Ragasa v. County of Kauai et al

Filing 85

ORDER GRANTING INDIVIDUAL CAPACITY DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS. Signed by JUDGE DERRICK K. WATSON on 9/15/2015. ~ On the basis of the foregoing, the Court GRANTS Defendant Kalani Vierra's Motion for Judgment on the Pleadings [dkt. no. 56 ]; Defendant Norman Hunters Joinder [dkt. no. 58 ]; and Defendant Robert F. Westerman's Joinder [dkt. 19no. 60 ]. Ragasa is GRANTED until October 2, 2015 to file an amended complaint in accordance wi th this order. (ecs, )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 HAWAI`I

CARL A. RAGASA,

CIVIL NO. 14-00309 DKW-BMK

Plaintiff,
vs.
COUNTY OF KAUA’I; ROBERT F.
WESTERMAN; KALANI VIERRA;
NORMAN HUNTER; JOHN DOES 150; JANE DOES 1-50; DOE
ASSOCIATIONS 1-50; DOE
PARTNERSHIPS 1-50; DOE
CORPORATIONS 1-50; AND DOE
GOVERNMENTAL AGENCIES 1-50,

ORDER GRANTING INDIVIDUAL
CAPACITY DEFENDANTS’
MOTION FOR JUDGMENT ON
THE PLEADINGS

Defendants.

ORDER GRANTING INDIVIDUAL CAPACITY DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS

INTRODUCTION
Plaintiff Carl Ragasa alleges that the County of Kauai Fire Department
(“KFD”) retaliated against him after he reported improper conduct by fellow KFD
employees that included the falsification of time sheets and the theft of gas.
Ragasa brings claims against the County and his supervisors and co-workers,
Robert F. Westerman, Kalani Vierra, and Norman Hunter, in their official and

individual capacities. Because Ragasa cannot state claims against the individual
capacity defendants based on municipal liability under 42 U.S.C. § 1983,
respondeat superior liability, or the Hawaii Whistleblowers Protection Act, Haw.
Rev. Stat. (“HRS”) § 378-62, the individual capacity defendants are entitled to
judgment on the pleadings. Ragasa is granted leave to amend only his claim for
intentional infliction of emotional distress.
BACKGROUND
Ragasa is employed by KFD as a Water Safety Officer. Complaint ¶ 4.
Defendant Vierra is a KFD Ocean Safety Director, and Defendant Hunter is a KFD
Water Safety Officer Supervisor. Both supervise Ragasa. Complaint ¶¶ 7-8. As
Chief of the KFD, Defendant Westerman is in charge of the entire department,
including Ragasa and his supervisors. Complaint ¶ 6.
Ragasa alleges that, in 2010, he reported to Hunter that he observed another
KFD employee stealing gas from the County. According to Ragasa, that same
employee was engaged in a “side business” with Vierra. After reporting the gas
theft to Hunter, Ragasa alleges that the employee-thief was transferred to another
station away from Ragasa, but was not otherwise disciplined. Complaint ¶ 10.
In early 2012, Ragasa reported to Hunter that a different KFD employee was
using illegal drugs while on duty. Ragasa alleges that this employee was Hunter’s

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friend and was similarly transferred to another station so that Ragasa could not
observe his illegal conduct. Complaint ¶ 11.
On or about October 29, 2012, Ragasa again raised the issue of gas theft by
KFD employees and alleged a cover-up of the theft directly to Vierra. Around the
same time, Ragasa also reported to Vierra that an unnamed KFD supervisor was
advising lifeguards to falsify timesheets relating to their training hours. Complaint
¶ 12.
According to Ragasa, shortly after his October 29, 2012 report to
supervisors, Defendants retaliated against him through a “campaign of retaliatory
harassment” that included:
bombarding [Ragasa] with a slew of false accusations of
misconduct dating back over two years prior; knowingly
instituting disciplinary proceedings based upon such false
accusations; placing [Ragasa] on leave without pay while they
purportedly investigated the charges that [Ragasa] engaged in
misconduct years earlier; disparate treatment with respect to
application of Kauai County rules and discipline of [Ragasa];
and attempting to alienate [Ragasa] from his co-workers.
Complaint ¶ 14. Ragasa contends that all Defendants were aware of his reporting
of illegal and/or improper conduct by KFD employees. Complaint ¶ 13.
Ragasa received a written notice of disciplinary action for what he alleges
were false or exaggerated allegations of misconduct in December 2012, and
thereafter received additional written allegations of misconduct from the County,

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signed by Westerman. Complaint ¶ 15. Ragasa contends that, from 2010 to the
present, Defendants have engaged in a pattern and practice of retaliatory
harassment against at least five other unnamed KFD employees who reported
illegal and/or inappropriate conduct by other County employees. Complaint ¶ 16.
Ragasa lists the following forms of retaliatory harassment by Defendants:
instructing KFD supervisors to target said employees [including
Ragasa], watch them closely, and find any reason to write them
up for discipline; transferring said KFD employees to
unfavorable locations; encouraging other employees to make
false and/or exaggerated allegations of misconduct and
initiating disciplinary proceeding based upon such allegations;
disproportionately disciplining the employees’ engaged in
protected conduct for minor infractions; and verbally harassing
said employees.
Complaint ¶ 17. Ragasa believes that Defendants conspired with one another and
with other unnamed employees to retaliate against him for speaking out
against improper conduct by KFD employees by:
instructing KFD supervisors to “target” [Ragasa] for
disciplinary action because [Ragasa] was causing trouble for
KFD, and by encouraging employees to assert allegations of
misconduct against [Ragasa] that were false, misleading, and/or
exaggerated. Many such allegations were used by Defendants
to initiate disciplinary proceedings against [Ragasa], place him
on administrative leave, and were later dropped, amended or
not sustained. The multiple suspensions and/or leaves without
pay
caused a financial burden on [Ragasa] and his family.
Complaint ¶ 18.

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Ragasa asserts the following claims: (1) First Amendment retaliation and
conspiracy under 42 U.S.C. § 1983 and the Hawaii State Constitution (Count I);
(2) municipal liability under 42 U.S.C. § 1983 (Count III); (3) Hawaii
Whistleblowers Protection Act (“HWPA”) liability pursuant to HRS § 378-62
(Count V); (4) intentional infliction of emotional distress (“IIED”) (Count VI); and
(5) respondeat superior and/or vicarious liability against the County (Count VII).1
Westerman, Vierra, and Hunter are sued in both their official and individual
capacities. Vierra, in his individual capacity, seeks judgment on the pleadings on
Counts III, V, VI, and VII. Westerman and Hunter, also in their individual
capacities, join in Vierra’s motion.
STANDARD OF REVIEW
The standard governing a Federal Rule of Civil Procedure 12(c) motion for
judgment on the pleadings is “functionally identical” to that governing a Rule
12(b)(6) motion. United States ex rel. Caffaso v. Gen. Dynamics C4 Sys., Inc., 637
F.3d 1047, 1054 n.4 (9th Cir.2011). “[T]o survive a Rule 12(b)(6) motion to
dismiss, factual allegations must be enough to raise a right to relief above the
speculative level, on the assumption that all the allegations in the complaint are

1

The Complaint does not include a Count II or a Count IV.

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true even if doubtful in fact.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007)) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (“the pleading standard Rule 8 announces does not require
‘detailed factual allegations,’ but it demands more than an unadorned, thedefendant-unlawfully-harmed-me accusation”). “While a complaint attacked by a
Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a
plaintiff’s obligation to provide the ‘grounds’ of his ‘entitlement to relief’ requires
more than labels and conclusions, and a formulaic recitation of the elements of a
cause of action will not do.” Twombly, 550 U.S. at 555. The complaint must
“state a claim to relief that is plausible on its face.” Id. at 570. “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 U.S. at 677.
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. Fleming v. Pickard, 581 F.3d 922, 925 (9th Cir. 2009). Under Rule 12(c),

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“Judgment on the pleadings is properly granted when, accepting all factual
allegations as true, there is no material fact in dispute, and the moving party is
entitled to judgment as a matter of law.” Chavez v. United States, 683 F.3d 1102,
1108 (9th Cir. 2012) (quoting Fleming, 581 F.3d at 925); accord Jensen Family
Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist., 644 F.3d 934,
937 n.1 (9th Cir. 2011).
DISCUSSION
I.

Unopposed Claims (Counts III and VII)
In opposition to the motion, Ragasa acknowledges that the County itself is

the only defendant for his municipal liability claim under Section 1983 (Count III),
and his claim based on respondeat superior and/or vicarious liability (Count VII).
In fact, Counts III and VII appear to be pled only against the County. To the extent
these Counts can be read to include claims against the individual capacity
defendants, however, they fail to state claims against Vierra, Westerman, and
Hunter in their individual capacities. Accordingly, the motion is GRANTED as to
Counts III and VII.
II.

HWPA Claim Against Individual Employees (Count V)
Count V alleges that—
34.

Plaintiff engaged in protected activity by reporting to KFD
suspected violations of a law, rule, ordinance, or regulation

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adopted pursuant to the laws of this State, a political
subdivision of this State, and/or the County of Kauai.
35.

Defendants threatened and/or otherwise discriminated against
Plaintiff because he engaged in such protected activity in
violation of Hawaii Revised Statute § 378-62.

Under the HWPA, it is unlawful for an employer to discriminate against an
employee because 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] law, rule, ordinance, or regulation, adopted pursuant to
law of this State, a political subdivision of this State, or the United States.” HRS
§ 378-62(1)(A). To establish a prima facie claim of retaliation under the HWPA,
Ragasa must prove that (1) he engaged in a protected activity, (2) he was subjected
to an adverse employment action, and (3) the adverse employment action resulted
because of the participation in the protected activity. See Cambon v. Starwood
Vacation Ownership, Inc., 945 F. Supp. 2d 1133, 1142-43 (D. Haw. 2013); Griffin
v. JTSI, Inc., 654 F. Supp. 2d 1122, 1130-32 (D. Haw. 2008) (citing Crosby v.
State Dep’t of Budget & Fin., 76 Hawai‘i 332, 876 P.2d 1300, 1310 (1994)).
Defendants seek judgment on Ragasa’s HWPA claim based principally on
the recent Hawai‘i Supreme Court case, Lales v. Wholesale Motors Co., 133
Hawai‘i 332, 328 P.3d 341 (2014), which forecloses individual liability under HRS
§ 378-2 against co-employees and supervisors. In Lales, the Hawai‘i Supreme

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Court held that, individual employees are not liable as “employers” for harassment
and retaliation claims under HRS §§ 378-2(1)(A) and 378-2(2). Following Lales,
this Court, in Onodera v. Kuhio Motors Inc., 2014 WL 1031039 (D. Haw. Mar. 13,
2014), applied the reasoning set forth in Lales to the HWPA based on the
similarities in the legislative histories and the definitions of “employer.” Onodera
noted that, before Lales finally settled the issue of individual liability in the state
courts, this district court had “analyzed the meaning of ‘employer’ under HRS 3782 and under the HWPA, and concluded that the definition under both statutes is the
same.” Onodera, 2014 WL 1031039, at *7.
Nothing in the legislative history of section 378-62 and of
section 378-61 evidences any intent that the definition of
“employer” in section 378-61 be read more broadly than the
definition in section 378-1. . . . It makes little sense to treat
claims under section 378-2(2) differently from identical claims
under section 378-62. . . . Because the legislature did not
clearly indicate an intent to include individuals in the definition
of “employer” in section 378-61, this court does not stretch to
give that statute such a meaning.
Id. at *8 (quoting Lum v. Kauai County Council, 2007 WL 3408003, at *20-21 (D.
Haw. Nov. 9, 2007)). Accordingly, Onodera extended the rationale of Lales to the
HWPA, and dismissed HWPA claims against the individual capacity defendants.
See id.

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Other decisions from this district have followed suit. See, e.g., Ritchie v.
Hawai‘i, 2014 WL 4905336, at *8 (D. Haw. Sept. 30, 2014) (Granting motion for
judgment on the pleadings on HWPA claim against individual capacity defendant,
noting that “[a]lthough Hawai‘i courts have not ruled on the issue yet, this Court
finds the reasoning in Onodera persuasive.”); Hillhouse v. Hawaii Behavorial
Health, LLC, 2014 WL 4662378, at *8 (D. Haw. Sept. 18, 2014) (“Although
Hawai‘i courts have not ruled on the issue yet [of whether a member of an LLC
can be sued in his individual capacity under the HWPA], this Court finds the
reasoning in Onodera persuasive.”). Ragasa cites no compelling authority to the
contrary.2
Based upon this Court’s prior decision in Onodera, interpreting Lales to
foreclose similar state law claims against individual employees and supervisors,
the Court concludes that Ragasa cannot maintain his HWPA claim against Vierra,
Westerman and Hunter in their individual capacities. Accordingly, the motion is
GRANTED as to Count V.

2

Ragasa instead relies solely on pre-Lales case law, Black v. Correa, 2007 WL 3195122 (D.
Haw. Oct. 30, 2007), the value of which has at least been called into question by Lales.

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III.

IIED Claim (Count VI)
Ragasa alleges in Count VI that

“Defendants maliciously, knowingly,

intentionally, recklessly, willfully, deliberately, engaged in outrageous conduct,
without regard for the rights, interests, and well-being of Plaintiff, and thereby
caused Plaintiff to suffer severe and/or extreme emotional distress.” Complaint
¶ 38. Defendants seek judgment on Ragasa’s IIED claim because it is preempted
by the Hawaii Workers’ Compensation Act, HRS § 386-5, and because Ragasa
cannot establish the requisite elements of this claim.
A.

Count VI Not Barred By the Hawaii Workers’ Compensation Act

Ragasa does not dispute that individual supervisory employees acting in the
scope of their employment are exempt from liability for certain tort claims under
the Hawaii Workers’ Compensation Act, HRS § 386-5. He contends, however,
that the statute does not bar his claims against the individual capacity defendants to
the extent his emotional distress injuries were caused by their willful and wanton
misconduct.
The Hawaii Workers’ Compensation Act provides a remedy to an employee
who “suffers personal injury . . . by accident arising out of and in the course of the
employment . . . proximately caused by or resulting from the nature of the
employment.” HRS § 386-3(a). This remedy is exclusive:

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The rights and remedies herein granted to an employee or the
employee’s dependents on account of a work injury suffered by
the employee shall exclude all other liability of the employer to
the employee, the employee’s legal representative, spouse,
dependents, next of kin, or anyone else entitled to recover
damages from the employer, at common law or otherwise, on
account of the injury, except for sexual harassment or sexual
assault and infliction of emotional distress or invasion of
privacy related thereto, in which case a civil action may also be
brought.
HRS § 386-5. While Section 386-8 “extends [this] immunity from suit to an
injured worker’s co-employees,” see Iddings v. Mee-Lee, 82 Hawai‘i 1, 6, 919 P.2d
263, 268 (1996), “[a]nother employee of the same employer shall not be relieved
of his liability as a third party, if the personal injury is caused by his wilful and
wanton misconduct.” HRS § 386-8. Further, while the Hawaii Workers’
Compensation Act bars claims based on negligence, it does not bar claims based
on the intentional conduct of an employer or employee because such claims do not
arise out of “accidents” related to employment. See, e.g., You v. Longs Drugs
Stores California, LLC, 937 F. Supp. 2d 1237, 1260 (D. Haw. 2013) (“[A]
supervisor may have ‘co-employee’ (not employer) liability for ‘wilful and wanton
conduct’ under section 386-8 of Hawaii Revised Statutes.”) (citing Iddings v. MeeLee, 82 Hawai‘i 1, 21, 919 P.2d 263, 283 (1996)); Hughes v. Mayoral, 721 F.
Supp. 2d 947, 964 (D. Haw. 2010); Kahale v. ADT Auto. Servs., Inc., 2 F. Supp. 2d

12

1295, 1302 (D. Haw. 1998) (citing Furukawa v. Honolulu Zoological Soc., 85
Hawai‘i 7, 18, 936 P.2d 643 (1997)).
Ragasa alleges in Count VI that Defendants “maliciously, knowingly,
intentionally, recklessly, willfully, deliberately, engaged in outrageous conduct,
without regard for the rights, interests, and well-being of Plaintiff, and thereby
caused Plaintiff to suffer severe and/or extreme emotional distress.” Complaint
¶ 38. Ragasa sufficiently alleges “willful and wanton” conduct, including, for
example, that the individual defendants conspired with one another to retaliate
against him by:
instructing KFD supervisors to “target” [Ragasa] for
disciplinary action because [Ragasa] was causing trouble for
KFD, and by encouraging employees to assert allegations of
misconduct against [Ragasa] that were false, misleading, and/or
exaggerated. Many such allegations were used by Defendants
to initiate disciplinary proceedings against [Ragasa], place him
on administrative leave, and were later dropped, amended or
not sustained.
Complaint ¶ 18; see also Complaint ¶ 19 (“Defendants actions were oppressive
malicious, willful and intentional, and warrant an award of punitive damages[.]”).
The Court also agrees with Ragasa that his Complaint does not preclude an
alternative claim that individual employee’s actions were “willful and wanton,”
and, therefore, not within the scope of their employment. See Fed.R.Civ.P. 8(d)(2)
and (d)(3) (authorizing the pleading of alternative or inconsistent theories or

13

defenses). Accordingly, the Hawaii Workers’ Compensation Act does not bar
Ragasa’s IIED claim.
B.

Leave to Amend Is Granted To Allege Outrageous Conduct

Ragasa cannot maintain his IIED claim as currently set forth, however,
because the alleged conduct does not meet the threshold for outrageousness. “The
elements of the tort of intentional infliction of emotional distress 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.”
Hac v. Univ. of Haw., 102 Hawai‘i 92, 106-07, 73 P.3d 46, 60-61 (2003) (adopting
IIED standard from Restatement (Second) of Torts). “The question whether the
actions of the alleged tortfeasor are . . . outrageous is for the court in the first
instance, although where reasonable persons may differ on that question it should
be left to the jury.” Nagata v. Quest Diagnostics Inc., 303 F. Supp. 2d 1121, 1127
(D. Haw. 2004).
The Restatement describes what constitutes “outrageous” conduct:
It has not been enough that the defendant has acted with an
intent which is tortious or even criminal, or that he has intended
to inflict emotional distress, or even that his conduct has been
characterized by “malice,” or a degree of aggravation which
would entitle the plaintiff to punitive damages for another tort.
Liability has been found only where the conduct has been so
outrageous in character, and so extreme in degree, as to go
beyond all possible bounds of decency, and to be regarded as

14

atrocious, and utterly intolerable in a civilized community.
Generally, the case is one in which the recitation of the facts to
an average member of the community would arouse his
resentment against the actor, and lead him to exclaim,
“Outrageous!”
Restatement (Second) of Torts § 46, cmt. d. (1965).
An IIED claim cannot be sustained by “threats, annoyances,
petty oppressions, or other trivialities.” Young v. Allstate Ins.
Co., 119 Hawai‘i 403, 425, 198 P.3d 666, 688 (2008) (quoting
Restatement (Second) of Torts § 46 cmt. d); see also Bragalone
v. Kona Coast Resort Joint Venture, 866 F. Supp. 1285, 1294
(D. Haw. 1994). Indeed, a plaintiff “must necessarily be
expected and required to be hardened to a certain amount of
rough language, and to occasional acts that are definitely
inconsiderate and unkind.” Restatement (Second) of Torts § 46
cmt. d.
Hughes, 721 F. Supp. at 965. See also Restatement (Second) of Torts § 46, cmt. d.
(“There is no occasion for the law to intervene in every case where some one’s
feelings are hurt. There must still be freedom to express an unflattering opinion,
and some safety valve must be left through which irascible tempers may blow off
relatively harmless steam.”).
This district court has explained the particularly high threshold for
“outrageous” conduct in the context of employment cases:
Hawaii’s definition of outrageous conduct creates a very high
standard of conduct in the employment context. See Ross v.
Stouffer Hotel Co., 76 Hawai‘i 454, 879 P.2d 1037, 1048
(1994) (granting summary judgment for employer on
employee’s IIED claim); Ingle v. Liberty House, Inc., Civil No.

15

94-0787(3), 1995 WL 757746, at *4 (Haw. Cir. Ct. Oct. 12,
1995) (noting, “In Ross, the Hawai‘i Supreme Court recently
has set an extremely high, standard for such a claim in the
employment context[.]”). Under Hawai‘i law, termination
alone is not sufficient to support an IIED claim; rather, what is
necessary is a showing of something outrageous about the
manner or process by which the termination was accomplished.
As stated in Ingle, “[a]lthough intentional infliction claims
frequently are asserted in connection with employee dismissals,
recovery is rare. Imposition of liability on this tort theory is
likely only in the unusual case when an employer deliberately
taunts an employee, or when an employer handles an employee
with outrageous insensitivity.” Ingle, 1995 WL 757746, at *4
(quotation omitted; emphasis added); see also Courtney v.
Canyon Television & Appliance Rental, Inc., 899 F.2d 845, 852
(9th Cir. 1990) (“[d]ischarge, without evidence of more, does
not create a case for emotional distress.”).
Ho-Ching v. City & Cnty. of Honolulu, 2009 WL 1227871, at *12 (D. Haw. Apr.
29, 2009). See also Simmons v. Aqua Hotels & Resorts, Inc., 130 Hawai‘i 325,
332, 310 P.3d 1026, 1033 (App. 2013) (“Our case law is clear that termination
alone, even if based on discrimination, is not sufficient to support an IIED claim
without a showing of something outrageous about the manner or process of
termination.”); Shoppe v. Gucci Am., Inc., 94 Hawai‘i 368, 387, 14 P.3d 1049,
1068 (2000) (employee’s allegations of termination based on age discrimination
and of manager’s “vicious” verbal attack, shouting, and criticism in front of other
employees were insufficient to create a genuine issue of fact of outrageousness);

16

Ross, 76 Hawai‘i at 465, 879 P.2d at 1048 (termination based on alleged marital
status discrimination was insufficient to sustain IIED claim).
On the other hand, courts have found that “sexually harassing behavior,
racial slurs, and accusations of criminal conduct could all possibly be considered
outrageous conduct,” see Nagata, 303 F. Supp. 2d at 1128 (citing Lapinad v.
Pacific Oldsmobile-GMC, Inc., 679 F. Supp. 991, 996 (D. Haw. 1988)), and
conduct that does not fit into any of these categories may still raise a question of
fact. Cf. id. (determining that defendant’s delay in disclosing error in drug test
could be considered outrageous); Machado v. Int’l Ass’n of Heat & Frost
Insulators & Asbestos Workers, 454 F. Supp. 2d 1056, 1063 (D. Haw. 2006)
(Denying motion to dismiss IIED claim against individual capacity defendant who
“filed a false police report,” “made a false report defaming and accusing Plaintiff
of assaulting and robbing him at an illegal cockfight,” “announced these false
accusations at a general union meeting,” and “announced that he filed for a
temporary restraining order against Plaintiff.”); Weaver v. A-American Storage
Mgmt. Co., 2011 WL 97651, at *8 (D. Haw. Jan. 12, 2011) (“Intentionally
discriminating against an employee based on race, terminating him after only a few
weeks in violation of federal and state law, evicting him, taking his residence and
car, forcing him to remove his belongings to the street, and later giving false

17

information to prospective employers could constitute ‘outrageous’ conduct for
purposes of IIED.”).
Even assuming the truth of the allegations in the complaint, Ragasa has not
met the “very high standard of conduct in the employment context” necessary to
state a claim for IIED. Ho-Ching, 2009 WL 1227871, at *12. Without more, his
allegations that the individual capacity defendants targeted, conspired, harassed,
and disciplined him in retaliation for his reports of improper conduct by coworkers
are not “so outrageous in character as to go beyond all possible bounds of decency,
and to be regarded as atrocious, and utterly intolerable in a civilized community.”
Restatement § 46, cmt. d. Accordingly, Count VI is dismissed for failure to state a
claim for IIED.
Because amendment may be possible, and in light of the Court’s specific
discussion of IIED claims in the employment context, Ragasa is GRANTED leave
to amend Count VI. In doing so, however, the Court does not grant leave to add
new parties, claims or theories of liability.
CONCLUSION
On the basis of the foregoing, the Court GRANTS Defendant Kalani
Vierra’s Motion for Judgment on the Pleadings [dkt. no. 56]; Defendant Norman
Hunter’s Joinder [dkt. no. 58]; and Defendant Robert F. Westerman’s Joinder [dkt.

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no. 60]. Ragasa is GRANTED until October 2, 2015 to file an amended complaint
in accordance with this order.
IT IS SO ORDERED.
DATED: September 15, 2015 at Honolulu, Hawai’i.

Carl A. Ragasa v. County of Kaua’i, et al.; Civil No. 14-00309 DKW BMK;
ORDER GRANTING INDIVIDUAL CAPACITY DEFENDANTS’
MOTION FOR JUDGMENT ON THE PLEADINGS

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