Ritchie v. State of Hawaii, Department of Public Safety
ORDER DENYING PLAINTIFF'S ORAL MOTION FOR JUDGMENT AS A MATTER OF LAW re 384 Motion for Judgment as a Matter of Law. Signed by JUDGE LESLIE E. KOBAYASHI on 03/30/2017. (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).
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THE STATE OF HAWAI`I,
DEPARTMENT OF PUBLIC SAFETY; )
and NEAL WAGATSUMA, in his
official capacity as Warden
of the Kauai Community
Department of Public Safety, )
State of Hawai`i, and in his )
CAROLYN C. RITCHIE,
CIVIL 14-00046 LEK-KJM
ORDER DENYING PLAINTIFF’S ORAL
MOTION FOR JUDGMENT AS A MATTER OF LAW
Before the Court is Plaintiff Carolyn L. Ritchie’s
(“Plaintiff”) Motion for Judgment as a Matter of Law (“Motion”),
presented orally on December 7, 2016.
(dkt. no. 349) (“12/7/16 Minutes”).]
[Minutes, filed 12/7/16
The same day, the Court
heard oral argument on the Motion from Plaintiff.
filed a memorandum in support of her Motion on December 14, 2016,
and Defendants State of Hawai`i, Department of Public Safety
(“DPS”) and Neal Wagatsuma, in his individual capacity
(“Wagatsuma” and collectively “Defendants”), filed a memorandum
in opposition on December 20, 2016.1
[Dkt. nos. 384, 396.]
On December 7, 2016, Defendants requested, and the Court
After careful consideration of the Motion, supporting and
opposing memoranda, and the relevant legal authority, Plaintiff’s
Motion is HEREBY DENIED for the reasons set forth below.
On January 4, 2016, Plaintiff filed her Second Amended
[Dkt. no. 152.]
Jury selection took place on
November 1, 2016, and trial commenced the same day.
filed 11/1/16 (dkt. no. 302).]
The trial proceeded on the
unlawful retaliation under Title VII of the
Civil Rights Act of 1964, as amended (“Title VII”), 42 U.S.C.
§ 2000e-1, et seq., against DPS (“Count I”); violation of 42
U.S.C. § 1983 against Wagatsuma (based on violation of the First
Amendment to the United Constitution) (“Count II”); unlawful
incitement or attempted incitement of retaliation in violation of
Haw. Rev. Stat. § 378-2 against Wagatsuma (“Count III”);
intentional infliction of emotional distress (“IIED”) against
Wagatsuma (“Count V”); and defamation against Wagatsuma
On November 30, 2016, Plaintiff voluntarily
granted, permission to use its own motions for judgment as a
matter of law as opposition memoranda to Plaintiff’s Motion.
[12/7/16 Motion at 2.] However, Defendants filed a separate
opposition memorandum. Defendants’ motions for judgment as a
matter of law were withdrawn on December 20, 2016. [Minutes,
filed 12/20/16 (dkt. no. 397).]
The Second Amended Complaint also brings a claim for
wrongful termination and/or constructive discharge against
withdrew Count VI with prejudice.
[Minutes, filed 11/30/16 (dkt.
Plaintiff rested her case on November 30, 2016,
[Minutes, filed 11/30/16 (dkt. no. 336),] and Defendants rested
their case on December 7, 2016 [Minutes, filed 12/7/16 (dkt. no.
Closing arguments took place on December 12, 2016, and
the jury began deliberations the same day.
12/12/16 (dkt. no. 360.]
On December 20, 2016, after sixteen
days of trial, the jury reached a verdict.
12/20/16 (dkt. no. 397).]
on all counts.
The jury found in favor of Defendants
See Special Verdict Form as to Defendant State of
Hawai`i, Department of Public Safety, filed 12/20/16 (dkt. no.
399); Special Verdict Form as to Defendant Wagatsuma, filed
12/20/16 (dkt. no. 400).
Plaintiff ask this Court to enter
judgment as a matter of law in her favor on all counts.
Fed. R. Civ. P. 50 provides, in relevant part:
Judgment as a Matter of law.
In General. If a party has been fully
heard on an issue during a jury trial
and the court finds that a reasonable
Wagatsuma (“Count IV”). Plaintiff represented that this is not a
stand-alone claim, but is connected to the unlawful retaliation
claim against Wagatsuma. See, e.g., Mem. in Supp. of Motion at
18-19 (explaining, in relation to Count II, that Plaintiff
“experienced job limitations and a hostile work environment that
forced her out of the workplace in 2012.”).
jury would not have a legally sufficient
evidentiary basis to find for the party
on that issue, the court may:
resolve the issue against the
grant a motion for judgment as a
matter of law against the party on
a claim or defense that, under the
controlling law, can be maintained
or defeated only with a favorable
finding on that issue.
Motion. A motion for judgment as a
matter of law may be made at any time
before the case is submitted to the
jury. The motion must specify the
judgment sought and the law and facts
that entitle the movant to the judgment.
(b) Renewing the Motion After Trial; Alternative
Motion for a New Trial. If the court does not
grant a motion for judgment as a matter of law
made under Rule 50(a), the court is considered to
have submitted the action to the jury subject to
the court’s later deciding the legal questions
raised by the motion. No later than 28 days after
the entry of judgment – or if the motion addresses
a jury issue not decided by a verdict, no later
than 28 days after the jury was discharged – the
movant may file a renewed motion for judgment as a
matter of law and may include an alternative or
joint request for a new trial under [Fed. R. Civ.
P.] 59. In ruling on the renewed motion, the
allow judgment on the verdict, if the
jury returned a verdict;
order a new trial; or
direct the entry of judgment as a matter
This Court has stated:
The standard for judgment as a matter of law
mirrors that for granting summary judgment.
Reeves v. Sanderson Plumbing Prods., Inc., 530
U.S. 133, 149-50 (2000). “[I]n entertaining a
motion for judgment as a matter of law, the court
. . . may not make credibility determinations or
weight the evidence.” Id. at 149. Rather, the
court “must view the evidence in the light most
favorable to the nonmoving party . . . and draw
all reasonable inferences in that party’s favor.”
Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th
Cir. 2006). Where there is sufficient conflicting
evidence, or if reasonable minds could differ over
the verdict, judgment as a matter of law is
improper. Pierson v. Ford Motor Co., No. C 066503 PJH, 2009 WL 3458702, at *1 (N.D. Cal. Oct.
23, 2009); see generally Kern v. Levolor
Lorentzen, Inc., 899 F.2d 772, 775 (9th Cir.
Sunrise Helicopters, Inc. v. Alexair, Inc., Civil No. 10-00346
LEK-BMK, 2012 WL 1946960, at *4 (D. Hawai`i May 29, 2012)
(alterations in Sunrise Helicopters).
Count I – Violation of Title VII
A claim for Title VII retaliation requires a plaintiff
“(1) [s]he engaged in a protected activity; (2) [s]he
suffered an adverse employment action; and (3) there was a causal
connection between the two.”
Jinadasa v. Brigham Young Univ. -
Haw., Civil No. 14-00441 SOM/BMK, 2015 WL 3407832, at *6 (D.
Hawai`i May 27, 2015) (citing Surrell v. Cal. Water Serv. Co.,
518 F.3d 1097, 1108 (9th Cir. 2008)).
This district court has
stated that “[a]n ‘adverse employment action’ is an action that
is ‘materially adverse’ to a reasonable employee or job
Lee v. Hawai`i, Civ. No. 09-00032 SOM/KSC, 2010 WL
235009, at *5 (D. Hawai`i Jan. 20, 2010) (quoting Burlington N. &
Santa Fe. Ry. Co. v. White, 548 U.S. 53, 68, 126 S. Ct. 2405, 165
L. Ed. 2d 345 (2006)).
Plaintiff argues that the evidence proves her Title VII
claims as a matter of law.
[Mem. in Supp. of Motion at 16.]
Even assuming that Plaintiff can prove that “the evidence
‘permits only one reasonable conclusion’” with regard to engaging
in a protected activity, see Percelle v. Pearson, Case No. 12-cv05343-THE, 2016 WL 7385965, at *1 (N.D. Cal. Dec. 21, 2016)
(quoting Pavao v. Pagay, 307 F.3d 915, 918 (9th Cir. 2002)),
Plaintiff cannot show that the same is true with regard to a
causal connection between that and any adverse employment action.
Plaintiff asserts that the evidence at trial showed adverse
employment actions in the form of, inter alia:
being placed on
leave without pay from Kaua`i Community Correction Center
(“KCCC”) for one month while under investigation in August 2010;
[Tr. Exh. P-111;] remaining under investigation and on leave with
pay from September 2010 to February 2012; [Tr. Exh. P-120;] being
suspended for fifteen days as a result of the investigation; [Tr.
Exh. D-614;] beginning to search for a replacement while she was
on leave; hostility from staff at KCCC upon her return; and a
second investigation that resulted in a recommendation of
criminal charges [Tr. Exhs. P-327, P-357].
DPS, however, has produced sufficient evidence from
which a jury could infer that the investigations, suspension, and
general treatment of Plaintiff were due to her repeated
violations of the rules, and that the search and eventual hire of
a full-time social worker were the result of the facility’s
This evidence includes, but is not limited to, improper
communication with inmates – including passing notes between
inmates, giving inmates candy, and engaging in an ongoing
correspondence with a KCCC inmate using someone else’s name – and
not altering her behavior when counseled by members of KCCC
Moreover, Lieutenant Thomas Lindsey (“T. Lindsey”)
testified that the length of the first investigation was, in
part, due to the many other responsibilities that he had at KCCC,
and Wesley Mun, DPS Corrections Health Care Administrator, and
Michael Hoffman, former director of the institutions division at
DPS, testified that, while Plaintiff’s investigation was long,
other investigations have been longer.
See Minutes, filed
11/18/16 (dkt. no. 319) (T. Lindsey examination); Minutes, filed
12/1/16 (Hoffman examination); Minutes, filed 12/2/16 (dkt. no.
345) (Mun examination).
The Court FINDS that there is
conflicting evidence and CONCLUDES that Plaintiff is not entitled
to judgment as a matter of law on Count I.
Plaintiff was a part-time DPS employee.
Count II – § 1983 Retaliation
“To state a claim under 42 U.S.C. § 1983, a plaintiff
(1) a violation of a right secured by the
constitution and laws of the United States; and (2) that the
deprivation was committed by a person acting under color of law.”
Ragasa v. Cty. of Kaua`i, CIVIL NO. 14-00309 DKW-BMK, 2016 WL
543118, at *11 (D. Hawai`i Feb. 8, 2016) (citing West v. Atkins,
487 U.S. 42, 48 (1988)).
Here, it is uncontested that Wagatsuma
was acting under the color of law when he engaged in the
allegedly retaliatory actions against Plaintiff.
district court has stated, “[r]etaliation in the employment
context is actionable under section 1983 when it is in response
to a plaintiff’s First Amendment activity.”
Coszalter v. City of Salem, 320 F.3d 968, 973 (9th Cir. 2003)).
The Ninth Circuit has developed a five-part test for evaluating a
First Amendement retaliation claim:
First, we consider whether the plaintiff has
engaged in protected speech activities, which
requires the plaintiff to show that the plaintiff:
(1) spoke on a matter of public concern; and
(2) spoke as a private citizen and not within the
scope of her official duties as a public employee.
If the plaintiff makes these two showings, we ask
whether the plaintiff has further shown that she
(3) suffered an adverse employment action, for
which the plaintiff’s protected speech was a
substantial or motivating factor. If the
plaintiff meets her burden on these first three
steps, thereby stating a prima facie claim of
First Amendment retaliation, then the burden
shifts to the government to escape liability by
establishing either that: (4) the state’s
legitimate administrative interests outweigh the
employee’s First Amendment rights; or (5) the
state would have taken the adverse employment
action even absent the protected speech. See
Robinson v. York, 566 F.3d 817, 822 (9th Cir.
2009), Eng [v. Cooley], 552 F.3d [1062,] 1070
[(9th Cir. 2009)]; see also Lakeside-Scott v.
Multnomah Cnty., 556 F.3d 797, 803 (9th Cir.
Karl v. City of Mountlake Terrace, 678 F.3d 1062, 1068 (9th Cir.
2012) (some alterations in Karl).
Plaintiff argues that she made reports of alleged
discrimination and other activities taking place at KCCC, she was
retaliated against, and “Wagatsuma was at the heart of the
[Mem. in Supp. of Motion at 19.]
reports about Wagatsuma and his Life Time Stand program (“LTS”)
to the Hawai`i Disability Rights Commission (“HDRC”) and the
United States Equal Employment Opportunity Commission (“EEOC
See, e.g., Tr. Exhs. P-137 (email from Plaintiff to
HDRC about her reports on the LTS program, dated 5/3/11); D-637
Plaintiff alleges that, as a result, Wagatsuma
orchestrated the aforementioned adverse employment actions.
Mem. in Supp. of Motion at 18.
Moreover, Plaintiff argues that
“DPS had no legitimate interest in protecting Wagatsuma by
forcing Plaintiff out of her job for 17 months and then making
her job conditions so intolerable that she had no choice but to
[Id. at 20.]
Even assuming that Plaintiff could
satisfy the other elements of Count II, Plaintiff cites the same
adverse employment actions that she cited to support Count I.
They are equally unavailing here.
The Court FINDS that there is
conflicting evidence regarding the reasons for the investigations
and Wagatsuma’s role in the investigations, and CONCLUDES that
Plaintiff is not entitled to judgment as a matter of law on
III. Count III – Violation of Haw. Rev. Stat. § 378-2
Haw. Rev. Stat. § 378-2(a)(3) states:
“It shall be an
unlawful discriminatory practice [f]or 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[.]”
Plaintiff alleges that
Wagatsuma incited the first investigation, “restrictions in
Plaintiff’s ability to do her job,” a hostile work environment,
and the second investigation.
See Mem. in Supp. of Motion at 23-
Again, these are the same alleged actions for which the
Court has found competing evidence.
Reading the evidence in the
light most favorable to Wagatsuma, the Court cannot say that a
reasonable jury could not find that the actions taken by
Wagatsuma and others at KCCC were based upon Plaintiff’s failure
to follow the rules.
The Court therefore CONCLUDES that
Plaintiff is not entitled to judgment as a matter of law on Count
Count V - IIED
“The elements of [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.”
Ohana Military Cmtys., 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)).
‘outrageous’ has been construed to mean without cause or excuse
and beyond all bounds of decency.”
Enoka, 109 Hawai`i at 559,
129 P.3d at 872 (citation and internal quotation marks omitted).
Plaintiff alleges that Wagatsuma’s actions within the LTS
program, including particular movies shown and treatment of
certain KCCC inmates, were outrageous.
This is irrelevant.
[Mem. in Supp. of Motion
To recover on a claim for IIED,
Plaintiff must show that Wagatsuma’s treatment of her was
In addition, to further support this element of her
claim, Plaintiff cites the same actions used to support her other
See Mem. in Supp. of Motion at 32-35.
The Court FINDS,
for the same reasons stated previously, that there is conflicting
evidence about whether or not these actions were outrageous.
Thus, even assuming Plaintiff could show that she is entitled to
judgment as a matter of law on the other elements of IIED, the
Court may not grant the Motion on Count IV.
The Court therefore
CONCLUDES that Plaintiff is not entitled to judgment as a matter
of law on Count IV.
On the basis of the foregoing, Plaintiff Carolyn L.
Ritchie’s oral motion for Judgment as a Matter of Law, presented
on December 7, 2016, is HEREBY DENIED.
The Clerk’s Office is
directed to enter judgment and close this case.
IT IS SO ORDERED.
DATED AT HONOLULU, HAWAII, March 30, 2017.
/s/ Leslie E. Kobayashi
Leslie E. Kobayashi
United States District Judge
CAROLYN L. RITCHIE VS. THE STATE OF HAWAII, ET AL; CIVIL 14-00046
LEK-KJM; ORDER DENYING PLAINTIFF’S ORAL MOTION FOR JUDGMENT AS A
MATTER OF LAW
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