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Marie J. Kosegarten v. the Department of the Prosecuting Attorney

November 29, 2011


The opinion of the court was delivered by: Leslie E. Kobayashi United States District Judge


On August 11, 2011, Defendants Department of the Prosecuting Attorney, County of Maui ("the Department"); Benjamin M. Acob, in his individual capacity ("Defendant Acob"); and Timothy T. Tate, in his individual capacity ("Defendant Tate", all collectively, "Defendants")*fn1 filed the instant Motion for Judgment on the Pleadings on Certain Claims ("Motion"). Plaintiff Marie J. Kosegarten ("Plaintiff") filed her memorandum in opposition on October 19, 2011, and Defendants filed their reply on October 25, 2011. This matter came on for hearing on November 9, 2011. Appearing on behalf of Defendants was Cheryl Tipton, Esq., and appearing on behalf of Plaintiffs were Michael Green, Esq., Richard Gronna, Esq., and Caprice Itagaki, Esq. After the hearing, the parties submitted, and this Court approved, a stipulation dismissing various portions of the First Amended Complaint with prejudice, rendering part of the instant Motion moot. 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 AS MOOT for the reasons set forth below. In addition, Plaintiff's request for leave to file a Second Amended Complaint is HEREBY GRANTED.


Plaintiff filed the instant employment discrimination and retaliation action on June 4, 2010. She filed the First Amended Complaint on June 23, 2010. Plaintiff states that, on or about October 17, 2008, June 10, 2009, and July 9, 2009, she timely filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the Hawaii Civil Rights Commission ("HCRC"). The EEOC and HCRC each provided a right to sue letter for her claims. Each letter is dated March 8, 2010. Plaintiff states that she sent a Notice of Claim pursuant to Haw. Rev. Stat. § 46-72 on June 2, 2010. Plaintiff therefore asserts that she has met all of the conditions precedent for this action, as required under 42 U.S.C. § 2000e. [First Amended Complaint at ¶¶ 10-12.]

At all relevant times, Defendant Acob was the County's Chief Prosecuting Attorney ("County Prosecutor") and Defendant Tate was a County deputy prosecuting attorney ("DPA"). [Id. at ¶¶ 7-8.]

I. Factual Background

The Department originally hired Plaintiff as a DPA on November 12, 1991. Plaintiff remained in that position until she resigned in August 1997 to relocate to the mainland. On April 1, 2000, Plaintiff returned to Hawai`i, and the Department hired her as a felony screening DPA. Plaintiff was promoted to District Court Supervisor in 2003, and she received the Department's Manager of the Year award in July 2003. Plaintiff received another promotion in 2005 and began prosecuting felony cases. In or around 2006, Plaintiff was one of the Judicial Selection Commission's finalists for a judgeship in the Second Circuit District Court. [Id. at ¶¶ 13-19.]

Defendant Acob became the County Prosecutor around the end of 2006 or early 2007. Plaintiff alleges that, in January 2007, Defendant Acob reassigned her to the District Court Supervisor position without reason. [Id. at ¶¶ 20-21.]

Plaintiff alleges that, in September 2007, Defendant Tate asked Plaintiff to do him a favor by promoting Jacki Jura, a DPA under Plaintiff's supervision with whom Defendant Tate was romantically involved. Plaintiff refused because Ms. Jura was not qualified for a promotion, and Plaintiff reported Defendant Tate's request to his supervisor. Shortly after the report, Plaintiff learned that Defendant Tate began referring to Plaintiff as a "lesbian" and a "butch" to the Department's staff, including Ms. Jura. Plaintiff alleges that she was ridiculed and mocked in the office as a result. [Id. at ¶¶ 22-25.]

On October 29, 2007, Defendant Tate demanded that Plaintiff recommend DPA Yukari Murakami, with whom he was romantically involved at the time, for a promotion. Plaintiff declined because Ms. Murakami was not qualified for the promotion. Plaintiff told Defendant that his requests were improper and that he should speak to Defendant Acob. On the same date, or closely thereafter, Plaintiff attended a management meeting with Defendant Acob, Personnel Manager Wayne Steel, and all of the managing DPAs. Plaintiff reported Defendant Tate's demands, but no action was taken. According to Plaintiff, immediately after the meeting, Defendant Tate was informed about Plaintiff's report to the management team. [Id. at ¶¶ 26-29.]

On or about October 30, 2007, Defendant Tate filed an internal complaint against Plaintiff, alleging that she had discriminated against Ms. Jura and Ms. Murakami because she was jealous of them. He also claimed Plaintiff had said that no woman under her supervision would be able to have a relationship with him. Plaintiff alleges that Defendant Tate's complaint damaged her reputation as a supervisor. The Department and Defendant Acob investigated the complaint. Defendant Acob spoke with Ms. Jura and Ms. Murakami, both of whom praised Plaintiff as a supervisor and denied that Plaintiff either discriminated against them or treated them improperly or unfairly. [Id. at ¶¶ 30-33.]

Defendant Tate later spread false rumors among the Department's staff, including Ms. Jura and Ms. Murakami, that Plaintiff had called Ms. Jura and Ms. Murakami "idiots" and "morons". On August 27, 2007,*fn2 Mr. Steel and DPA Peter Hanano and/or Defendant Acob threatened to discipline or terminate Plaintiff because of the name-calling. Sometime at the end of 2007, both Ms. Jura and Ms. Murakami were terminated. Plaintiff was on personal leave at the time and did not discover that they had be terminated until she returned to work. Both Ms. Jura and Ms. Murakami filed HCRC/EEOC complaints claiming that Plaintiff discriminated against them and/or treated them improperly or unfairly. [Id. at ¶¶ 34-38.]

On November 5, 2007, at a meeting with Mr. Steel and Mr. Hanano, Plaintiff again complained about Defendant Tate's improper conduct and the office ridicule and harassment she was experiencing as a result. At the Department's instruction, Plaintiff filed a written complaint on November 18, 2007. On December 31, 2007, Defendants informed her that they and the Corporation Counsel investigated her complaint and concluded it was unfounded. Corporation Counsel, however, later told Plaintiff that they never received her complaint and that they were not aware of its existence. Plaintiff provided Corporation Counsel with a copy of her complaint, but no action was taken. [Id. at ¶¶ 39-43.]

On or about August 14, 2008, Plaintiff learned that she had been nominated for Manager of the Year. Plaintiff states that she was the only person nominated, and Defendants decided not to present an award that year. [Id. at ¶¶ 44-45.]

On August 25, 2008, Defendant Acob questioned Plaintiff about a sketch of a former employee that had been posted in the District Court building. Plaintiff told him that she was not aware of the incident, but Defendant Acob threatened to discipline and/or terminate her for failing to address it. On August 27, 2008, Plaintiff informed Defendants that she was going to file a formal complaint because their actions constituted harassment and retaliation and created a hostile work environment. She filed EEOC Charge No. 486-2008-00510 ("EEOC Complaint 1") on October 15, 2008. At around that time, Defendant Acob and/or his staff later informed Plaintiff that they could not find merit in Defendant Tate's complaint against her, but that she was also under a new investigation for a management violation. [Id. at ¶¶ 46-49.]

In March 2009, Defendants instructed Plaintiff to attend Defendant Tate's narcotics training class. Plaintiff requested that she be allowed to receive the training through other means because of her history with Defendant Tate, but her request was denied. Plaintiff states that she had to leave the class because she became physically ill. She again requested alternate training, but her request was again denied. Plaintiff emphasizes that Defendant Tate's presentation was later made available on Power Point for attorneys who could not attend the training. During an April 2, 2009 meeting, Plaintiff was reprimanded for failing to attend the training class. Defendant Acob told her that she would be disciplined immediately unless she maintained contact with Defendant Tate and attended his training classes. Defendant Acob informed Plaintiff that he was planning to demote her and that Defendant Tate would be her supervisor. Plaintiff was therefore forced to interact with Defendant Tate. [Id. at ¶¶ 50-58.]

In May 2009, Plaintiff learned that Cynthia Sims, a DPA under Plaintiff's supervision, had not been at work on Friday, May 15, 2009. Plaintiff investigated and learned that Ms. Sims had approved sick leave to go to O`ahu for a doctor's appointment. Plaintiff was satisfied that Ms. Sims had not violated any of the Department's rules, but Defendant Acob later demanded that Plaintiff take immediate disciplinary action against Ms. Sims. Plaintiff tried to explain that she had verified Ms. Sims' authorization for the leave and that Plaintiff had proof, but Defendant Acob continued to demand that she discipline Ms. Sims. Plaintiff objected because Ms. Sims neither broke a rule nor inconvenienced other attorneys. Defendant Acob demanded that Plaintiff impose a new rule on Ms. Sims that would require her to have a doctor's note each time she was sick and to fly back to Maui to work the later half of the day after a morning doctor's appointment on O`ahu. Plaintiff objected that this was against the Department's policies about sick leave and that requiring Ms. Sims to fly back to Maui on a Friday afternoon would be discriminatory and an undue hardship because Ms. Sims lived on O`ahu on weekends. Defendant Acob threatened Plaintiff with disciplinary action if he was dissatisfied with Ms. Sims's attendance. Plaintiff filed her second EEOC/HCRC complaint ("EEOC Complaint 2") on June 8, 2009, based on the harassment and retaliation that she experienced after the filing of EEOC Complaint 1. [Id. at ¶¶ 60-69.]

On June 23, 2009, Plaintiff received a notice from the EEOC that the Department and Defendant Acob had been notified about the EEOC Complaint 2. That day, Defendant Acob, Mr. Steel, and Mr. Hanano presented Plaintiff with a letter officially terminating her employment for insubordination. Plaintiff filed her third EEOC/HCRC complaint ("EEOC Complaint 3") on July 9, 2009, based on the termination. [Id. at ¶¶ 70-74.]

Plaintiff alleges that the Department and Defendant Acob disciplined, but did not terminate, two other male supervisors for similar misconduct. [Id. at ¶¶ 75-80.] Plaintiff also alleges that Defendants promoted an unqualified male to her former position as District Court Supervisor. [Id. at ¶¶ 81-84.] Plaintiff further alleges that most, if not all, of her pay increases occurred before Defendant Acob became Chief Prosecutor, and, although she previously received numerous awards and commendations for her performance, she did not receive any while Defendant Acob was Chief Prosecutor. [Id. at ¶¶ 85-87.]

Plaintiff alleges that Defendant Acob discriminated against her based on her sex and her sexual orientation, and that he retailed against her for filing complaints with the EEOC/HCRC. She also alleges that Defendants created a hostile work environment and that their actions prevented her from practicing her profession and denied her livelihood and other benefits. Defendant Tate also allegedly defamed her, adversely affecting her career and reputation. [Id. at ¶¶ 88-91.]

The First Amended Complaint alleges the following claims: a discrimination/wrongful termination claim against the County and Defendant Acob under Title VII of the Civil Rights Act of 1964 ("Count I"); a sexual harassment/hostile work environment claim against Defendants ("Count II"); a retaliation claim against the County and Defendant Acob ("Count III"); a discriminatory practices claim against the County and Defendant Acob pursuant to Haw. Rev. Stat. Chapter 378 ("Count IV"); a Hawai`i Whistleblower's Protection Act claim against the County and Defendant Acob pursuant to Haw. Rev. Stat. § 378-61, et seq. ("Count V"); a breach of fiduciary duty claim against the County and Defendant Acob ("Count VI"); a defamation claim against Defendant Tate ("Count VII"); an intentional infliction of emotional distress ("IIED") claim against Defendants ("Count VIII"); and a claim for punitive damages ("Count IX").

The First Amended Complaint seeks: an award of back pay; prejudgment interest; damages for the employment benefits she would have received if not for Defendants' actions; special and compensatory damages; attorneys' fees and costs; and any other appropriate relief. [Id. at pgs. 26-27.]

II. Defendants' Motion

In the instant Motion, Defendants assert that they had legitimate, non-discriminatory reasons to terminate Plaintiff. According to Defendants, Plaintiff was terminated because she failed to discipline an employee who took excessive leave during her first year of employment with the County and because Plaintiff undermined management's authority by telling the employee that management was wrong in demanding that the employee be disciplined. [Mem. in Supp. of Motion at 1-2.] Defendants, however, argue that they are entitled to judgment on the pleadings as to some of Plaintiff's claims, regardless of the facts of the case. [Id. at 4.]

Insofar as the parties' 11/10/11 Stipulation rendered some portions of Defendants' Motion moot, the Court will not discuss the parties' arguments on those issues. Defendants' primary remaining argument is that Haw. Rev. Stat. § 378-2(1) and

(2) does not provide for liability on the part of individual employees for discrimination or retaliation claims under that chapter. Insofar as Plaintiff's Chapter 378 claim cannot support liability against Defendants Acob and Tate, Plaintiff's punitive damages claim against them also fails. [Id. at 5-7.]

Defendants therefore urge the Court to grant judgment on the pleadings as to all claims alleging Chapter 378 claims against Defendants Acob and Tate.

II. Plaintiff's Opposition

In her memorandum in opposition, Plaintiff argues that the judges of this district court are split on the issue whether there is individual liability under Haw. Rev. Stat. § 378-2(1) and (2). Chief United States District Judge Susan Oki Mollway and United States District Judge David Alan Ezra have ruled that there is no individual liability under § 378-2, except under § 378-2(3), which addresses aiding, abetting, inciting, compelling, or coercing discrimination.*fn3 United States District Judge J. Michael Seabright, Senior United States District Judge Alan C. Kay, and the late Senior United States District Judge Samuel P. King have ruled that ยง ...

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