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

August 31, 2012

MARIE J. KOSEGARTEN,
PLAINTIFF,
v.
THE DEPARTMENT OF THE PROSECUTING ATTORNEY, ET AL., DEFENDANTS.



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

ORDER DENYING DEFENDANTS' MOTION FOR PARTIAL SUMMARY JUDGMENT ON THE ISSUE OF QUALIFIED IMMUNITY FOR INDIVIDUAL DEFENDANTS AND GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON TIME-BARRED CLAIMS

On January 11, 2012, Defendants the County of Maui ("the County"), Benjamin M. Acob, in his individual capacity ("Defendant Acob"), and Timothy T. Tate, in his individual capacity ("Defendant Tate", all collectively, "Defendants") filed their Motion for Partial Summary Judgment on the Issue of Qualified Immunity for Individual Defendants ("Immunity Motion") and, on January 13, 2012, Defendants filed their Motion for Summary Judgment on Time-Barred Claims ("Time-Bar Motion"). [Dkt. nos. 74, 78.] Plaintiff Marie J. Kosegarten ("Plaintiff") filed her memorandum in opposition to the Immunity Motion ("Immunity Opposition") and her memorandum in opposition to the Time-Bar Motion ("Time-Bar Opposition") on April 9, 2012, and her supplemental memorandum in opposition to the Immunity Motion ("Supplemental Immunity Opposition") on July 18, 2012. [Dkt. nos. 119, 117, 149.] Defendants filed their reply regarding the Immunity Motion ("Immunity Reply") on July 25, 2012, and their reply regarding their Time-Bar Motion ("Time-Bar Reply") on April 16, 2012. [Dkt. nos. 154, 126.]

These matters came on for hearing on August 8, 2012. Appearing on behalf of Defendants were Cheryl Tipton, Esq., and Thomas Kolbe, Esq., and appearing on behalf of Plaintiff were Michael Green, Esq., Richard Gronna, Esq., and Denise Hevicon, Esq. After careful consideration of the motions, supporting and opposing memoranda, and the arguments of counsel, Defendants' Immunity Motion is HEREBY DENIED and Defendants' Time-Bar Motion is HEREBY GRANTED IN PART AND DENIED IN PART for the reasons set forth below.

BACKGROUND

Plaintiff filed the instant employment discrimination and retaliation action on June 4, 2010. Plaintiff filed her Second Amended Complaint on December 21, 2011. [Dkt. no. 62.] At all relevant times, Defendant Acob was the County's Chief Prosecuting Attorney, and Defendant Tate was a County deputy prosecuting attorney ("DPA"). [Second Amended Complaint at ¶¶ 7-8.] Plaintiff was also employed by the County as a DPA until her termination. [Id. at ¶¶ 14, 88.]

The core factual allegations that Plaintiff bases the Second Amended Complaint upon are the same as the factual allegations in the First Amended Complaint, which are summarized in this Court's November 29, 2011 Order Granting in Part and Denying in Part as Moot Defendants' Motion for Judgment on the Pleadings on Certain Claims, and Granting Plaintiff's Request for Leave to File a Second Amended Complaint ("11/29/11 Order"). [Dkt. no. 58.*fn1 ] This Court incorporates the 11/29/11 Order's summary of the factual allegations in the First Amended Complaint.

The Second Amended Complaint alleges the following claims: a discrimination/wrongful termination claim under Title VII of the Civil Rights Act of 1964 ("Title VII") against the County ("Count I"); a sexual harassment/hostile work environment claim against the County ("Count II"); a retaliation claim against the County ("Count III"); a discriminatory practices claim against Defendants pursuant to Haw. Rev. Stat. Chapter 378 ("Count IV"); a Whistleblowers' Protection Act claim against the County pursuant to Haw. Rev. Stat. § 378-61, et seq. ("Count V"); and a defamation claim against Defendant Tate ("Count VI").

On January 4, 2012, Defendants filed a Motion to Strike and/or to Dismiss Portions of Plaintiff's Second Amended Complaint. [Dkt. no. 63.] This Court granted the motion in part, but only insofar as the Court struck the portions of the Second Amended Complaint alleging that Defendant Acob attended an August 27, 2008 meeting during which Plaintiff was informed that the County would be investigating her for a management violation. This Court denied the motion in all other respects. [Order Granting in Part & Denying in Part Defs.' Motion to Strike and/or to Dismiss Portions of Pltf.'s Second Amended Complaint, filed 4/5/12 (dkt. no. 115) ("4/5/12 Order").*fn2 ]

I. Immunity Motion

In the Immunity Motion, Defendants first emphasize that the only remaining claim against Defendant Acob is the portion of Count IV alleging that he and Defendant Tate aided and abetted the commission of a discriminatory act prohibited by Chapter 378. Defendants argue that, in order to state an aiding and abetting claim pursuant to Haw. Rev. Stat. § 378-2(3), a plaintiff must identify at least two persons, one who incites, compels, or coerces the discriminatory act, and another who is incited, compelled or coerced to commit the act. [Id. at 9-10.] Defendants emphasize that the County is not considered a person for purposes of this analysis.

Defendants note that, pursuant to § 8-3.3.1 of the Charter of the County of Maui ("County Charter"),*fn3 the prosecuting attorney appoints the DPAs, who serve at the pleasure of the prosecuting attorney. Thus, Defendants assert that only Defendant Acob had the authority to appoint and retain Plaintiff. [Id. at 10-11.]

In addition, Defendants argue that, under Hawai`i law, Plaintiff must prove by clear and convincing evidence that the official's conduct was motivated by malice and not by a proper purpose. [Id. at 11.] Defendants argue that Plaintiff's Second Amended Complaint does not allege malice, and Defendants point out that Defendant Acob consulted with Corporation Counsel before he took some of the actions referenced in the Second Amended Complaint. Defendants assert that these consultations disprove any allegation of malice and actually establish that Defendant Acob was trying to follow the law. [Id. (citing Tipton Immunity Decl. at ¶ 8).] Further, Defendants argue that Plaintiff has not presented any evidence, let alone clear and convincing evidence, that Defendants Acob and Tate acted with malice. [Id. at 18.]

Defendants argue that Defendant Acob is entitled to qualified immunity because he could not have reasonably anticipated that 1) raising his voice at Plaintiff,

2) authorizing an equal employment opportunity investigation of a discrimination complaint against Plaintiff, or 3) terminating Plaintiff for insubordination constituted discrimination. Defendants also argue that this Court cannot consider the allegations that Plaintiff raised in the federal claims asserted in prior versions of the complaint because the Second Amended Complaint does not assert any federal claims against Defendant Acob or Defendant Tate. [Id. at 12-13.]

Defendants also argue that Defendant Tate is entitled to qualified immunity from the two state law claims remaining against him. Similar to the arguments that Defendants raise as to Defendant Acob, Defendants argue that Defendant Tate is entitled to qualified immunity as to Plaintiff's aiding and abetting claim because Plaintiff does not allege that Defendant Tate aided and abetted Defendant Acob and because Plaintiff does not allege that Defendant Tate acted with malice. [Id. at 14.] Specifically as to Defendant Tate's narcotics class that Plaintiff alleges she was required to take, Plaintiff has admitted that Defendant Tate did not engage in any discriminatory, harassing, or hostile behavior during the class. [Id. at 14 n.5 (citing Tipton Immunity Decl., Exh. C).*fn4 ]

Defendants also argue that Plaintiff has not alleged malice to support her defamation claim against Defendant Tate. First, Defendants note that the two allegations of defamation that allegedly occurred prior to June 4, 2008 are barred by the two-year statute of limitations.*fn5 Further, Defendant Tate's report to Defendant Acob in August 2008 that Plaintiff may be discriminating against Jacki Jura and Yukari Murakami cannot be defamation because DPA Tracy Jones signed a statement that Plaintiff referred to Jura and Murakami as idiots and morons. Defendants argue that Defendant Tate reported the incident to Defendant Acob in connection with the Equal Employment Opportunity Commission ("EEOC") complaints that Ms. Jura and Ms. Murakami filed. [Id. at 15-17; Defs.' Immunity CSOF at ¶ 15; Tipton Immunity Decl., Exh. G.*fn6 ] Defendants argue that Defendant Tate cannot be held liable for defamation because he was acting reasonably in the discharge of his public duties and because the statements were about a matter that he and the recipient had a reasonable interest or duty in. Defendants emphasize that Defendant Tate's statements were not made public, and the statements that Plaintiff made about Ms. Jura and Ms. Murakami were subject to an investigation.*fn7 Further, Defendants argue that the issue whether the communication was privileged is an issue of law appropriate for summary judgment. [Mem. in Supp. of Immunity Motion at 17-18.]

A. Plaintiff's Memorandum in Opposition

In Plaintiff's Immunity Opposition, Plaintiff notes that, since the filing of the Immunity Motion, this Court has already resolved some of the issues Defendants raised in that motion. Thus, the only remaining issue is whether Defendants Acob and Tate are entitled to qualified immunity on the Haw. Rev. Stat. § 378-2(3) aiding and abetting claim and whether Defendant Tate is entitled to qualified immunity on the defamation claim. Plaintiff argues that summary judgment on the issue of qualified immunity is not appropriate at this time. She asserts that she cannot fairly oppose the Immunity Motion because she has not had the opportunity to conduct discovery about Defendants Acob and Tate. [Immunity Opp. at 1.]

The majority of the arguments in the Immunity Opposition address discovery related to the qualified immunity issue. These arguments are moot insofar as this Court continued the original April 2012 date for the hearing on the Immunity Motion after the magistrate judge's discovery ruling and Plaintiff filed a supplemental opposition to the Immunity Motion incorporating discovery conducted pursuant to the magistrate judge's ruling.

Plaintiff also argues that she was not required to plead malice in the Second Amended Complaint to prevent a summary judgment ruling on qualified immunity. She argues that such a requirement is unreasonable and is inconsistent with Hawai`i state law because, at the time a plaintiff files a complaint, she does not know whether the defendant is going to assert a qualified immunity defense. [Id. at 12-13.]

B. Plaintiff's Supplemental Opposition

In her Supplemental Immunity Opposition, Plaintiff emphasizes that Hawai`i case law requires courts to utilize a reasonable person standard in determining whether malice exists to extinguish a claim of qualified privilege. Further, whether malice exists is generally a question of fact for the jury. [Suppl. Immunity Opp. at 4.] At her deposition, Plaintiff testified that, in September 2007, Defendant Tate told her: "'You've got to start doing more for Jacki. You have got to promote Jacki. You need to do favors for her.'" [Pltf.'s Suppl. Concise Statement of Material Facts in Opp. to Immunity Motion ("Pltf.'s Suppl. Immunity CSOF"), filed 7/18/12 (dkt. no. 150), Decl. of Counsel, Exh. 2 (Excerpts of 6/22/11 Pltf. Depo. Trans.) ("Pltf. Depo.") at 59.] Plaintiff responded that his request was improper and that he should not ask such things. [Id. at 60.] Plaintiff testified that Defendant Tate later made an almost identical request about Ms. Murakami. [Id. at 76.] At his deposition, Defendant Tate denied having a romantic relationship with Ms. Jura, but he admitted to having a social relationship with her and to going to her home five or six times. Defendant Tate also testified that Ms. Murakami became his girlfriend in September 2007. [Pltf.'s Suppl. Immunity CSOF, Decl. of Counsel, Exh. 7 (Excerpts of 7/2/12 Def. Tate Depo. Trans.) ("Tate Depo.") at 24-25, 28, 38.] Plaintiff testified that she did not think it was appropriate for Defendant Tate to ask her to do favors for new DPAs with whom he had personal relationships, and she reported his requests to the department's managers. [Pltf.'s Depo. at 77-78.]

Defendant Acob acknowledged that Plaintiff reported to him that Defendant Tate came to her and wanted her to promote his girlfriends. Plaintiff also told Defendant Acob that Defendant Tate's girlfriends were incompetent, which Defendant understood to refer to their abilities in the courtroom. [Pltf.'s Suppl. Immunity CSOF, Decl. of Counsel, Exh. 6 (Excerpts of 6/29/12 Def. Acob Depo. Trans. Vol. II) ("Acob Depo. II") at 77-78.] Defendant Acob acknowledged that it was improper for Defendant Tate to ask the supervisor of a DPA whom he was dating to promote the DPA. Defendant Acob orally reprimanded Defendant Tate for doing so. In other words, he told Defendant Tate: "'Don't do it again'". [Id. at 83.]

According to Defendant Tate, his supervisor noticed that Plaintiff and Defendant Tate had stopped socializing, so Defendant Tate "gave him some background on what had happened." [Tate Depo. at 66.] Defendant Tate had concerns that Plaintiff was trying to have Ms. Murakami fired, and he reported these concerns to his supervisor. He also testified that, in mid-October 2007, Ms. Jura told him that she had heard he was dating someone in the office, and she warned him that, if he was dating someone in the office, Plaintiff would have that person fired. According to Defendant Tate, Ms. Jura said this because, about six weeks prior, Plaintiff had tried to get Ms. Jura fired because Plaintiff believed Defendant Tate was spending time with Ms. Jura and helping her. Defendant Tate believed that Plaintiff was jealous of him and the women he was dating. [Id. at 66-68.] Defendant Tate testified that he did not believe Plaintiff thought that he and Plaintiff "could be together in that way, because she knew [he] didn't like her that way." [Id. at 68.] Plaintiff alleges that the department, with Defendant Acob's approval, launched an investigation into Defendant Tate's allegations that Plaintiff discriminated against Ms. Jura and Ms. Murakami. Plaintiff emphasizes that, although Defendant Acob acknowledged that Defendant Tate's actions were improper, Defendant Tate essentially received no disciplinary action. [Suppl. Immunity Opp. at 7.]

Plaintiff argues that Defendant Acob terminated Plaintiff because she authorized Cynthia Sims to take Fridays off to attend medical appointments and because of the 2007 occurrences involving Defendant Tate, Ms. Jura, and Ms. Murakami. [Id.] According to Defendant Acob, he terminated Plaintiff for insubordination because Plaintiff failed to discipline Ms. Sims for Ms. Sims's routine Friday absences. In his termination letter to Plaintiff, Defendant Acob stated that Plaintiff unilaterally reversed the corrective action he placed on Ms. Sims. During his deposition, however, Defendant Tate admitted that he never sanctioned Ms. Sims, but merely told her to improve her work attendance. Thus, Plaintiff argues that the stated reason for Plaintiff's termination was a pretext. [Id. at 7-9.]

Plaintiff also points out that, at Defendant Acob's direction, she investigated Ms. Sims's May 15, 2009 absence from work. Plaintiff determined that Ms. Sims was absent that day for a justifiable, medical reason. As to Ms. Sims's regular Friday absences, Plaintiff found that, except for May 15, 2009, Ms. Sims always submitted a note from her doctor on Oahu for her anticipated absences. Further, Ms. Sims was not scheduled for court on Fridays, and Friday appointments allowed her to save time and money because Ms. Sims resided on Oahu and flew back every weekend. Plaintiff followed Defendant Acob's decision that Ms. Sims's May 15, 2009 absence was leave without pay and docked Ms. Sims's pay accordingly. Thus, Plaintiff did what Defendant Acob directed her to do, even though Plaintiff believed that his decision violated the department policy that a doctor's note was only required for absences of four days or more. [Id. at 9-10 (citing Acob Depo. II at 113-17; Pltf. Depo. at 161-66).] Plaintiff argues that, insofar as she was not insubordinate in the Sims matter, Defendant Acob's termination of Plaintiff must have stemmed from the 2007 incidents and Defendant Tate's allegations against her. Plaintiff argues that she has raised a genuine issue of fact as to whether Defendant Acob's conduct establishes malice. [Id. at 11.]

In addition, Defendant Acob admitted during his deposition that he was aware that the County's anti-discrimination policy requires that supervisors take immediate action to separate employees when there is a complaint of discrimination. Defendant Acob, however, took no steps to separate Plaintiff and Defendant Tate after Plaintiff filed a discrimination complaint against Defendant Tate; Defendant Acob merely told her to "get over it". [Acob Depo. II at 34, 42-43, 53-54.] Defendant Acob still forced Plaintiff to attend a training session taught by Defendant Tate in March 2009. [Pltf. Depo. at 124-26.] Plaintiff argues that there is a genuine issue of fact as to whether Defendant Acob acted without a proper purpose, and Plaintiff urges the Court to find that he is not entitled to qualified immunity. [Suppl. Immunity Opp. at 11-12.]

Plaintiff also argues that Defendant Tate is not entitled to qualified immunity. First, it is undisputed that Defendant Tate referred to Plaintiff as a "butch". Plaintiff argues that Defendant Tate was aware that Plaintiff was not a lesbian. In fact, Defendant Tate believed that Plaintiff was interested in him romantically. Although Defendant Tate tried to claim that the comment was a joke, Plaintiff was offended and did not consider it a joke. [Id. at 13 (citing Tate Depo. at 17-19, 23, 25, 27-28, 32-33; Pltf. Depo. at 67-69).]

Plaintiff also argues that, during his deposition, Defendant Tate admitted that he had asked Plaintiff for favors for Ms. Jura. Defendant Acob admitted this was inappropriate. [Id. (citing Tate Depo. at 35; Acob Depo. II at 83).] Plaintiff also points out that Defendant Tate independently accessed the EEOC investigation report about his complaint because the report was on a shared office computer drive. The report, which was later officially delivered to Defendant Tate, stated, inter alia, that Defendant Tate should be cautioned about romantic relationships in the office and that he should be aware of the seriousness of the allegations he raised, particularly when he had no personal knowledge about the subject of the allegations. Plaintiff therefore argues that Defendant Tate's actions had no legitimate purpose and went outside lawful boundaries. [Id. at 14-15 (citing Tate Depo. at 36-38, 72).]

Plaintiff urges the Court to deny the Immunity Motion.

C. Defendants' Reply

In the Immunity Reply, Defendants argue that the actions Plaintiff identified in her oppositions do not show either that Defendants Acob and Tate acted with malice or that they lacked an otherwise proper purpose. [Immunity Reply at 2-3.] Defendants emphasize that the reasonable person test for qualified immunity only applies to defamation claims; in all other cases an actual malice test applies. [Id. at 5.] Defendants argue that Plaintiff has not identified any evidence that Defendants Acob and Tate acted together with malice or improper purpose. Defendants also argue that the deposition pages Plaintiff cites for the proposition that Defendant Acob terminated her for the events in 2007 do not support that position. In fact, Defendant Acob testified that Plaintiff's termination had nothing to do with the 2007 events. Defendant Acob also testified that Plaintiff was not a good supervisor, in part because of the Sims matter. Although Plaintiff informed Ms. Sims about all of the issues Defendant Acob identified, Plaintiff also told Ms. Sims in writing that Plaintiff did not feel management should restrict leave to certain days of the week for certain employees. Defendants argue that this undermined Defendant Acob's instructions and constituted insubordination, justifying Plaintiff's termination. [Id. at 6-7 (some citations omitted) (citing Acob Depo. II at 74, 131-32, 155; Report of Conference of Plaintiff counseling Sims; Letter of termination dated June 23, 2009).*fn8 ] Defendants point out that, on August 27, 2009, Ms. Sims was terminated for failing to do her work and for insubordination. [Defs.' Suppl. Exhibits to Immunity Reply, filed 7/30/12 (dkt. no. 159), Decl. of Benjamin M. Acob, Exh. K (letter dated 8/27/09 to Ms. Sims from Defendant Acob terminating her employment).] As to Plaintiff's allegation that Defendant Acob failed to separate Plaintiff from Defendant Tate, Defendants argue that separation was not necessary because they worked in different parts of the building. Further, Plaintiff was on sick leave for knee surgery from November 28, 2007 to December 31, 2007. [Immunity Reply at 9 (citing Defs.' Suppl. Exhibits to Immunity Reply, Decl. of Cheryl Tipton ("Suppl. Tipton Immunity Decl.") at ¶ 4, Exh. M*fn9 at 43).] The department completed its internal investigation in December 2007 and found that neither Defendant Tate's allegations about Plaintiff nor Plaintiff's allegations about Defendant Tate rose to the level of a violation of the County's anti-discrimination policy. Defendants argue that, once the investigation was complete, there was no obligation to separate Plaintiff and Defendant Tate. [Id. (some citations omitted) (citing Tipton Time-Bar Decl., Exh. B-1 at 3).] Defendant Tate's training class, which Plaintiff claims she was forced to attend, did not occur until approximately sixteen months after the investigation was complete. Defendant Acob testified that he did not specifically order Plaintiff to attend the training. He merely advised her that she should attend because there could be information at the training that was not included in the written materials. [Id. at 9-10 (citing Suppl. Tipton Immunity Decl. at ¶ 3, Exh. L*fn10 at 50).]

As to Defendant Tate, Defendants argue that Plaintiff has not established malice because Defendant Tate had reasonable concerns that Plaintiff might discriminate against Ms. Murakami because Plaintiff was jealous. Defendants point out that Robert Rivera and Melinda Mendes also testified at their depositions that they suspected that Plaintiff was jealous.*fn11

Defendants reiterate that Defendant Tate's report that Plaintiff discriminated against Ms. Jura and Ms. Murakami by calling them idiots and morons was not improper. They emphasize that both Ms. Jura and Ms. Murakami filed EEOC charges, and Ms. Jura has a pending action in this district court. [Id. at 11-12.]

Defendant Tate denies asking Plaintiff to do favors for either Ms. Jura or Ms. Murakami but, for purposes of the Immunity Motion, Defendants argue that, assuming that Defendant Tate did so, his actions were not malicious. Defendant Tate was not Plaintiff's supervisor and he had no authority over her. Thus, he could not force her to take any actions in favor of Ms. Jura or Ms. Murakami. Defendants argue that, even if he did ask Plaintiff for favors, this is not clear and convincing evidence of malice. [Id. at 12.] As to his comment that Plaintiff was a "butch", Defendants state that Defendant Tate only said this to Ms. Jura to dissuade Ms. Jura from trying to arrange a date between Ms. Jura's roommate and Plaintiff. This was a one-time occurrence in June 2007. It did not seem to affect Plaintiff's relationship with Defendant Tate at the time, and Defendant Tate later explained to Ms. Jura that it was not true. Defendants argue that Plaintiff never complained about the comment until Defendant Tate raised his concerns about Plaintiff. [Id. at 12-13 (citing Tate Depo. at 25-29, 58, 60).] Defendant Tate admits that he accessed a report about judges' comments regarding how the district court DPAs, including Ms. Jura and Ms. Murakami, handled themselves in court. Defendants, however, argue that there is no evidence Defendant Tate used the report for an improper purpose, and the mere fact that he accessed the report is not clear and convincing evidence of malice. [Id. at 13.]

As to the defamation claim, Defendants point out that, in her memorandum in opposition to the Time-Bar Motion, Plaintiff acknowledged that the portions of the claim based on Defendant Tate's report to Defendant Acob that Plaintiff may be discriminating against Ms. Jura and Ms. Murakami and Defendant Tate's reference to Plaintiff as a lesbian and a butch are time-barred because Plaintiff did not bring the claims within two years after Defendant Tate made the statements. [Id. at 13-14.] Defendants reiterate the argument from the Immunity Motion that Defendant Tate's report to Defendant Acob that Plaintiff called Ms. Jura and Ms. Murakami idiots and morons had a proper purpose. [Id. at 14-15.]

Defendants argue that the Court must dismiss Plaintiff's claims against Defendants Acob and Tate because Plaintiff did not allege malice in the Second Amended Complaint. Defendants emphasize that Plaintiff had notice from their answer to the First Amended Complaint that Defendants Acob and Tate were asserting a qualified immunity defense. They also argue that the Court should not allow Plaintiff to further amend her complaint because she has already had a chance to amend her state law claims against Defendants Acob and Tate. [Id. at 4.]

Defendants therefore urge the Court to grant the Immunity Motion.

II. Time-Bar Motion

In the Time-Bar Motion, Defendants argue that the portions of Plaintiff's Title VII and Haw. Rev. Stat. Chapter 378 claims which are based on acts that occurred before December 20, 2007 are time-barred. Plaintiff filed three complaints with the EEOC, one dated October 15, 2008, one dated June 8, 2009, and one dated July 9, 2009. [Mem. in Supp. of Time-Bar Motion at 4-5.] The October 15, 2008 charge alleges acts of discrimination occurring as early as September 1, 2007. [Defs.' Concise Statement of Material Facts in Supp. of Time-Bar Motion, filed 1/13/12 (dtk. no. 79) ("Defs.' Time-Bar CSOF"), Decl. of Cheryl Tipton ("Tipton Time-Bar Decl."), Exh. B-1.] Thus, only acts occurring 300 days before October 15, 2008, i.e., December 20, 2007 or later, are timely. The Second Amended Complaint alleges the following acts occurring before December 20, 2007: Plaintiff's reassignment in early 2007; Defendant Tate's request in September 2007 that Plaintiff promote Ms. Jura; Defendant Tate's referring to Plaintiff in September 2007 as a "lesbian" and a "butch"; Defendant Tate's request on October 29, 2007 that Plaintiff promote Ms. Murakami; and Defendant's internal complaint that Plaintiff was discriminating against Ms. Jura and Ms. Murakami because she was jealous of them. Defendants argue that all of Plaintiff's employment discrimination claims based on these allegations are time-barred. [Mem. in Supp. of Time-Bar Motion at 5-11.]

Defendants also argue that Plaintiff's claims for violation of the Hawaii Whistleblowers' Protection Act are barred unless the violation within two years before Plaintiff filed her complaint on June 4, 2010. Plaintiff's whistleblower claims based on the five acts identified supra are therefore time-barred. [Id. at 11.] Defendants also argue that a two-year statute of limitations applies to Plaintiff's defamation claim against Defendant Tate. Plaintiff's defamation claim is therefore time-barred to the extent that it is based upon Defendant Tate's report to Defendant Acob on October 30, 2007 that Plaintiff might be discriminating against Ms. Jura and Ms. Murakami or Defendant Tate's September 2007 references to Plaintiff as a "lesbian" and a "butch". [Id. at 12.] Defendants therefore urge the Court to grant summary judgment in favor of Defendants as to the time-barred claims identified in this motion.

A. Plaintiff's Memorandum in Opposition

In the Time-Bar Opposition, Plaintiff acknowledges that the Court should grant the Time-Bar Motion as to the portion of the defamation claim based on statements that occurred prior to June 4, 2008,*fn12 but Plaintiff emphasizes that the facts themselves are not subject to any statute of limitations. [Time-Bar Opp. at 4.]

Plaintiff notes that her EEOC charge dated October 15, 2008 refers to acts of discrimination occurring from September 1, 2007 to September 29, 2008, and the charge states that the discrimination was a continuing action. Plaintiff emphasizes that courts must construe EEOC charges liberally. Further, under the doctrine of continuing violations, the Court can consider discriminatory events beyond the limitations period if they were part of a series of related acts against the plaintiff and some of the acts extended into the limitations period. [Id. at 6-7.] Plaintiff argues that her three EEOC charges "contain the complete chronology of facts and allegations which commenced in ...


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