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Kosegarten v. Department of Prosecuting Attorney

United States District Court, D. Hawai'i

October 30, 2012

Marie J. KOSEGARTEN, Plaintiff,
v.
The DEPARTMENT OF THE PROSECUTING ATTORNEY, et al., Defendants.

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[Copyrighted Material Omitted]

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Richard D. Gronna, Attorney at Law, Caprice R. Itagaki, Denise M. Hevicon, Michael Jay Green, Honolulu, HI, for Plaintiff.

Cheryl A. Tipton, Thomas W. Kolbe, Department of the Corporation Counsel, Wailuku, HI, for Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON AIDING AND ABETTING CLAIMS

LESLIE E. KOBAYASHI, District Judge.

On July 6, 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 Summary Judgment on Aiding and Abetting Claims (" Motion" ). [Dkt. no. 142.] Plaintiff Marie J. Kosegarten (" Plaintiff" ) filed her memorandum in opposition to the Motion on September 10, 2012, and Defendants filed their reply on September 17, 2012. [Dkt. nos. 173, 175.] On September 27, 2012, this Court found the instant Motion suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai'i (" Local Rules" ). [Dkt. no. 187.] After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendants' Motion is HEREBY DENIED for the reasons set forth below.

BACKGROUND

This Court recently set forth the factual and procedural history of this case in its 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, filed August 31, 2012 (" 8/31/12 Order" ), [dkt. no. 172,[1]] which this Court incorporates by reference.

I. Motion

In the instant Motion, Defendants first argue that Plaintiff failed to exhaust her administrative remedies as to her aiding and abetting claims. Insofar as aiding and betting is a state law claim pursuant to Haw.Rev.Stat. § 378-2(3)[2] and it does not

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arise under Title VII, Plaintiff had to file a charge with the Hawai'i Civil Rights Commission (" HCRC" ) within 180 days after the last alleged act of discrimination. Plaintiff, however, only filed three charges with the Equal Employment Opportunity Commission (" EEOC" ). [Mem. in Supp. of Motion at 3; Defs.' Concise Statement of Material Facts in Supp. of Motion, filed 7/6/12 (dkt. no. 143) (" Defs.' CSOF" ), Decl. of Cheryl Tipton (" Tipton Decl." ), Exhs. A-C.[3]] Defendants emphasize that obtaining a right-to-sue letter from the HCRC is a pre-condition to bringing a civil action for violations of § 378-2. [Mem. in Supp. of Motion at 4.]

Defendants argue that Plaintiff did not allege in the Charges that Defendants Acob and Tate " aided, abetted, incited, compelled, or coerced the doing of any of the discriminatory practices forbidden by Chapter 378, Part I, or even that they attempted to do so." [ Id. at 5.] The County is the only respondent named in the Charges and in the right-to-sue letters from the HCRC and the EEOC. [Tipton Decl., Exh. D.] Defendants argue that Plaintiff's aiding and abetting allegations against Defendants Acob and Tate are outside of the scope of the Charges, and therefore those claims are barred for failure to exhaust. [Mem. in Supp. of Motion at 5.]

Defendants acknowledge that the Ninth Circuit has stated that a layperson completing a discrimination charge should not be held to the same pleading standards applicable to the filing of a civil complaint. [ Id. at 8 (citing B.K.B. v. Maui Police Department, 276 F.3d 1091, 1103 (9th Cir.2002)).] Defendants, however, argue that this Court should hold Plaintiff to a higher standard because she is an attorney and, prior to filing the October 2008 Charge, she stated that she had retained an attorney. [ Id.; Tipton Decl., Exh. E (email string dated September 2, 2008 and August 27, 2008 between Plaintiff and Wayne Steel regarding " Retaliation Claim" ).]

Defendants also point out that, in her responses to the EEOC EAS Questionnaire, which the EEOC uses to draft the formal complaint, Plaintiff identified the persons responsible as Peter Hanano, Wayne Steel, and Defendant Acob. She did not identify Defendant Tate. [Mem. in Supp. of Motion 8-9; Tipton Decl., Exh. F (EAS Questionnaire dated August 28, 2008).] The EAS Questionnaire asks the complainant to identify the bases for the claim of employment discrimination. The complainant can check race, sex, age, disability, national origin, color, religion, retaliation, pregnancy, and other. Plaintiff marked retaliation and listed " Whistleblower" after " other" . [Tipton Decl., Exh. F at 2.] Defendants argue that Plaintiff could have listed aiding and abetting under " other", but she did not do so. [Mem. in

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Supp. of Motion at 9.] In addition, the narrative in the EAS Questionnaire does not mention any communications between Defendant Acob and Defendant Tate. Defendants also argue that, although the Charges list actions by Defendants Acob and Tate, the Charges do not suggest a conspiracy or plot between them, nor do the Charges mention any communications between them. Defendants argue that the Charges were insufficient to exhaust her administrative remedies as to her aiding and abetting claims. [ Id. at 9-10.] Defendants emphasize that Defendant Tate did not receive notice of any of Plaintiff's Charges. [ Id. at 10 (citing Defs.' CSOF, Decl. of Timothy T. Tate (" Tate Decl." ) at ¶ 18).] Defendants therefore argue that they are entitled to summary judgment on Plaintiff's aiding and abetting claims.[4]

Defendants next argue that Plaintiff's aiding and abetting claims are meritless. According to Defendants, the Second Amended Complaint contains eight paragraphs setting forth the actions which form the basis of Plaintiff's aiding and abetting claims (paragraphs 44, 47, 53, 58, 59, 70, 84, and 106). [Mem. in Supp. of Motion at 11-15.]

Paragraph 44 of the Second Amended Complaint alleges that Defendant Tate aided and abetted Defendant Acob [5] to blemish Plaintiff's personnel file and to create a hostile work environment for her by spreading rumors around the office that Plaintiff called Ms. Jura and Ms. Murakami " idiots" and " morons" . Defendants argue that, based on the undisputed facts of this case, Plaintiff cannot prevail on this allegation. [Mem. in Supp. of Motion at 12.]

Defendants point to: Defendant Acob's testimony that, at the time Plaintiff allegedly made the statement, Ms. Jura and Ms. Murakami had pending EEOC discrimination complaints against the County; [Defs.' CSOF, Decl. of Benjamin A. Acob (" Acob Decl." ) at ¶ 13; ] the internal investigation into whether Plaintiff's comments constituted prohibited retaliation for their EEOC complaints; [Defs.' CSOF, Decl. of Wayne Steel [6] (" Steel Decl." ) at ¶ 5; ] Mr. Steel's deposition testimony that information from an internal discrimination investigation is not placed in anyone's personnel file unless there is a finding, and that the investigative report is only placed in the investigative file; [Tipton Decl., Exh. H (excerpts of 3/2/12 depo. of Wayne F. Steel) at 80, 84-85; ] Defendant Acob's testimony that, when Plaintiff denied making the statement, he gave her the benefit of

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the doubt; his testimony that Plaintiff received a raise effective July 1, 2008 and a positive performance evaluation from him on September 29, 2008; his testimony that Plaintiff's termination was not based on any actions or comments by Defendant Tate; [Acob Decl. at ¶¶ 13-15; ] and Plaintiff's admission that, prior to her termination, she had never suffered a disciplinary action of any kind [Tipton Decl., Exh. G (excerpts of Pltf.'s First Suppl. Answers to the County's First Request for Answers to Interrogs.) at 2].

Defendants argue that Plaintiff's comments " were reported to management, not to others in the office, as required by the County's Policy Against Discrimination[.]" [Mem. in Supp. of Motion at 12 (citing Acob Dec. ¶ 13; Tipton Decl., Exh. M).] Defendant Acob's declaration, however, merely states that Defendant Tate reported the comments to him and that Defendant Tate's report was kept confidential. Defendant Acob does not address whether Defendant Tate told others in the office about Plaintiff's alleged comments. [Acob Decl. at ¶ 13.]

Defendants also argue that Deputy Prosecuting Attorney (" DPA" ) Tracy Jones confirmed that Plaintiff referred to Ms. Jura and Ms. Murakami as " morons and idiots" . [Mem. in Supp. of Motion at 12 (citing Tipton Decl., Exh. P). [7]]

Paragraph 47 of the Second Amended Complaint alleges Defendant Tate made his August 21, 2008 complaint, which was based upon Plaintiff's " idiots" and " morons" comment and regarding Plaintiff's negative remarks about DPA Robert Rivera, to aid and abet Defendant Acob in creating negative marks in her personnel file, leading to disciplinary action and her eventual termination. Defendants argue that, based on the same undisputed facts discussed as to paragraph 44, Plaintiff cannot prevail on this allegation. [Mem. in Supp. of Motion at 12-13.]

Paragraph 53 of the Second Amended Complaint also alleges Defendant Acob aided and abetted the County to create negative marks in Plaintiff's personnel file and to induce her to resign. Defendants argue that Plaintiff cannot prevail on her aiding and abetting claim to the extent that it is based on this allegation because Defendant Acob is the only person who had the authority to hire and fire DPAs. [Mem. in Supp. of Motion at 13 (citing Tipton Decl., Exh. S (excerpts of Charter, County of Maui) at § 8-3.3).] Further, Defendant Acob could not aid and abet himself. [ Id. ]

Paragraphs 58 and 59 of the Second Amended Complaint allege that Defendants Acob and Tate used the narcotics training class to establish a pretext for Plaintiffs' termination. Defendants argue that, based on the undisputed facts, Plaintiff cannot prevail on her aiding and abetting claim as to this allegation. Defendants reiterate that only Defendant Acob had the authority to terminate Plaintiff's employment. [Mem. in Supp. of Motion at 13-14.]

In addition, Defendants point to the following facts, which they allege are undisputed: the Department periodically provides training for the DPAs; in early 2009, Defendant Acob asked Defendant Tate and DPAs John Kim and Tracy Jones to conduct a training on warrants, narcotics evidence, and other topics; Defendant Tate set the date and time for the training,

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which occurred on March 30, 2009; the Department has a long-standing policy that training sessions are mandatory for all DPAs unless they are in court or on approved leave; Defendants Acob and Tate never discussed Plaintiff when they talked about the training; Defendant Acob had no way of knowing whether Plaintiff would be in court at the time of the training; prior to the training, Defendant Acob never specifically instructed Plaintiff to attend, nor did Plaintiff ask him to excuse her from the training; [Acob Decl. at ¶¶ 8-10; [8]] Plaintiff was terminated on June 23, 2009, almost three months after the training; [Second Amended Complaint at ¶ 88; ] and, according to Defendant Acob, Defendant Tate's actions and comments had nothing to do with Plaintiff's termination [Acob Decl. at ¶ 15]. Defendants also argue that Plaintiff's July 2009 Charge admits that Plaintiff's termination was based upon Plaintiff's insubordination in the Sims matter and that Defendant Tate was not involved in Plaintiff's termination. Defendants emphasize that the July 2009 Charge addressing Plaintiff's termination does not mention Defendant Tate's name. [Mem. in Supp. of Motion at 14, 18 (citing Tipton Decl., Exh. C).]

Defendants also address: the allegations in paragraphs 70 and 84 of the Second Amended Complaint that Defendant Acob aided and abetted the County to create negative marks in Plaintiff's personnel file and to set a pretext for her termination; and the allegations in paragraph 106 that Defendants Acob and Tate aided and abetted the County to discriminate against Plaintiff and to create a pretext for her to be disciplined and eventually terminated. Defendants argue that Plaintiff cannot prevail on her aiding and abetting claim regarding these allegations. Defendants rely on the same evidence and legal arguments identified as to the preceding allegations. Defendants urge the Court to find that neither Defendant Acob nor Defendant Tate discriminated against Plaintiff. In particular, Defendants argue that there were no blemishes in Plaintiff's personnel files and therefore Plaintiff cannot prove that Defendant Acob's actions created negative remarks in her personnel file. [ Id. at 14-16.]

Plaintiff has also complained about various Reports of Conference prepared during Defendant Acob's administration. Defendants point to Wayne Steel's deposition testimony that Reports of Conference are like meeting minutes that could address a wide range of actions from counseling through termination. Sometimes they have nothing to do with employee discipline and merely reflect an issue that the Prosecuting Attorney wants documented. According to Mr. Steel, only reports containing some form of discipline are included in the employee's personnel files. [Tipton Decl., Exh. H (excepts of 3/2/12 depo. of Wayne F. Steel) at 107-08, Witness Clarification Sheet.] He also testified that investigative reports and information about Plaintiff's EEOC charges would be maintained in separate, confidential files. [ Id. at 80, 84-85.] Defendants argue that the only blemish in Plaintiff's personnel file is the Sims incident, which was the basis of Plaintiff's termination. [Mem. in Supp. of Motion at 19.]

Defendants also argue that Plaintiff cannot prevail on her aiding and abetting claims based either on Defendant Tate's October 2007 report about his fear that Plaintiff might discriminate against Ms. Jura and Ms. Murakami or his August 2008 report that Plaintiff called them " idiots and morons" and that Plaintiff claimed she was responsible for DPA Rivera's demotion.

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Defendants contend that: Defendant Acob had a duty to investigate these complaints; the investigations were confidential; and the investigations could not be a pretext for discriminatory actions because Plaintiff did not suffer any adverse employment actions as a result of the investigations. [ Id. at 19-20.]

Defendant Tate made the October 2007 report to DPA Rivera, who was the EEOC Officer at the time.[9] [Tate Decl. at ¶ 6; Defs.' CSOF, Decl. of Robert D. Rivera (" Rivera Decl." ) at ¶ 7.] Defendants characterize the report as " more of an expression of concern" that " ‘ was not ... a formal complaint [.]’ " [Mem. in Supp. of Motion at 21 (quoting Steel Decl., Exh. J).] Mr. Steel testified that Defendant Acob assigned him to look into the October 2007 report. [Tipton Decl., Exh. H at 58.] Plaintiff was informed of Defendant Tate's report, and she was allowed to submit a response and a cross-allegation of discrimination, which the Department also investigated. [Steel Decl. at ¶ 8, Exh. T (Plaintiff's responsive complaint).] Mr. Steel, DPA Rivera, and DPA Melinda Mendes all believed that, during the time of the 2007 events, Plaintiff was jealous of Defendant Tate's relationships with other women in the Department, including Ms. Jura and Ms. Murakami, and/or Plaintiff had romantic feelings for Defendant Tate herself. [Steel Decl., Exh. J; id., Exh. L (notes of Mr. Steel's November 23, 2007 interview with Ms. Jura); id., Exh. K (excerpts of 2/17/12 depo. of Robert Rivera) at 44; Defs.' CSOF, Decl. of Melinda K. Mendes at ¶ 9.] DPA Rivera also states that, at an October 29, 2007 management meeting, Plaintiff recommended that Ms. Murakami be fired. [Rivera Decl. at ¶ 9.] DPA Rivera advised against Ms. Murakami's termination because he thought there might be some merit to Defendant Tate's complaint about Plaintiff discriminating against Ms. Murakami. [ Id. at ¶ 4; Tipton Decl., Exh. K at 37-38, 41-42.] DPA Rivera told Defendant Tate about Plaintiff's recommendation and advised Defendant Tate to bring his concerns to Defendant Acob. Defendant Acob, however, demoted DPA Rivera for sharing this information with Defendant Tate. [Rivera Decl. at ¶¶ 9-10; Tipton Decl., Exh. K at 25.] Defendants argue that, under the circumstances, Defendant Acob had a duty to investigate Defendant Tate's complaint. [Mem. in Supp. of Motion at 25.]

Defendant Acob ultimately found that Defendant Tate's complaint about discrimination against Ms. Jura and Ms. Murakami was " unsubstantiated" . [Tipton Decl., Exh. N (Report of Conference, dated 11/21/07) at 1.] Defendant Acob asked Defendant Tate to keep the matter confidential. Defendant Tate asked if Plaintiff was still involved in the decision-making about Ms. Murakami's employment. Defendant Acob responded that Plaintiff " may be kept out of it, but he would not be precluded in considering [Plaintiff's] evaluation." [ Id. ] The Report of Conference states that there was another complaint that was still under investigation. [ Id. ]

Defendant Acob later offered both Ms. Jura and Ms. Murakami the chance to resign. Ms. Murakami accepted and resigned effective December 3, 2007. Ms. Jura declined and was terminated effective December 7, 2007. [Acob Decl. at ¶ 5.] Plaintiff was on a medical leave at that time.

Defendant Acob also determined, based on the investigation, that Plaintiff's complaint against Defendant Tate alleging sexual harassment and hostile work environment was unsubstantiated. He met with

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Defendant Tate on December 14, 2007 and informed Defendant Tate of his determination. He also told Defendant Tate that Plaintiff " was ‘ a good supervisor and it would be unfortunate if she would leave because of her distaste’ for him'." [ Id. at ¶ 6.]

Defendants argue that Defendant Tate did not incite Defendant Acob to discriminatory conduct, as evidenced by the fact that Defendant Acob: ruled in Plaintiff's favor regarding Defendant Tate's complaint; terminated Ms. Jura's and Ms. Murakami's employment as Plaintiff recommended; told Defendant Tate that Plaintiff was a good supervisor; and did not discipline ...


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