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Ignacio v. County of Hawaii

United States District Court, D. Hawai'i

March 27, 2013


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For Terence Ignacio, Plaintiff: Brian J. De Lima, Francis R. Alcain, Robert John Crudele, LEAD ATTORNEYS, Crudele & De Lima, Hilo, HI.

For County of Hawaii, Hawaii Police Department, Harry S. Kubojiri, Defendants: Diane A. Noda, LEAD ATTORNEY, Corporation Counsel, County of Hawaii, Hilo, HI; Laureen L. Martin, LEAD ATTORNEY, Office of the Corporation Counsel, County of Hawaii, Hilo, HI; Michael J. Udovic, LEAD ATTORNEY, Office of the Corporation Counsel-Big Island, Hilo, HI.


Susan Oki Mollway, Chief United States District Judge.

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Plaintiff Terence Ignacio was formerly a police officer on probationary status with the Big Island of Hawaii's Police Department (the " Police Department" ). Am. Compl., ECF No. 9. Ignacio is suing the Police Department and Police Chief Harry S. Kubojiri in his individual and official capacity (collectively, " Defendants" ) for having wrongfully terminated him after the Department conducted an internal investigation into his conduct. Id. Ignacio alleges that, in terminating him, the Police Department failed to follow its internal complaint procedures (Counts I and II) and failed to abide by its collective bargaining agreement (" CBA" ) with the State of Hawaii Organization of Police Officers (" SHOPO" ) (Counts III and IV). Ignacio further alleges that Defendants engaged in " prohibited coercion and reprisal" (Count V) and failed to treat him fairly (Count VI). In addition, Ignacio asserts that, under the Police Department's internal complaint procedures and the SHOPO CBA, he was not an " at-will" employee (Count VII), and that the Police Department breached a duty of care it owed him (Count VIII). Finally, Ignacio alleges that Defendants violated his rights under the First, Fifth, and Fourteenth Amendments (Counts IX and X).

Currently before the court are Ignacio's motion for partial summary judgment on Counts I through IV, ECF No. 52, and Defendants' motion for summary judgment on all claims, ECF No. 57. These motions mirror each other, at least with respect to Counts I through IV. Ignacio also brings two motions for partial summary judgment that address defenses raised by Defendants. ECF Nos. 54, 56. This court grants summary judgment to Defendants on all claims, meaning that Ignacio's motion for summary judgment on Counts I to IV is correspondingly denied and his challenges to defenses fail.


Ignacio applied to be a police officer with the Police Department in late 2008.[1] As a part of his application, Ignacio signed a " Waiver of Liability and Release Form," authorizing the Police Department " to make a thorough investigation . . . for the purpose of determining [his] suitability for employment with the [P]olice Department." ECF No. 89-10. He also " agree[d] to hold harmless and release from liability under any and all possible causes of legal action the Department, its officers, its employees, and its agents, for any statements, acts, or omissions in the course of its investigation into [his] background, family, personal habits, and reputation." Id.

Ignacio began working as a " Police Officer I" on November 17, 2008. See Am.

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Compl. ¶ 1, ECF No. 9. From the time he began his employment, Ignacio was subject to the Police Department's Standards of Conduct, " whether on or off duty." ECF No. 59-30. Like all new police officers, Igancio was required to complete an 18-month initial probationary period before becoming a " regular employee." See SHOPO Supplemental Agreement, ECF No. 59-6. During this initial probationary period, Ignacio was " not entitled to any seniority or tenure rights" or to use the grievance or appeal procedure set forth in the SHOPO CBA. Id.

While on probation, Ignacio received a " not acceptable" performance rating " in the areas of officer's safety, radio communications, and report writing and grammar." Memo re: Extension of Field Training Officer Program, ECF No. 59-8; Ignacio Dep. at 174, ECF No. 59-9. The Police Department extended Ignacio's probationary period for two months. The Police Department said that, while the extension in the Field Training Program " should not be construed as a disciplinary action," it did " not preclude the department from taking action prior to the date of your extended [probation]; to include termination of employment from the [] Police Department should you not meet an acceptable level of performance." Id.

There is no dispute that, on April 24, 2010, Ignacio called in sick for a shift that ran from 2:45 p.m. until 11:30 p.m. Dep. of Terence Ignacio (" Ignacio Dep." ) at 142, ECF No. 59-8. It is also undisputed that, after dark that evening, Ignacio called his fiancee, Kaitlyn Ogi, and ended their engagement because he thought she was cheating on him with a man named Dennis Hollowell. Id. at 51, 137, 142. Ogi was at Hollowell's house that evening. Id. at 137; see also Decl. of Dennis Hollowell (" Hollowell Decl." ) ¶ ¶ 3-8, ECF No. 59-41; Decl. of Jodi Ferreira (" Ferreira Decl." ) ¶ ¶ 4-11, ECF No. 59-39.

Hollowell and his housemate assert that, after one of their dogs began barking like " crazy" at some point between 10 p.m. and 11 p.m. that evening, Ogi and Hollowell received phone calls from Ignacio. Hollowell Decl. ¶ ¶ 3-4; Ferreira Decl. ¶ ¶ 4-5. See also Ignacio's Phone Records, ECF No. 59-28 After ending a call with Ignacio, Hollowell told his roommate, " I can hear someone on the roof and I can hear the dogs barking over the phone. [Ignacio] is here." Ferreira Decl. ¶ 6. The next day, Hollowell's roommate " noticed some dents in the roof" and thought that " [i]t looked like someone had walked on the roof." Id. ¶ 9.

Ignacio admits only that he drove past Hollowell's home on the evening of April 24, 2010. Ignacio Dep. at 137. He claims that after he passed Hollowell's house, he saw Ogi's car, then called Ogi to say that their relationship was over. Id. at 137.

On April 26, 2010, Ogi filed eight complaints against Ignacio with the Police Department alleging harassment, theft, and multiple counts of domestic violence. See ECF Nos. 59-14, 59-15, 59-16, 59-17, 59-18, 59-19, 59-20. The next morning, the Police Department issued a Complaint Report based on Ogi's eight allegations against Ignacio. ECF No. 59-11. That same day, Ogi obtained a temporary restraining order against Ignacio from the state court, ECF No. 59-22, and the Police Department placed Ignacio on a leave of absence without pay. See ECF No. 59-23. The Police Department initiated both an Internal Affairs investigation and a criminal investigation. Decl. of Harry Kubojiri (" Kubojiri Decl." ) ¶ 14, ECF No. 59-39. Ignacio was advised of his " right to review Article 12" of the SHOPO CBA and to have " the opportunity to consult with a union representative" when responding to the administrative investigation. Kimura Letter to Ignacio, ECF No. 9-1, Page ID

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# 170. With respect to the criminal investigation, Ignacio was instructed not to interfere with the Police Department's work. See Letter to Ignacio from the Police Department, ECF No. 59-23.

The Internal Affairs investigation considered information from a variety of sources, including Ogi's TRO, Ignacio's phone records, the Police Department's database, and interviews of at least thirteen witnesses, including Ignacio, who was interviewed in the presence of a SHOPO representative. Decl. of Alan Kimura ¶ 9, ECF No. 59-37. The investigation revealed, among other things, that Ignacio had accessed the official Police Department database and, while on duty, had searched for Hollowell's name on three separate occasions with no legitimate work-related reason. Decl. of James B. O'Connor, ECF No. 59-42.

Internal Affairs completed its investigation and issued a 250-page report on May 10, 2010. Kubojiri Decl. ¶ 16, ECF No. 59-38. That same day, the Police Department sent Ignacio a letter terminating him at the close of the next business day for the conduct described in the Police Department's Complaint Report. That conduct related to whet Ogi had alleged. ECF No. 59-32. After Ignacio was terminated, the Police Department " cleaned out his locker and discovered evidence which had not been properly secured and logged. As a result, [a second Internal Affairs] investigation was initiated." Kubojiri Decl. ¶ 20, ECF No. 59-38.

Exactly one week after Ignacio's termination, he filed an Internal Complaint seeking reinstatement with the Police Department. ECF No. 59-29. Citing his rights under the SHOPO CBA, which governed disciplinary proceedings, Ignacio also requested access to the recording of his interview with Internal Affairs, along with " copies of all documents, recordings, and other things considered in the investigation of [his] case." Letter to Kubojiri, ECF No. 59-33.

Exactly two weeks after Ignacio was terminated, he and Ogi entered into a " settlement agreement." Ignacio Dep. at 173, ECF No. 59-9. As part of the settlement agreement, Ogi " agreed to withdraw the charges against [Ignacio] and dismiss the TRO." Id. That same day, Ogi withdrew all eight complaints with the Police Department, ECF No. 59-25, and Ignacio wrote Ogi a check for $2,500. ECF No. 59-26.

On June 2, 2010, Chief Kubojiri replied to Ignacio's letter seeking all materials relating to the Internal Affairs investigation. Kubojiri Letter to Ignacio, ECF No. 59-34. Kubojiri first informed Ignacio that, while Ignacio's letter referred to the SHOPO CBA, the Police Department " terminated [Ignacio's] initial probationary appointment as a Police Officer I. Any characterization that the termination of your probationary appointment was a disciplinary matter is incorrect." Id. Kubojiri gave Ignacio a recording of his Internal Affairs interview but declined to provide " other documents, recordings, or other things considered as a part of the administrative investigation concerning [Ignacio] pursuant to Hawai'i Revised Statutes § § 92F-13 and 92F-22." Id.

Chief Kubojiri wrote another letter to Ignacio on June 23, 2010, informing Ignacio about the second Internal Affairs investigation. Kubojiri Decl. ¶ 21, ECF No. 59-38. Kubojiri explained that it was standard procedure " for the Police Department to investigate all acts of wrongdoing which occur while a person is employed with the department, even if the person no longer is employed." Id. ¶ 22. " This is particularly important if the individual filed a grievance or appeal in an attempt to be reinstated" because " [i]f the [Police Department] failed to investigate and the person

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was reinstated, he/she would not be held accountable for the wrongdoing." Id.

On August 25, 2010, Ignacio and his attorney met with Kubojiri as part of a " mutual agreement to conditionally continue the Step-III process of the Internal Complaint Procedures for the purpose of determining whether additional information not previously provided . . . [to Ignacio], could now be released." Kubojiri Letter to Ignacio's Attorney, ECF No. 59-35. Kubojiri reaffirmed " the termination of Mr. Ignacio's initial probationary appointment as a Police Officer I" and maintained that the Police Department had a " right to terminate" Ignacio. Id. Kubojiri explained:

An appointing authority has the right to terminate employees, including " non-Civil Service employees," when the good of the service will be served. The law clearly states that " no employee shall be entitled to membership in civil service until the employee has [. . .] [s]uccessfully completed the initial probation period as required as part of the examination process to determine the employee's fitness and ability for the position[.]" . . . Your attempt to characterize Mr. Ignacio's termination as a disciplinary matter is incorrect and without merit.
For an employee who is not yet a Civil Service employee, an appeal would not be within the jurisdiction of the County's Merit Appeals Board and the Mayor's decision on such an appeal would be final and binding.


Ignacio subsequently filed an appeal with the Merit Appeals Board (the " Board" ). Kubojiri Decl. ¶ 27, ECF No. 59-38. Chief Kubojiri explained to the Board that the Police Department could not give Ignacio all the materials that Internal Affairs had considered in terminating Ignacio because of an ongoing criminal investigation relating to Ignacio's actions. Board Tr. at 896, ECF No. 59-44. After the hearing, the Board issued its Findings of Fact, Conclusions of Law, and Order Denying Appeal. See Merit Appeals Board Order, ECF No. 9-3. The Board found that Chief Kubojiri, after reviewing the Internal Affairs investigative report, had concluded that Ignacio had not been truthful. Board Order ¶ 22, ECF No. 9-3. The Board also found that Kubojiri " had concerns about [Ignacio's] credibility" because some things Ignacio said in his Internal Affairs interview were " contradicted by other information uncovered by" the Internal Affairs investigation. Id. ¶ 23. Finally, the Board accepted as true Kubojiri's statement that credibility was essential for police officers because an officer with a reputation for not being credible reflected on the Police Department as a whole. Id. ¶ 24. Specifically, the Board believed that Kubojiri was concerned that Ignacio had lied in saying that he did not know Hollowell, whose records, according to the Internal Affairs investigation, Ignacio had accessed through the Police Department's database on three separate occasions. Id. at 25.

The Board issued the following conclusions of law:

1. The above Findings of Facts are incorporated into these Conclusions of Law.
2. The party initiating a proceeding has the burden of proof, including the burden of producing evidence and the burden of persuasion. Further, the quantum of proof shall be a preponderance of the evidence. Hawai'i Revised Statutes, § 91-10(5).
3. The requirement to evaluate a probationary employee is set forth at Section 3-38(b)(1), entitled Probationary appointment, Rules of the Department of Civil Service, Title I - Rules of the Director, Chapter 3, Subchapter 6, p. 3-17

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(amended. According to § 3-38(b) initial probation shall be utilized as part of the examination process to determine the employee's fitness and ability for employment in the position and the civil service.
4. [Ignacio] was terminated for multiple violations of General Order 300.IV.D. Based on the [Internal Affairs] investigation, Chief Kubojiri concluded [Ignacio] was not credible, acted inappropriately, and exercised poor judgment.
5. The Board concludes that the Appellant was treated fairly and impartially during the [Internal Affairs] investigation.
6. The Board concludes the decision of [the Police Department] to terminate [Ignacio] was not arbitrary or capricious.
7. The Board concludes the decision of [the Police Department] did not violate any civil service laws, rules, or regulations in its decision to terminate the initial probation of [Ignacio] ...

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