moyo on this point is unpersuasive.
In Moyo, a corrections officer alleged that he was
fired for refusing to enforce a prison practice of allowing white
inmates to shower after work, but not black inmates.
1384.
32 F.3d at
The district court dismissed the claim, but the Ninth
10
Circuit reversed based on three independent grounds.3
Although
the court drew the distinction between compensated and work
release labor on one hand, which might be covered by Title VII,
and forced labor on the other, which was clearly not, the court
held that it could not “say with certainty from the face of the
complaint either 1) that the inmates were not ‘employees’ under
Title VII, or 2) that, even if they were not, Moyo could not have
reasonably believed that a violation of Title VII occurred.”
Id.
at 1385-86.
Consistent with Moyo, this Court cannot ascertain from
the face of the First Amended Complaint whether the work that
inmates at KCCC participated in was voluntary or forced.
See,
e.g., First Amended Complaint at ¶ 14 (“Women in the LTS program
were not given the same opportunity for work furlough as men.”
(emphasis added)); EEOC Charge at 2 (“Those inmates selected by
the warden to enlist in [LTS] live in the cabins surrounding the
main prison . . . [and] are eligible for work furlough outside
the prison . . . .” (emphasis added)).
Further, there is nothing
in the First Amended Complaint that would lead the Court to infer
that Plaintiff did not hold a good faith belief that the KCCC
inmates were covered under Title VII.
3
Thus, insofar as Plaintiff
The first ground was that Moyo might show that enforcing
the discriminatory practice was a condition of his own
employment, Moyo, 32 F.3d at 1385, which is not at issue in this
case.
11
reported discrimination in the work furlough program, Plaintiff
states a claim that she engaged in protected behavior.
Moreover, although the focus of the First Amended
Complaint and EEOC Charge is on the inmates, Plaintiff does state
a claim for disparate treatment against her as a basis for her
complaints.
Specifically, Plaintiff alleges:
23.
In late 2010, Defendant Wagatsuma ordered
Plaintiff removed from working at KCCC under the
pretext of a “pending investigation.” The
investigation was prompted by an allegation that
Plaintiff had passed a note between a male
Detainee and his wife, a female Detainee.
. . . .
25.
At the time the pre-textual investigation was
launched against Plaintiff, KCCC and the DPS did
not have any rules or regulations which prohibited
KCCC social workers from passing notes between
male and female Detainees. . . .
26.
Plaintiff’s predecessor at the KCCC, John Winnes,
frequently assisted married Detainees in this same
manner without objection from Defendant Wagatsuma.
Mr. Winnes would pass notes between married
Detainees without repercussions. Mr. Winnes also
held group discussions in the female quarters of
the modules. Defendant Wagatsuma prohibited
Plaintiff from engaging in the same practice.
[First Amended Complaint at ¶¶ 23-26.]
These allegations, at the
very least, state a claim for disparate treatment against
Plaintiff based on her gender that could form a basis for the
retaliation claim.
See Hawn v. Executive Jet Mgmt., Inc., 615
F.3d 1151, 1156 (9th Cir. 2010) (describing elements of a
disparate treatment claim).
Therefore, the Court DENIES the
12
Motion insofar as Plaintiff states a plausible claim that:
(1) she engaged in protected activity by complaining on behalf of
those female inmates discriminated against in not receiving work
furlough; (2) even if they were not covered employees, she held a
good faith and reasonable belief she was engaging in protected
activity in complaining on behalf of the inmates denied
employment opportunities; and (3) she engaged in protected
activity by complaining about disparate treatment from male
psychiatric social workers at KCCC.
II.
Counts Against Wagatsuma in His Individual Capacity
A.
Count II (Section 1983)
“‘To state a claim under § 1983, a plaintiff must
allege two essential elements: (1) that a right secured by the
Constitution or laws of the United States was violated, and (2)
that the alleged violation was committed by a person acting under
the color of State law.’”
Esparza v. Cnty. of Los Angeles, 527
F. App’x 638, 639 (9th Cir. 2013) (quoting Long v. Cnty. of Los
Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006)).
Further, “[t]o
state a First Amendment claim against a public employer, an
employee must show: (1) the employee engaged in constitutionally
protected speech; (2) the employer took adverse employment
action’ against the employee; and (3) the employee’s speech was a
‘substantial or motivating factor for the adverse action.”
Lakeside-Scott v. Multnomah Cnty., 556 F.3d 797, 803 (9th Cir.
13
2009) (citations and internal quotation marks omitted).
Plaintiff alleges that she made complaints about the
treatment of female inmates to Mitchell and DPS in 2009 and 2012,
to the Attorney General in 2010, and to the Department of
Justice, the HDRC, the ACLU, the EEOC, and the HCRC in 2012,
[First Amended Complaint at ¶¶ 17-21, 24, 28, 37, 39,] and that,
as a result, Wagatsuma first initiated a pretextual
investigation, then singled Plaintiff out and made it difficult
for her to do her job and, ultimately, constructively discharged
her [id. at ¶¶ 23-24, 30-36, 38, 40].
Defendants argue that
Plaintiff does not state an actionable First Amendment claim
because her complaints were not protected because they were “part
of her job duties to report alleged psychological abuse to her
mental health supervisors.”4
[Reply at 7.]
4
Defendants also argue that Plaintiff cannot prove the
second and third elements, regarding adverse action and causation
of her First Amendment claim. First, they argue that all of the
complaints, except the initial one, were made by Plaintiff after
she was already being investigated, and thus the complaints could
not have caused any adverse action. Second, they argue that the
investigation was not an adverse employment action because it was
consistent with Plaintiff’s collective bargaining rights. The
Court rejects these arguments because Plaintiff states a
plausible claim that she was wrongfully singled out for the
investigation, and that the series of adverse acts resulted from
Plaintiff’s continued complaints on behalf of herself and female
inmates. While Plaintiff may not be able to carry her burden at
summary judgment, viewing the allegations in the light most
favorable to Plaintiff, see Fleming, at 581 F.3d at 925, she
states a claim as to these elements.
14
Although this is a close question, the Court disagrees.
It is not clear to the Court, in particular, from the pleadings
that making internal reports of psychological abuse of inmates
is, in fact, part of Plaintiff’s job duties.
While the Court
recognizes that the inmates’ general psychological health was her
responsibility, reporting abuse at the hands of her superior is
likely not, and certainly not reporting it to outside agencies.
Both parties cite to Garcetti v. Ceballos, 547 U.S. 410
(2006), to support their positions.
In Ceballos, the United
States Supreme Court held that a deputy district attorney did not
engage in protected speech when he wrote a disposition memorandum
to his supervisors, questioning misrepresentations in an
affidavit by the Los Angeles County Sheriff’s Department, because
“his expressions were made pursuant to his duties as a calendar
deputy.”
547 U.S. at 421.
However, the Supreme Court limited
its holding, explaining that, since the parties did not dispute
that the attorney was acting pursuant to his job duties, it had
“no occasion to articulate a comprehensive framework for defining
the scope of an employee’s duties in cases where there is room
for serious debate.”
Id. at 424.
Freitag v. Ayers, 468 F.3d 528, 535 (9th Cir. 2006), in
which the Ninth Circuit applied Ceballos, is instructive on this
point.
In Freitag, a female corrections officer brought suit,
alleging that her First Amendment rights had been violated when
15
she was pretextually investigated after reporting sexual
harassment by male inmates to her supervisors, and contacting a
California State Senator Richard Polanco and the California
Office of the Inspector General (“IG”).
On appeal, the state
defendants argued that Freitag did not speak “as a citizen” and
thus her speech was not protected.
The Ninth Circuit explained:
Under Ceballos, Freitag does not lose her right to
speak as a citizen simply because she initiated
the communications while at work or because they
concerned the subject matter of her employment.
[126 S. Ct.] at 1959. The critical inquiry is
instead whether Freitag engaged in the relevant
speech “pursuant to [her] official duties.” 126
S. Ct. at 1960. With respect to her contact with
Senator Polanco and the IG, the answer is “No.”
It was certainly not part of her official tasks to
complain to the Senator or the IG about the
state’s failure to perform its duties properly,
and specifically its failure to take corrective
action to eliminate sexual harassment in its
workplace. Rather, it was Freitag’s
responsibility as a citizen to expose such
official malfeasance to broader scrutiny.
Accordingly, in these instances, for purposes of
the First Amendment she spoke as a citizen.
Freitag, 468 F.3d at 545 (alterations in Freitag) (footnote
omitted).
Further, on remand, the district court found that a
letter Frietag wrote to the director of the California Department
of Corrections and Rehabilitation was protected speech, and the
Ninth Circuit affirmed this conclusion.
See Freitag v. Cal.
Dep’t of Corr., 289 F. App’x 146, 147 (9th Cir. 2008).
While Freitag is not identical to this case, it shows
that, based on the allegations in the First Amended Complaint,
16
Plaintiff may have a valid First Amendment claim for reporting
“official malfeasance” – sexual discrimination and harassment of
female inmates – at the hands of KCCC, up and out of the chain of
command.
See Freitag, 468 F.3d at 545; see also Dahlia v.
Rodriguez, 735 F.3d 1060, 1075 (9th Cir. 2013) (“if a public
employee raises within the department broad concerns about
corruption or systemic abuse, it is unlikely that such complaints
can reasonably be classified as being within the job duties of an
average public employee, except when the employee’s regular job
duties involve investigating such conduct, e.g., when the
employee works for Internal Affairs or another such watchdog
unit”), cert. denied, 134 S. Ct. 1283 (2014).
The Court thus
DENIES the Motion as to Count II against Wagatsuma, in his
individual capacity.
B.
Count III (Violation of Haw. Rev. Stat. § 387-2)
Defendants argue that Plaintiff is foreclosed by the
Hawai`i Supreme Court’s decision in Lales v. Wholesale Motors
Co., 133 Hawai`i 332, 328 P.3d 341 (2014), from bringing
Count III against Wagatsuma, in his individual capacity.
in Supp. of Motion at 12-13.]
[Mem.
The Court agrees.
Plaintiff brings Count III under Haw. Rev. Stat. § 3782(2), which provides:
It shall be an unlawful discriminatory practice:
. . .
17
(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[.]
Section 378-1 defines an “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.”
It also defines “person” 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.”
Id.
In Lales, a car salesman brought, inter alia,
discrimination and retaliation claims under Chapter 378 (as well
as a Parnar claim) against his former employer, JN Automotive
Group (“JN”), and his supervisor, Gary Marxen (“Marxen”).
The
Hawai`i Supreme Court held that Lales’s claims against Marxen
failed as a matter of law because Chapter 378 does not apply
against individual employees.
P.3d at 352-53.
Lales, 133 Hawai`i at 343-44, 328
The court held that § 378-2(2) limits liability
to “employers,” and an individual employee, such as a supervisor,
cannot be an “employer” within the definition supplied by § 3781.
Id. at 344-45, 328 P.3d at 353-54.
The court based its
interpretation of these sections on: its reading of the statute
as a whole and a comparison with sections that clearly and
18
expressly anticipate individual employee liability, i.e., the
subsection on aiding and abetting, see infra; the legislative
history of the statute; and federal courts’ limitation on
individual employee liability in the similar and persuasive
Title VII context.
Id. at 345-48, 328 P.3d 354-57.
The court
concluded that, “[i]ndividual employees are therefore not
personally liable as ‘employers’ for . . . retaliation claims”
under § 378–2(2).
Id. at 344, 328 P.3d at 353.
In an attempt to refashion Count III in her memorandum
in opposition, Plaintiff argues that she states a claim against
Wagatsuma as an aider and abettor pursuant to Haw. Rev. Stat.
§ 378–2(3).
[Mem. in Opp. at 19-21.]
The Court rejects this
change in position, and finds that Plaintiff has not described
how Wagatsuma aided, abetted, incited, compelled, or coerced
discrimination by DPS or other employees sufficient to state a
plausible claim under § 378–2(3).
Further, Defendants are
correct that it is legally untenable for Plaintiff to claim that
Wagatsuma aided and abetted himself, since he is the sole
individual actor in the First Amended Complaint.
See, e.g., Park
v. Oahu Transit Servs., Inc., CV NO 10-00445-DAE, 2011 WL
3490190, at *8 (D. Hawai`i Aug. 10, 2011) (“the Individual
Defendants may not be held liable under § 378–2(3) for any
discriminatory behavior they may have conducted themselves,
because they cannot be liable for aiding and abetting
19
[themselves]”) (alteration in Park) (citation and internal
quotation marks omitted)).
For these reasons, the Court GRANTS
the Motion as to Plaintiff’s retaliation claim, and DISMISSES
Count III against Wagatsuma in his individual capacity.
The
dismissal is WITHOUT PREJUDICE insofar as Plaintiff can
conceivably state a claim under § 378–2(3) for aiding and
abetting others in retaliation against Plaintiff.
C.
Count IV (Violation of Haw. Rev. Stat. § 378-62)
Lales also forecloses Count IV, for retaliation against
a whistleblower in violation of the Hawai`i Whistleblower
Protection Act (“HWPA”).
Haw. Rev. Stat. § 378-62 provides in
full:
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
20
to participate in an investigation, hearing,
or inquiry held by that public body, or a
court action.
Similar to § 378-1, Haw. Rev. Stat. § 378-61 defines “employer”
as “a person who has one or more employees.
Employer includes an
agent of an employer or of the State or a political subdivision
of the State.”
Also, the statute defines “person” as “an
individual, sole proprietorship, partnership, corporation,
association, or any other legal entity.”
Id.
This district court has adopted the reasoning of Lales
in rejecting HWPA claims against individual employees.
See
Onodera v. Kuhio Motors Inc., Civil No. 13-00044 DKW-RLP, 2014 WL
1031039, at *7-8 (D. Hawai`i Mar. 13, 2014) (“Accordingly, in
light of Lales, and the extension of its application to the HWPA,
the Court dismisses Count V as against Defendants Rivera and
Mackey individually.”).
In Onodera, this district court based
the extension of the reasoning in Lales, regarding § 378-2, to
the HWPA based on the similarities in the legislative histories
and the definitions of “employer.”
Id. (quoting Lum v. Kauai
County Council, 2007 WL 3408003, at *20–21 (D. Haw. Nov. 9,
2007)).
Although Hawai`i courts have not ruled on the issue yet,
this Court finds the reasoning in Onodera persuasive.
Thus, the
Court GRANTS the Motion as to the HWPA claim, and DISMISSES WITH
PREJUDICE Count V as to Wagatsuma, in his individual capacity.
21
D.
Count VI (Intentional Infliction of Emotional Distress)
“The elements of intentional infliction of emotional
distress (‘IIED’) pursuant to Hawaii law, are: (1) that the act
allegedly causing the harm was intentional or reckless, (2) that
the act was outrageous, and (3) that the act caused (4) extreme
emotional distress to another.”
Barber v. Ohana Military
Communities, LLC, Civil No. 14-00217 HG-KSC, 2014 WL 3529766, at
*10 (D. Hawai`i July 15, 2014) (citing Enoka v. AIG Hawaii Ins.
Co., Inc., 128 P.3d 850, 872 (Haw. 2006)).
The Hawai`i Supreme Court has held that the “term
‘outrageous’ has been construed to mean without just cause or
excuse and beyond all bounds of decency.”
Enoka, 109 Hawai`i at
559, 128 P.3d at 872 (citation and internal quotation marks
omitted).
“Moreover, extreme emotional distress constitutes,
inter alia, mental suffering, mental anguish, nervous shock, and
other highly unpleasant mental reactions.”
Id. (citation and
internal quotation marks omitted).
Defendants rest on the argument that “the Court in the
first instance cannot possibly find anything in the [First
Amended Complaint that could rise to the level of outrageous
conduct beyond all bounds of decency.”
[Reply at 11.]
Construing the allegations in the First Amended Complaint in the
light most favorable to the Plaintiff, she claims that Wagatsuma
engaged in an ongoing and malicious vendetta against her, which
22
cost her job and her health, for reporting him for purportedly
humiliating his psychologically vulnerable charges.
The Court
agrees with Plaintiff that “at this preliminary stage,” [Mem. in
Opp. at 29,] she states a plausible claim of outrageous conduct.
The Court therefore DENIES the Motion as to Count VI against
Wagatsuma, in his individual capacity.
E.
Count VII (Parnar)
The Court finds that Count VII fails because: a Parnar
claim may only be brought against an employer; and Plaintiff’s
allegations do not bring the claim within the narrow class of
cases where Parnar applies.
In Parnar v. Americana Hotels, Inc., 65 Haw. 370, 652
P.2d 625 (1982), the Hawai`i Supreme Court adopted a common law
tort, whereby an individual may bring a claim against an employer
if her discharge directly violates clear public policy.
The
court explained,
Because the courts are a proper forum for
modification of the judicially created at-will
doctrine, it is appropriate that we correct
inequities resulting from harsh application of the
doctrine by recognizing its inapplicability in a
narrow class of cases. The public policy
exception discussed herein represents wise and
progressive social policy which both addresses the
need for greater job security and preserves to the
employer sufficient latitude to maintain
profitable and efficient business operations. We
therefore hold that an employer may be held liable
in tort where his discharge of an employee
violates a clear mandate of public policy. In
determining whether a clear mandate of public
policy is violated, courts should inquire whether
23
the employer’s conduct contravenes the letter or
purpose of a constitutional, statutory, or
regulatory provision or scheme. Prior judicial
decisions may also establish the relevant public
policy. However, courts should proceed cautiously
if called upon to declare public policy absent
some prior legislative or judicial expression on
the subject. Of course, the plaintiff alleging a
retaliatory discharge bears the burden of proving
that the discharge violates a clear mandate of
public policy.
Id. at 379-80, 652 P.2d at 631 (footnotes omitted).
“Parnar
claims can only be maintained in a ‘narrow class of cases’ where
the judicially created wrongful discharge action is needed to
effectuate the public policy at stake.”
Cambron v. Starwood
Vacation Ownership, Inc., 945 F. Supp. 2d 1133, 1141-42 (D.
Hawai`i 2013) (citing Ross v. Stouffer Hotel Co., 76 Hawai`i 454,
879 P.2d 1037, 1047 (1994)).
First, Plaintiff does not state a claim because the
Hawai`i Supreme Court expressly limited the claim to employers:
“We therefore hold that an employer may be held liable in tort
where his discharge of an employee violates a clear mandate of
public policy.”
added).
65 Haw. at 380, 652 P.2d at 631 (emphasis
As with the § 378-2 and HWPA claims, Wagatsuma was not
Plaintiff’s employer.
See supra Sections II.B-C.
Second, even if Wagatsuma was Plaintiff’s employer, the
Court questions whether Plaintiff’s Parnar Claim is “needed to
effectuate the public policy at stake.”
Supp. 2d at 1142.
See Cambron, 945 F.
Courts generally dismiss Parnar claims where
24
the plaintiffs also have recourse under Title VII and Chapter
378.
See, e.g., Patrick v. 3D Holdings, LLC, Civil No. 13-00638
JMS/KSC, 2014 WL 1094917, at *12 (D. Hawai`i Mar. 18, 2014)
(citing Hughes v. Mayoral, 721 F. Supp. 2d. 947, 962 (D. Haw.
2010) (“Plaintiff cannot state a claim for wrongful termination
in violation of public policy [under Parnar] based on the same
conduct as his Title VII and HRS § 378 claims because these
statutes already provide a sufficient remedy.” (alteration in
Patrick))); Ross, 76 Hawai`i at 464, 879 P.2d at 1047 (“By making
the discharge of an employee ‘because of . . . [his or her]
marital status’ unlawful, HRS § 378–2(1), and providing a
remedial scheme for that discriminatory employment practice, the
legislature itself has provided the means for enforcing the
public policy that Ross seeks to vindicate through his Parnar
claim.” (alterations in Ross)).
Plaintiff argues that her constructive discharge
“violated clearly established public policies that exist to
protect and benefit individuals in custodial detention.”
in Opp. at 20.]
[Mem.
Further, she alleges that “it is an obvious
public policy to prohibit the State and State prison officials to
[sic] from abusing their duties and powers against the very
individuals they are charged to oversee and rehabilitate.”
[Id.]
While the Court recognizes that, if true, Wagatsuma’s
practices may run afoul of the State’s responsibilities to
25
incarcerated individuals, the Court is not persuaded that the
general policies, as described by Plaintiff, fit her claim into
the “narrow class of cases” recognized in Parnar.
Haw. at 379, 652 P.2d at 631.
See Parnar, 65
First, Plaintiff does not cite to
“a constitutional, statutory, or regulatory provision or scheme”
that creates a clear mandate that Defendants have violated.
id. at 380, 652 P.2d at 631.
See
Second, even if there were a clear
mandate, this policy could be vindicated by Plaintiff’s other
retaliation claims, at least with regard to her own
discrimination and the discriminatory implementation of the work
furlough program.
In Lales, the Hawai`i Supreme Court upheld the
vacatur of summary judgment for JN as to Lales’s Parnar claim
because it was not clear whether there were still disputed issues
of fact as to that claim.
372.
Lales, 133 Hawai`i at 363, 328 P.3d at
But the court limited its conclusion: “[S]hould the circuit
court determine on remand that the public policy claim is indeed
derived from HRS chapter 378, such a claim would be barred.”
Id.
From the First Amended Complaint in the instant case, it appears
that the Parnar Claim is “derived from” the other retaliation
claims.
Thus, the Court GRANTS the Motion as to Plaintiff’s
Parnar Claim, and DISMISSES WITH PREJUDICE Count VII against
Wagatsuma, in his individual capacity.
26
V.
Summary
The Court therefore GRANTS IN PART AND DENIES IN PART
the Motion.
The Court DISMISSES WITH PREJUDICE all counts
against Wagatsuma, in his official capacity.
It DISMISSES WITH
PREJUDICE as to DPS all counts, except Count I.
As to Wagatsuma,
in his individual capacity, the Court DISMISSES WITH PREJUDICE
Counts I, IV and VII, and WITHOUT PREJUDICE Counts III and V.
It
DENIES the Motion in all other respects.
The only remaining claims in the First Amended
Complaint are: Count I, for retaliation pursuant to Title VII,
against DPS; and Counts II, for violation of Plaintiff’s First
Amendment rights, and Count VI, for IIED, against Wagatsuma, in
his individual capacity.
To the extent that Plaintiff wants to amend the
Complaint, she must file a motion for leave to amend by the date
set forth in the current Rule 16 Scheduling Order.
CONCLUSION
On the basis of the foregoing, Defendants’ Motion for
Judgment on the Pleadings, filed July 3, 2014, is HEREBY GRANTED
IN PART AND DENIED IN PART.
//
//
//
//
27
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, September 30, 2014.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CAROLYN C. RITCHIE VS. THE STATE OF HAWAI`I, ETC., ET AL; CIVIL
14-00046 LEK-BMK; ORDER GRANTING IN PART AND DENYING IN PART
DEFENDANTS’ MOTION FOR JUDGMENT ON THE PLEADINGS
28
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