Klingman v. County of Maui Police Department

Filing 15

ORDER GRANTING DEFENDANT COUNTY OF MAUI, MAUI POLICE DEPARTMENT'S MOTION TO DISMISS COMPLAINT FILED ON JULY 30, 2016 re 8 , 14 - Signed by JUDGE ALAN C. KAY on 11/29/2016. "Plaintiff must file any amended complain t within thirty days of the entry of this Order or else judgment will be entered against her and this action will be closed. Any amended complaint must correct the deficiencies noted in this Order or Plaintiff's claims may be dismissed with prej udice." (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

MOLLIE M. KLINGMAN,
Plaintiff,
vs.
THE COUNTY OF MAUI, MAUI
POLICE DEPARTMENT;
JOHN DOES 1-10; JOHN DOE
CORPORATIONS 1-10; JOHN DOE
PARTNERSHIPS 1-10; AND JOHN
DOE GOVERNMENT ENTITIES 1-10
Defendants.

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ORDER GRANTING DEFENDANT COUNTY OF MAUI, MAUI POLICE
DEPARTMENT’S MOTION TO DISMISS COMPLAINT FILED ON JULY 20, 2016
For the reasons set forth below, the Court GRANTS
Defendant County of Maui, Maui Police Department’s Motion to
Dismiss Complaint Filed on July 20, 2016, ECF No. 8, with leave
to amend.
FACTUAL BACKGROUND
Plaintiff Mollie Klingman (“Plaintiff”) began working
for the Maui Police Department in 1987.

Compl. ¶ 11, ECF No. 1.

In 2011, Plaintiff was promoted to Captain and assigned as
“Support Services Bureau - Technical Services Captain.”
¶ 12.

Id.

While in this role, Plaintiff was assigned to be the

Acting Assistant Chief/Inspector of Support Services Bureau over

25 times allowing her to become “very experienced at running the
Support Services Bureau.”

Id. ¶¶ 12-13.

In February of 2013, Plaintiff “transferred to a
position as Lahaina District Commander.”

Id. ¶ 14.

In 2013,

Plaintiff also applied for the position of Police Inspector, but
was not selected.

Id. ¶ 15.

Plaintiff was informed by the

Assistant Chief of Support Services Bureau “that she should not
have bothered to submit an application because the position was
going to be filled by Dean Rickard (a male).”

Id. ¶ 16.

Dean

Rickard (“Deputy Chief Rickard”) was selected for the Police
Inspector position and has since been promoted to Deputy Chief
of Police.

Id. ¶ 17.
On or around September 24-25, 2014, Deputy Chief

Rickard informed Officer Rusty Iokia, a Maui Police Department
union representative, that the next Assistant Chief would be
Captain John Jakubczak (“Captain Jakubczak”).

Id. ¶¶ 19-20.

Captain Jakubczak “had socialized” with Chief of Police Tivoli
S. Faaumu and was a classmate of Deputy Chief Rickard.
21.

Id. ¶

Deputy Chief Rickard and Captain Jakubczak “lunched

together nearly every day.”

Id.

On or around November 6, 2014, Plaintiff “submitted an
application for a vacant Police Inspector position (also known
as Assistant Chief).”

Id. ¶ 22.

The position was with the

Support Services Bureau at which Plaintiff had previously been
2

assigned as Acting Assistant Chief/Inspector more than 25 times.
Id.

Plaintiff participated in a promotion board interview for

the Police Inspector/Assistant Chief position, which lasted 23
minutes.

Id.

¶ 23.

Police Chief Faaumu and Deputy Chief

Rickard were the board members.

Id.

“The interview was

unstructured and informal,” and Plaintiff was “asked very
limited questions” regarding the open position.

Id.

¶ 24.

The vacant Police Inspector position was given to
Captain Jakubczak, “a less experienced and less qualified male”
who also had “less seniority” than Plaintiff.

Id. ¶ 25.

Plaintiff requested a meeting with Chief Faaumu regarding the
promotion process, which Deputy Chief Rickard also attended.
Id. ¶ 26.

At the meeting, Deputy Chief Rickard “became very

confrontational” with Plaintiff.

Id.

PROCEDURAL BACKGROUND
On July 20, 2016, Plaintiff filed her Complaint
against the County of Maui, Maui Police Department
(“Defendant”).
Defendant:

The Complaint raises four counts against

Count I-Title VII Sex Discrimination; Count II-

Violation of the Hawaii Constitution, Article XVI; Count IIINegligent Infliction of Emotional Distress (“NIED”); and Count
IV-Intentional Infliction of Emotional Distress (“IIED”).
Compl. ¶¶ 28-48.

3

On August 25, 2016, Defendant filed a Motion to
Dismiss Complaint Filed on July 20, 2016 (“Motion to Dismiss”).
ECF No. 8.

On November 7, 2016, Plaintiff filed her Memorandum

in Opposition to Defendant County of Maui Police Department’s
Motion to Dismiss Complaint Filed on July 20, 2016 (“Opposition”
or “Opp.”).

ECF No. 12.

Defendant filed its Reply Memorandum

in Support of its Motion to Dismiss Complaint Filed July 20,
2016 (“Reply”) on November 14, 2016.

ECF No. 13.

The Court held a hearing on Defendant’s Motion to
Dismiss on November 28, 2016.
STANDARD
I.

Motion to Dismiss for Lack of Subject Matter Jurisdiction
Pursuant to Federal Rule of Civil Procedure (“Rule”)

12(b)(1), a party may move to dismiss based on a lack of subject
matter jurisdiction.

“[T]he party asserting subject matter

jurisdiction has the burden of proving its existence.”

Robinson

v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation
omitted).

“Failure to exhaust administrative remedies is

properly considered under a 12(b)(1) motion to dismiss where
exhaustion is required by statute.”

Dettling v. United States,

948 F. Supp. 2d 1116, 1128 (D. Haw. 2013).
II.

Motion to Dismiss for Failure to State a Claim
Rule 12(b)(6) authorizes the Court to dismiss a

complaint that fails “to state a claim upon which relief can be
4

granted.”

Fed. R. Civ. P. 12(b)(6).

Rule 12(b)(6) is read in

conjunction with Rule 8(a), which requires only “a short and
plain statement of the claim showing that the pleader is
entitled to relief.”

Fed. R. Civ. P. 8(a)(2).

The Court may

dismiss a complaint either because it lacks a cognizable legal
theory or because it lacks sufficient factual allegations to
support a cognizable legal theory.

Balistreri v. Pacifica

Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1988).
In resolving a Rule 12(b)(6) motion, the Court must
construe the complaint in the light most favorable to the
plaintiff and accept all well-pleaded factual allegations as
true.

Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783

(9th Cir. 2012).

The complaint “must contain sufficient factual

matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678

(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).

“The plausibility standard . . . asks for more than a

sheer possibility that a defendant has acted unlawfully.”

Id.

“Where a complaint pleads facts that are ‘merely consistent
with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’”
Id. (quoting Twombly, 550 U.S. at 557).

“In considering a

motion to dismiss, the court is not deciding whether a claimant
will ultimately prevail but rather whether the claimant is
5

entitled to offer evidence to support the claims asserted.”
Tedder v. Deutsche Bank Nat. Trust Co., 863 F. Supp. 2d 1020,
1030 (D. Haw. 2012) (citing Twombly, 550 U.S. at 563 n.8).
The Court should grant leave to amend unless the
pleading cannot be cured by new factual allegations.

OSU

Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).
Under Rule 12(b)(6), review is generally limited to
the contents of the complaint.

Sprewell v. Golden State

Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v.
Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996).

However, courts

may “consider certain materials—documents attached to the
complaint, documents incorporated by reference in the complaint,
or matters of judicial notice—without converting the motion to
dismiss into a motion for summary judgment.”

United States v.

Ritchie, 342 F.3d 903, 908 (9th Cir. 2003).
DISCUSSION
I.

Defendant is the County of Maui
Defendant requests that the Court dismiss the Maui

Police Department as a defendant because Hawaii police
departments are not independent legal entities from their
respective counties and thus improper parties to a lawsuit.
Def.’s Mem. in Support of Motion to Dismiss (“Mem.”), at 5; see
also Fisher v. Kealoha, 869 F. Supp. 2d 1203, 1214 (D. Haw.
2012) (“Courts in the Ninth Circuit generally have treated
6

police departments as part of a municipality.”); Bartolome v.
City & Cty. of Honolulu Police Dep’t, Civ. No. 06-00176 SOM-LEK,
2007 WL 4179376, at *2 (D. Haw. Nov. 27, 2007) (dismissing
claims against the Honolulu Police Department on the basis that
it was not an independent legal entity).
In her Opposition, Plaintiff “agrees that the Maui
Police Department is not an independent legal entity from the
County of Maui.”

Opp., at 5.

Plaintiff maintains that she “did

not independently name Maui Police Department” as a defendant.
Id.

Accordingly, the Court need not dismiss the Maui Police

Department.

The Court notes that, as agreed to by Plaintiff,

the proper Defendant in the instant case is the County of Maui. 1
II.

Count I: Title VII Discrimination
Defendant argues in the first instance that any sex

discrimination claim arising before May 9, 2014 is untimely.
Mem., at 7-8.

Prior to filing a Title VII claim in federal

district court, a plaintiff must exhaust administrative
remedies.
Cir. 2001).

Sommatino v. United States, 255 F.3d 704, 707 (9th
In particular, a plaintiff must file a charge with

the Equal Employment Opportunity Commission (“EEOC”).

Where, as

here, a plaintiff has filed a charge with both the EEOC and a

1

Given the foregoing, the Court need not take judicial
notice of Exhibit A to the Trenholme Declaration (Excerpts from
the County of Maui Charter).
7

state or local agency (i.e., the Hawaii Civil Rights
Commission), the charge must be filed “within three hundred days
after the alleged unlawful employment practice occurred.”
U.S.C. § 2000e-5(e)(1).

42

“This period is not jurisdictional;

instead, it is a statute of limitations.”

Clemmons v. Hawaii

Med. Servs. Ass’n, 836 F. Supp. 2d 1126, 1133 (D. Haw. 2011).
Unlawful employment practices that occurred prior to the 300-day
period are therefore time-barred and cannot serve as the basis
of Plaintiff’s claims.

See id. at 1136.

Here, Plaintiff filed her Charge of Discrimination
with the Hawaii Civil Rights Commission and the EEOC on March 5,
2015.

Trenholme Decl. Ex. B. 2

5, 2015 is May 9, 2014.

Three hundred days before March

Thus, unlawful employment practices

occurring prior to May 9, 2014 are time-barred.
On this basis, Defendant argues that Plaintiff’s
application for the position of Police Inspector in 2013, Compl.
¶ 15, is time-barred, Mem., at 7.

Plaintiff does not dispute

that such a claim is time-barred and instead maintains that she
is not litigating the 2013 application for employment.
5.

Opp., at

There appearing to be no disagreement, the Court determines
2

The Court takes judicial notice of Plaintiff’s EEOC
Charge of Discrimination as a public record from an
administrative body. See Decampo v. OS Rest. Servs., LLC, Civ.
No. 14-00092 ACK-BMK, 2014 WL 1691628, at *4 (D. Haw. Apr. 29,
2014); Onodera v. Kuhio Motors Inc., Civ. No. 13-00044 DKW-RLP,
2013 WL 4511273, at *2 (D. Haw. Aug. 23, 2013).
8

that events occurring before May 9, 2014 may not serve as a
basis for Plaintiff’s claims.
The Court next turns to the substance of Plaintiff’s
Title VII allegations.

Defendant claims that Plaintiff fails to

state a plausible claim for sex discrimination because the
Complaint does not contain direct evidence of discrimination and
fails to plead facts necessary to prove a disparate treatment
claim absent direct evidence.

Mem., at 8-10.

Plaintiff does

not directly address Defendant’s argument, but contends that she
has presented sufficient facts to set forth her claim.

Opp., at

5-6. 3
As Defendant notes, Plaintiff appears to be asserting
a sex discrimination claim based on disparate treatment for her
non-selection for a promotion to the Police Inspector position
in 2014.

Compl. ¶¶ 22-25.

With respect to a disparate

treatment claim, “[t]o establish a violation of Title VII, a
plaintiff may offer direct evidence of discrimination.”
Jinadasa v. Brigham Young Univ.-Hawaii, Civ. No. 14-00441 SOMBMK, 2015 WL 3407832, at *3 (D. Haw. May 27, 2015) (citing Lyons
v. England, 307 F.3d 1092, 1112 (9th Cir. 2002)).

The Ninth

Circuit has stated that “[d]irect evidence is evidence ‘which,
3

As noted by Defendant, Reply at 1-2, Plaintiff also
incorrectly states the appropriate standard for a 12(b)(6)
Motion to Dismiss, ignoring the Iqbal/Twombly holdings and
citing to the Twombly dissent. See Opp., at 4.
9

if believed, proves the fact [of discriminatory animus] without
inference or presumption.’”

Coghlan v. Am. Seafoods Co. LLC.,

413 F.3d 1090, 1095 (9th Cir. 2005) (second alteration in
original) (quoting Godwin v. Hunt Wesson, Inc., 150 F.3d 1217,
1221 (9th Cir. 1998)).

“Direct evidence typically consists of

clearly sexist, racist, or similarly discriminatory statements
or actions by the employer.”

Id.

Plaintiff’s Complaint does

not include factual allegations relating to direct evidence of
discrimination for her failure to promote in 2014.
Where direct evidence of discrimination is lacking, “a
Title VII plaintiff may prove his case through circumstantial
evidence, following the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).”
307 F.3d at 1112.

Lyons,

Under the McDonnell Douglas framework, to

establish a prima facie case of disparate treatment under Title
VII, Plaintiff must demonstrate that: 1) she belongs to a
protected class; 2) she was qualified for the position she
applied for and performed her job satisfactorily; 3) she
suffered an adverse employment decision; and 4) other “similarly
situated” employees not belonging to the protected class did not
experience similar adverse employment decisions.

Cornwell v.

Electra Cent. Credit Union, 439 F.3d 1018, 1028 (9th Cir. 2006)
(citing McDonnell, 411 U.S. 792).

10

In Swierkiewicz v. Sorema N.A., the Supreme Court held
that “[t]he prima facie case under McDonnell Douglas, . . . is
an evidentiary standard, not a pleading requirement.”
506, 510 (2002).

534 U.S.

The Supreme Court rejected the Second

Circuit’s holding that a Title VII complaint requires greater
“particularity,” and also held, “In addition, under a notice
pleading system, it is not appropriate to require a plaintiff to
plead facts establishing a prima facie case because the
McDonnell Douglas framework does not apply in every employment
discrimination case.”

Id. at 511.

The Court pointed out that

the plaintiff may be able to produce direct evidence of
discrimination, and noted that subsequent discovery might
uncover such evidence.

Id. at 511-12.

In Twombly, however, while referencing Swierkiewicz,
the Supreme Court held that a complaint must plead “enough facts
to state a claim to relief that is plausible on its face.”
U.S. at 570.

534

The Supreme Court stated that, “Because the

plaintiffs here have not nudged their claims across the line
from conceivable to plausible, their complaint must be
dismissed.”

Id.

Accordingly, the Court concludes that with respect to
a Rule 12(b)(6) motion to dismiss a Title VII claim, Plaintiff
need not establish a prima facie case.

Nonetheless, the Court

may look to the required elements to determine whether Plaintiff
11

has asserted a plausible claim for relief as required by Iqbal
and Twombly.
Defendant does not argue that Plaintiff has failed to
plead facts sufficient to support the first three McDonnell
Douglas elements and it is clear that the Complaint is
sufficient with respect to these three elements.

Indeed, the

Complaint includes allegations that Plaintiff belongs to a
protected class, that she was qualified for the Police Inspector
position and had performed her job duties successfully, and that
she failed to receive the promotion.

See Compl. ¶¶ 25, 29-32.

Turning to the fourth McDonnell Douglas factor,
Defendant maintains that Plaintiff “failed to establish that
there were similarly situated male employees.”

Mem., at 8-9.

Specifically, Defendant notes that Plaintiff’s Complaint states
that she held the position of “Lahaina District Commander” when
she applied for the Police Inspector position, and that
Plaintiff alleges that “Captain” Jakubczak instead was given the
position.

Id.

According to Defendant, Plaintiff failed to

allege sufficient facts demonstrating that these two positions
were similarly situated and that “she and Jakubczak had similar
job duties and responsibilities and/or displayed similar
conduct.”

Id. at 9.
The Court agrees with Defendant.

Employees “are

similarly situated when they have similar jobs and display
12

similar conduct.”

Vasquez v. Cty. of Los Angeles, 349 F.3d 634,

641 (9th Cir. 2003), as amended (Jan. 2, 2004).

Here, the

Complaint is devoid of any facts that Captain Jakubczak and
Plaintiff were similarly situated.

Indeed, as noted by

Defendant, Plaintiff has failed to allege that the “Captain” and
“Lahaina District Commander” roles were similar or that
Plaintiff and Captain Jakubczak displayed similar conduct.
Moreover, although the Complaint states that Plaintiff had
previously held the job of Support Services Bureau-Technical
Services Captain, Compl. ¶ 12, the Complaint does not provide
any specifics as to how this role compared to Captain
Jacubczak’s.

While the Complaint alleges that Captain Jakubczak

was a “less experienced and less qualified male” who also had
“less seniority than Plaintiff,” Compl. ¶ 25, it provides no
indication that Captain Jacubczak and Plaintiff were in a
similar position at the time they applied for the vacant Police
Inspector position.
Under these circumstances, the Court finds that
Plaintiff has failed to “nudge[] [her] claims across the line
from conceivable to plausible.”

Twombly, 534 U.S. at 570.

Accordingly, the Court DISMISSES Count I of the Complaint
WITHOUT PREJUDICE and with leave to amend.

See Mahoe v.

Operating Engineers Local Union No. 3 of the International Union
of Operating Engineers, AFL-CIO, Civ. No. 13-00186 HG-BMK, 2013
13

WL 5447261, at *5 (D. Haw. Sept. 27, 2013) (dismissing disparate
treatment claim where the complaint “lack[ed] sufficient
information to show that the position of Recording Correspondent
Secretary,” the position of an employee who did not suffer the
adverse employment decision suffered by plaintiff, “was similar
to [plaintiff’s] position of Treasurer”).
The Court notes that Defendant also argues that
Plaintiff’s Complaint appears to indicate that Captain Jacubczak
was hired over Plaintiff because of his friendship with Deputy
Chief Rickard and not because of his gender.
(citing Compl. ¶¶ 21-22).

Mem., at 9-10

Defendant is correct that Captain

Jacubczak’s friendship with Deputy Chief Rickard would not be
within the scope of Title VII.

Notwithstanding, Plaintiff may

still plausibly allege a claim for sex discrimination if the
claim comports with the McDonnell Douglas factors discussed
above.

Defendant cites to Nosie v. Association of Flight

Attendants - CWA, AFL-CIO to argue that Plaintiff’s Title VII
claim should be dismissed on this basis.

No. CIV 10-00062 ACK-

LEK, 2010 WL 4812744, at *8 (D. Haw. Nov. 18, 2010), aff’d sub
nom. Nosie v. Ass’n of Flight Attendants-CWA, 472 F. App’x 802
(9th Cir. 2012).

The Court notes that Nosie involved a

discrimination claim under Section 703(c)(1) of Title VII which
applies to labor organizations.

Id. at *7.

The test for a

prima facie claim of discrimination applied by the Court in
14

Nosie differs from the McDonnell Douglas factors discussed
above.
III. Count II: Violation of the Hawaii Constitution, Article XVI
Defendant argues that the Court lacks subject matter
jurisdiction over Count II, Plaintiff’s state constitutional
claim, because she failed to exhaust her administrative
remedies.

Mem., at 11.

II of the Complaint.

Defendant stipulates to dismiss Count

Opp., at 7.

Accordingly, Count II of the

Complaint is DISMISSED WITH PREJUDICE. 4
IV.

Counts III and IV: Negligent Infliction of Emotional
Distress and Intentional Infliction of Emotional Distress
Plaintiff’s Complaint includes state law claims for

NIED and IIED in connection with Defendant’s allegedly
discriminatory conduct.

Defendant argues that the NIED and IIED

claims are barred by the exclusivity provision of Hawaii’s
Workers’ Compensation Law, Hawaii Revised Statues (“HRS”) § 3865.

Mem., at 14-18.

The Court agrees.

HRS Chapter 386 contains Hawaii’s Workers’
Compensation Law.

Section 386-5, the Law’s exclusivity

provision, provides:
The rights and remedies herein granted to an
employee or the employee’s dependents on account
4

Because Plaintiff has stipulated to the dismissal of
Count II, the Court need not take judicial notice of Exhibit C
to the Trenholme Declaration (County of Maui Rules of the Civil
Service Commission).
15

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.
The Hawaii Supreme Court has held that in general, “the workers’
compensation scheme serves to bar a civil action for physical
and emotional damages resulting from work-related injuries and
accidents.”

Nelson v. Univ. of Hawaii, 38 P.3d 95, 112 (Haw.

2001).
Pursuant to HRS § 386-5, courts applying Hawaii law
have rejected employees’ NIED claims where, as here, they are
not tied to claims of sexual harassment or sexual assault.

See,

e.g., Kittleson v. Sears, Roebuck & Co., Civ. No. 10-00106 DAEBMK, 2010 WL 2485935, at *6 (D. Haw. June 15, 2010) (“Moreover,
the Court finds that workers[’] compensation is the exclusive
remedy for negligent infliction of emotional distress claims by
employees.”); Pfeffer v. Hilton Grand Vacations Co., LLC, Civ.
No. 07-00492 DAE-BAK, 2009 WL 37519, at *14 (D. Haw. Jan. 7,
2009) (granting summary judgment on employee’s NIED claim based
on the exclusivity provision); Luzon v. Atlas Ins. Agency, Inc.,
284 F. Supp. 2d 1261, 1263–64 (D. Haw. 2003) (“Under Hawaii law,
claims for negligent infliction of emotional distress are barred
16

by Haw. Rev. Stat. § 386-5, unless the claims relate to sexual
harassment or assault”).
Courts have similarly determined that IIED claims
arising out of employment discrimination are barred by HRS
§ 386-5.

In Yang v. Abercrombie & Fitch Stores, the Hawaii

Intermediate Court of Appeals (“ICA”) held that the exclusivity
provision of Hawaii’s Workers’ Compensation Law bars IIED claims
that do not relate to sexual harassment or sexual assault.
P.3d 946, 950, 955-56 (Haw. Ct. App. 2012).

284

The Ninth Circuit

has also ruled that an IIED claim related to employment
discrimination is barred by the exclusivity provision.

See

Courtney v. Canyon Television & Appliance Rental, Inc., 899 F.2d
845, 851 (9th Cir. 1990).
Courts in this district, including this Court, have
reached the same determination, holding that IIED claims not
based on sexual harassment or sexual assault are barred by
Hawaii’s Worker’s Compensation Law.

See, e.g., Kuehu v. United

Airlines, Inc., Civ. No. 16-00216 ACK-KJM, 2016 WL 4445743, at
*8 (D. Haw. Aug. 23, 2016); Souza v. Silva, Civ. No. 12-00462
HG-BMK, 2014 WL 2452579, at *16 (D. Haw. May 30, 2014); Chang v.
Straub Clinic & Hosp., Inc., Civ. No. 12-00617 DKW-RLP, 2014 WL
47947, at *9 (D. Haw. Jan. 7, 2014), reconsideration denied,
Civ. No. 12-00617 DKW, 2014 WL 712613 (D. Haw. Feb. 21, 2014).
This district court also recently made clear that the
17

exclusivity provision’s exception for sexual harassment or
sexual assault does not encompass all claims of sexual
discrimination, holding that “for purposes of section 386-5, a
sexual discrimination claim [for IIED] that does not involve
‘sexual harassment or sexual assault’ is barred by Hawaii’s
workers’ compensation exclusivity provision.”

Jinadasa, 2016 WL

355470, at *12.
Here, because Plaintiff’s discrimination claims do not
involve sexual harassment or sexual assault, her NIED and IIED
claims are barred by HRS § 386-5.

Plaintiff “agrees that the

stand-alone state law claims of negligent and intentional
infliction of emotional distress” are barred by HRS § 386-5.
Opp., at 9.

However, Plaintiff maintains that she may still

pursue emotional distress damages under Title VII.

Id.

Confusingly, while Plaintiff agrees that the state claims are
barred, she also argues that they should not be dismissed.

Id.

Plaintiff, however, appeared to retreat from this position at
the hearing, indicating agreement that the state law claims
should be dismissed.
Plaintiff is correct that the exclusivity provision
does not bar her from pursuing emotional distress damages
pursuant to her Title VII claim.

See 42 U.S.C. § 1981a(a)(1)

(providing for compensatory damages in intentional
discrimination employment cases).
18

As this district court

determined in Jinadasa, dismissing an IIED claim based on HRS
§ 386-5 “in no way bars [Plaintiff] from seeking emotional
distress damages” as part of other claims.
*12.

2016 WL 355470, at

Defendant has not argued otherwise (although Defendant

separately argues that the Title VII claim should be dismissed).
Although emotional distress damages may be available to
Plaintiff pursuant to her Title VII claim (if Plaintiff properly
amends her Title VII claim), her claims for NIED and IIED are
nonetheless barred under HRS § 386-5.

Accordingly, the Court

DISMISSES Counts III and IV of Plaintiff’s Complaint WITH
PREJUDICE.
The Court notes that even if the NIED and IIED claims
were not so barred, Plaintiff’s factual allegations are
insufficient to support these claims.

With respect to

Plaintiff’s NIED claim, this district court has previously
recognized that in Hawaii, “recovery for negligent infliction of
emotional distress by one not physically injured is generally
permitted only when there is ‘some physical injury to property
or [another] person’ resulting from the defendant’s conduct.”
Soone v. Kyo-Ya Co., 353 F. Supp. 2d 1107, 1118 (D. Haw. 2005)
(alteration in original) (quoting John & Jane Roes, 1-100 v.
FHP, Inc., 985 P.2d 661, 665 (Haw. 1999)).

Here, Plaintiff has

not alleged physical injury to herself, to anyone else, or to
property.
19

The Hawaii Supreme Court has made exceptions to the
above requirement in cases presenting “unique circumstances”
including exposure to HIV-positive blood and mishandling of
corpses.

Doe Parents No. 1 v. State, Dep’t of Educ., 58 P.3d

545, 581 (Haw. 2002), as amended (Dec. 5, 2002).

“The

exceptions have stemmed from the reasonableness standard
articulated in Rodrigues [v. State, 472 P.2d 509 (Haw. 1970)]—
i.e., where a reasonable man, normally constituted, would be
unable to adequately cope with the mental stress engendered by
the circumstances of the case.”

Soone, 353 F. Supp. 2d at 1118.

This district court has previously determined that loss of
employment, while stressful, does not fall into this exception.
Id.; see also Lee v. Hawaii Pac. Univ., Civ. No. 12-00604 BMK,
2014 WL 794661, at *10 (D. Haw. Feb. 26, 2014).

Here,

Plaintiff’s discrimination claims stem from Defendant’s alleged
failure to promote her.

The Court finds that although failure

to promote may also result in stress, as with loss of
employment, it fails to meet the reasonableness standard
articulated above.

Accordingly, Plaintiff’s NIED claim is

insufficient.
With respect to Plaintiff’s IIED claim, to prove IIED
in Hawaii, a plaintiff must show “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
20

distress to another.”
(Haw. 2003).

Hac v. Univ. of Haw., 73 P.3d 46, 60-61

“The term ‘outrageous’ has been construed to mean

‘without just cause or excuse and beyond all bounds of
decency.’”

Enoka v. AIG Hawaii Ins. Co., 128 P.3d 850, 872

(Haw. 2006) (quoting Lee v. Aiu, 936 P.2d 655, 670 n. 12 (Haw.
1997)), as corrected (Feb. 28, 2006).

Here, the conduct alleged

by Plaintiff is insufficient to meet this standard.

See

Jinadasa, 2016 WL 355470, at *13 (noting that plaintiff’s
discrimination-related claims failed to “describe sufficiently
outrageous conduct justifying an intentional infliction of
emotional distress claim, which may only be established in cases
involving particularly extreme conduct”).
V.

Punitive Damages
Plaintiff’s Complaint requests an award of punitive

damages.

Compl. ¶ 48(d).

Defendant argues Plaintiff cannot

recover punitive damages against the County of Maui.
21.

Mem., at

Plaintiff does not address Defendant’s arguments in her

Opposition.
As Defendant points out, Title VII precludes an award
of punitive damages against Defendant.

Pursuant to 42 U.S.C.

§ 1981a(b)(1), which applies to Title VII claims,
A complaining party may recover punitive damages
under this section against a respondent (other
than a government, government agency or political
subdivision) if the complaining party
demonstrates that the respondent engaged in a
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discriminatory practice or discriminatory
practices with malice or with reckless
indifference to the federally protected rights of
an aggrieved individual.
(Emphasis added).

Here, because Defendant is a “government,

government agency, or political subdivision,” punitive damages
are not available.

See Kaulia v. Cty. of Maui, Civ. No. 05-

00290 JMS-LEK, 2006 WL 4660130, at *6-7 (D. Haw. May 24, 2006)
(noting punitive damages not available to a municipality under
Title VII);

Mayfield v. Cty. of Merced, No. CV F 13-1619 LJO

BAM, 2014 WL 2574791, at *17 (E.D. Cal. June 9, 2014) (citing 42
U.S.C. § 1981a(b)(1) and noting “Title VII specifically exempts
public entities from punitive damages”), report and
recommendation adopted, No. 1:13-CV-1619 LJO-BAM, 2014 WL
3401177 (E.D. Cal. July 10, 2014).
Since Plaintiff’s only claim not subject to dismissal
with prejudice is her Title VII claim, the Court HOLDS that
Plaintiff may not seek punitive damages against Defendant in any
amended complaint filed pursuant to this Order.

The Court also

notes, however, that punitive damages are not available under
Hawaii law against municipalities as a matter of public policy.
See Roberts v. City & Cty. of Honolulu, No. CV 07-00391 DAE-KSC,
2008 WL 563475, at *8 (D. Haw. Mar. 3, 2008); Lauer v. Young
Men’s Christian Ass’n, 57 P.2d 1334, 1342 (Haw. 1976).

22

CONCLUSION
For the foregoing reasons, the Court GRANTS
Defendant’s Motion to Dismiss Complaint Filed on July 20, 2016.
The Court DISMISSES WITHOUT PREJUDICE Count I (Title VII
Discrimination) of Plaintiff’s Complaint.

The Court DISMISSES

WITH PREJUDICE Count II (Violation of the Hawaii Constitution,
Article XVI), Count III (NIED), and Count IV (IIED) of
Plaintiff’s Complaint.

The Court additionally HOLDS that events

occurring before May 9, 2014 may not serve as a basis for
Plaintiff’s claims of discrimination and HOLDS that Plaintiff
may not seek punitive damages from Defendant.

Finally, the

Court notes that the Maui Police Department is not a defendant
independent from the County of Maui in the instant case.
Plaintiff must file any amended complaint within
thirty days of the entry of this Order or else judgment will be
entered against her and this action will be closed.

Any amended

complaint must correct the deficiencies noted in this Order or
Plaintiff’s claims may be dismissed with prejudice.

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IT IS SO ORDERED.
DATED:

Honolulu, Hawaii, November 29, 2016.

________________________________
Alan C. Kay
Sr. United States District Judge

Klingman v. County of Maui, Maui Police Department, Civ. No. 16-00399 ACK-RLP
Order Granting Defendant County of Maui, Maui Police Department’s Motion to
Dismiss Complaint Filed on July 20, 2016

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