United States District Court, D. Hawaii
CARL A. RAGASA, Plaintiff,
COUNTY OF KAUA'I; ROBERT F. WESTERMAN; KALANI VIERRA; NORMAN HUNTER; JOHN DOES 1-50; JANE DOES 1-50; DOE ASSOCIATIONS 1-50; DOE PARTNERSHIPS 1-50; DOE CORPORATIONS 1-50; AND DOE GOVERNMENTAL AGENCIES 1-50, Defendants.
ORDER GRANTING IN PART AND DENYING IN PART: (1)
ROBERT F. WESTERMAN'S, IN HIS INDIVIDUAL CAPACITY, MOTION
FOR SUMMARY JUDGMENT [DKT. NO. 105]; (2) KALANI VIERRA'S,
IN HIS INDIVIDUAL CAPACITY, MOTION FOR SUMMARY JUDGMENT [DKT.
NO. 108]; (3) NORMAN HUNTER'S, IN HIS INDIVIDUAL
CAPACITY, MOTION FOR SUMMARY JUDGMENT [DKT. NO. 112]; (4)
COUNTY OF KAUAI'S MOTION FOR SUMMARY JUDGMENT [DKT. NO.
115]; AND (5) CARL A. RAGASA'S FRCP 12(B)(6) MOTION TO
DISMISS NORMAN HUNTER'S COUNTERCLAIM FILED OCTOBER 12,
2015 [DKT. NO. 118]
DERRICK K. WATSON, District Judge.
Carl Ragasa alleges that the County of Kauai Fire Department
("KFD") and KFD supervisors, Robert F. Westerman,
Kalani Vierra, and Norman Hunter, retaliated against him
after he reported improper conduct by fellow KFD employees
that included gas theft, on-duty drug use, and the
falsification of time sheets. Because issues of fact persist
with respect to Ragasa's 42 U.S.C. Â§ 1983 First Amendment
retaliation claim against the individually named Defendants
(Count I), as well as his Hawaii Whistleblowers Protection
Act, Haw. Rev. Stat. ("HRS") Â§ 378-62 claim against
the County (Count III), the motions for summary judgment are
DENIED as to those claims. The motions are GRANTED with
respect to the Section 1983 municipal liability claim against
the County (Count II), and the intentional infliction of
emotional distress claim against the individually named
Defendants (Count IV). Finally, the motions are GRANTED IN
PART with respect to the respondeat superior
liability claim against the County (Count V).
motion to dismiss Hunter's Counterclaim is GRANTED as to
Counts I and II and DENIED as to the remaining Counts.
is employed by KFD as a Water Safety Officer
("WSO") in the Ocean Safety Bureau
("OSB"), the agency encompassing the County's
lifeguard program. He has worked for the County for over 23
years. Ragasa does not have supervisory responsibilities, and
his duty is to patrol the beaches, keep the public safe from
any dangers they encounter in the water, and rescue swimmers
in need. See Ragasa Decl. Â¶ 2.
matter involves alleged retaliation by several of
Ragasa's supervisors by means of informal and formal
discipline. Defendant Vierra is a KFD Ocean Safety Director,
and Hunter is a KFD Water Safety Officer Supervisor. Both
supervise Ragasa. Westerman is the Chief of the KFD, in
charge of the entire department, including Ragasa and his
supervisors. While other supervisors may discipline
subordinates, disciplinary actions that are more severe than
a written reprimand, such as suspensions or terminations,
must be formally approved by Westerman or the KFD Deputy
Chief. Declaration of Robert Westerman in Support of County
Motion ("Off. Cap. Westerman Decl.") at Â¶ 2 [Dkt.
relating to workplace issues filed by non-exempt or
non-management employees, such as Ragasa, are governed by a
process subject to a Collective Bargaining Agreement
("CBA"). Generally, as Chief, Westerman does not
initiate a formal investigation unless a complaint is
submitted in writing. Disciplinary action imposed by
Westerman based upon employee misconduct can be challenged by
filing a "Step I" grievance form, followed by a
"Step II" hearing pursuant to the CBA's
grievance process. The employee may attend the Step II
hearing with a union representative and provide evidence
challenging the disciplinary action, after which Westerman
can confirm or alter the disciplinary action. Off. Cap.
Westerman Decl. Â¶Â¶ 3-4. If the employee is dissatisfied with
the Step II decision, he or she may challenge the decision at
a "Step III" grievance hearing administered by the
County Department of Human Resources ("DHR"), which
may alter the disciplinary action or overturn it entirely.
Under this configuration, the KFD Chief does not have the
ultimate authority to impose workplace discipline on
non-exempt and non-management KFD employees-that authority
resides with DHR. Off. Cap. Westerman Decl. Â¶ 5. Even Step
III decisions maybe challenged via arbitration. See
e.g. Westerman Ex. 41 (8/7/15 Arbitration Decision).
Ragasa's 2010 Report to Hunter
has a history of workplace disputes with KFD administration.
The incidents relevant to the instant case began in March
2010 when Ragasa reported to Hunter having observed another
KFD employee stealing gas from the County. Vierra Ex. 1
(8/19/2015 Ragasa Dep. Tr.) at 28-33. Ragasa claims that this
employee was both Vierra's friend and partner in an
unrelated business. 8/19/2015 Ragasa Dep. Tr. at 43-50.
According to Ragasa, Hunter said he would take care of it and
pass the information up the chain of command. Ragasa Decl. Â¶
10. In fact, Hunter confirmed that he relayed Ragasa's
report to his supervisor, Vierra, who told him that he would
investigate. 7/29/15 Hunter Dep. Tr. at 42. According to
Vierra, he then, in turn, relayed Ragasa's report to
Westerman, and Westerman told Vierra to have Hunter interview
the employee whom Ragasa had accused of stealing the gas.
8/18/15 Vierra Dep. Tr. at 40-41. Hunter reported back to
Vierra that the employee denied any gas theft, and no written
report was made regarding the matter. 8/18/15 Vierra Dep. Tr.
the time period he reported the alleged gas theft, and
unbeknownst to Ragasa, a County-wide audit of gas dispensing
practices was underway. As a result of this private audit,
changes were made to the process of fueling County vehicles
and special keys and gas cards were issued to personnel.
8/18/15 Vierra Dep. Tr. at 175; 7/29/15 Hunter Dep. Tr. at
46; 7/30/15 Westerman Dep. Tr. at 47-48, 178-180.
March 25, 2010, approximately a week after reporting the gas
theft to Hunter, Ragasa asserts that Hunter arrived at the
Anahola lifeguard tower where Ragasa was stationed and yelled
at him about the cleanliness of a County truck there. Ragasa
Decl. Â¶ 12. Three weeks later, Hunter filed a "KFD Form
103 Report" and a "KFD Form 110 - Violence in the
Workplace Report" based on the March 25, 2010 incident.
In his April 13 and 14, 2010 reports, Hunter claims that when
he tried to speak privately with Ragasa, Ragasa "made a
stance that I recognized as a martial arts stance, " and
told Hunter to "beat it." Ragasa Ex. 11 (4/13/10
and 4/14/10 Hunter KFD Form 103), attached to CSOF in
Opposition to Hunter Motion [Dkt. No. 126]. Hunter claims
Ragasa raised his voice and waved his arms, "threatening
to bring down the lifeguard program and Fire Dept."
Ragasa Ex. 12 (4/13/10 Hunter KFD Form 110), attached to CSOF
in Opposition to Hunter Motion [Dkt. No. 126]. Hunter
submitted these reports to Vierra, who forwarded them to
Westerman, who instructed Vierra to investigate. 8/18/15
Vierra Dep. Tr. at 90-91. According to Ragasa and Vierra, the
parties worked it out in person during a conversation at the
Anahola tower. The three (Hunter, Vierra and Ragasa)
agreed to work on better communication and keeping KFD
equipment in good condition, and ended their discussion by
shaking hands. Ragasa Decl. Â¶ 13; 8/18/15 Vierra Dep. Tr. at
91-92. Vierra then informed Westerman of the results of the
investigation and meeting. 8/18/15 Vierra Dep. Tr. at 91-92.
Report of Employee Drug Use
early 2012, Ragasa reported to Hunter that another WSO was
smoking marijuana on duty in the Anahola lifeguard tower.
Declaration of Norman Hunter in Support of Individual
Capacity Motion ("Ind. Cap. Hunter Decl.") Â¶ 19
[Dkt. No. 113]; 8/19/15 Ragasa Dep. Tr. at 60-61. According
to Ragasa, Hunter's response was that he would speak to
the employee, and Ragasa believes that the employee was
transferred to a different lifeguard tower following his
report to Hunter, because he never worked with that employee
again. 8/19/15 Ragasa Dep. Tr. at 69, 171-72. Ragasa believes
that the employee that was allegedly smoking marijuana was a
friend of Hunter. 8/19/15 Ragasa Dep. Tr. at 193. Hunter
states that following Ragasa's report, he spoke with the
accused employee, who denied smoking marijuana in the
lifeguard tower. Ind. Cap. Hunter Decl. Â¶Â¶ 20-21. According
to Hunter, because there was no other witness or evidence of
drug use by the employee, "there was nothing else for
[him] to investigate." He conveyed both Ragasa's
complaint and his own inquiry to Vierra, his immediate
supervisor, who concurred with both Hunter's actions and
conclusions. Ind. Cap. Hunter Decl. Â¶Â¶ 22-23; see
also 7/29/15 Hunter Dep. Tr. at 52-53.
October 26, 2012 Training Incident and Investigation
October 26, 2012, Ragasa attended a mandatory OSB Workplace
Violence training program conducted by WSO Gerald Hurd.
Ragasa was not in uniform and left the training session
before it ended. Hurd filed a written complaint, and a KFD
Form 110-Violence in the Workplace Report after Ragasa walked
out of the training. See Westerman Ex. 1 (10/26/12
Complaint) and Ex. 2 (Hurd KFD 110), attached to CSOF in
Support of Westerman Motion [Dkt. No. 106]. According to
Hurd, Ragasa was upset that the training consisted of
watching a DVD presentation, and told Hurd to "bring him
the DVD to his tower and he could watch it there."
Westerman Ex. 1 (10/26/12 Complaint). Ragasa also called Hurd
and the KFD administration "clowns." Westerman Ex.
1 (10/26/12 Complaint) and Ex. 2 (Hurd KFD 110).
assigned Vierra to conduct an investigation of Hurd's
complaint, directing him to speak to the personnel in
attendance at the training session before reporting back.
8/18/15 Vierra Dep. Tr. at 70.
October 29, 2012 Report to Vierra, Investigation, and
October 29, 2012, Ragasa called Vierra by telephone to find
out why Vierra was investigating him. 8/18/15 Vierra Dep. Tr.
at 71. Vierra told Ragasa he was assigned to investigate the
October 26, 2012 workplace violence training incident with
Hurd, and asked Ragasa why he left the training session
early. Id. According to Vierra, Ragasa first
responded that he left because the air conditioning was
making him feel sick. Vierra then asked him why he was out of
uniform, and Ragasa did not respond. Id. When Vierra
asked why Ragasa reported to his lifeguard tower after
leaving the training if he felt sick, Ragasa told him that
the sunlight makes him feel better. Id.
to Vierra, Ragasa then told him that "the guys in the
tower don't respect me, " mentioned "something
about time sheet forgery" at the workplace violence
training session, and that he had videotapes of Vierra
stealing County gas. 8/18/15 Vierra Dep. Tr. at 72. Vierra
asked Ragasa if he could see the videotapes, and Ragasa hung
up on him. Id. Vierra felt threatened by Ragasa, so
he filled out a KFD Form 110-Violence in the Workplace
Report, and reported the matter to Westerman in person.
Id. Vierra's Form 110 states, "He verbally
harassed me by telling me that I am greedy and that no one
respect[s] me. Also told me that I gave myself a raise and I
don't care [about] the guys on the line. His verbal tone
was intimidating and anger." Westerman Ex. 3 (10/31/12
Vierra Form 110). Westerman pulled Vierra off of the
investigation, and appointed another KFD officer to
investigate Hurd and Vierra's workplace violence reports.
8/18/15 Vierra Dep. Tr. at 78-79, 174.
November 5, 2012, Westerman prepared a letter to Ragasa
informing him that he would be placed on leave with pay
effective November 6, 2012, pending investigation of the two
workplace violence complaints filed against him. Westerman
Ex. 4 (11/5/12 Letter). The November 5, 2012 letter
instructed Ragasa to contact Westerman or Battalion Chief
Russell Yee if he had any questions. Id. Westerman
followed up in a November 26, 2012 letter, informing Ragasa
the Department is conducting investigations into allegations
regarding workplace violence and violations of Department
policy and the Ocean Safety Bureau Standard Operating
Guidelines. It has been alleged that you committed the act of
workplace violence at the mandatory training on October 26,
2012 and also when you spoke to the Ocean Safety Supervisor
on the phone  regarding the investigation. It has also been
alleged that you have evicted fellow Ocean Safety personnel
from the Anahola tower and intimidated or attempted to
intimidate tower personnel and supervisors.
In order to complete those investigations, the interview we
have scheduled for you on Friday, November 30, 2012 at 9:00
a.m. will also cover those allegations and afford you the
opportunity to provide us with your account of those
incidents. The interview will be conducted by Battalion Chief
Ex. 5 (11/26/12 Letter).
completed and signed a written questionnaire on November 30,
2012 during his interview with Battalion Chief Yee,
acknowledging that he left the October 26, 2012 training
early, but said that it was because he was feeling sick.
Westerman Ex. 5 (11/30/12 Questionnaire). Yee completed a
summary of his investigation on December 9, 2012. Westerman
Ex. 7 (12/9/12 Summary of Investigation).
December 17, 2012, Ragasa was issued five Notices of
Disciplinary Action ("NDA") arising from the
October 26 and October 29, 2012 incidents. See
Westerman Exs. 8-12. Three of the NDAs related to the October
26, 2012 training: (1) "name calling and overt
gestures... calling the supervisor and administration clowns,
" resulting in a suspension of ten days, see
Westerman Ex. 8; (2) attending training "wearing a Bud
Light logo shirt and red non-uniform shirt, " resulting
in a written reprimand, see Westerman Ex. 9; and (3)
"abruptly left training session without permission,
" resulting in a one-day suspension, see
Westerman Ex. 10. The remaining NDAs related to the October
29, 2012 telephone call to Vierra, which resulted in a
ten-day suspension for "threaten[ing] Supervisor with
exposure of supposed criminal acts, " see
Westerman Ex. 11; and another ten-day suspension for
intimidating other lifeguards at the Anahola tower,
see Westerman Ex. 12.
notified Ragasa in a letter dated January 14, 2013, that the
NDA relating to the Anahola tower had been amended and
clarified to reflect the dates of the underlying conduct:
During the period of 2010 through the present, employee has
made unreasonable demands without valid reason and used
intimidation to dictate who will or will not work at the
Anahola Tower, or when an individual could work at that
tower, to both his regular supervisor, temporary supervisors,
and fellow workers.
These incidents were brought to the attention of Fire
Administration in February 2012.
January 7, 2013, pursuant to the CBA, Ragasa filed Step I
grievances relating to the December 17, 2012 NDAs. Westerman
Exs. 15-18. A Step II grievance proceeding was held on April
30, 2013, and in a May 10, 2013 letter, Westerman responded
to Ragasa's union agent that he was upholding the
disciplinary actions taken, with the exception of the ten-day
suspension for the portion of the October 26, 2012 incident
involving threats to fellow employees. Westerman Ex. 23
(5/10/13 Letter) at 2. As to that portion, Westerman agreed
"to reduce the punishment to a verbal warning about
threatening and intimidating other employees."
Id. Ragasa's one-day suspension for abruptly
leaving the October 26, 2012 training session without
permission was also reduced to a written reprimand.
Id. at 1. Ragasa did not appeal those portions of
the disciplinary actions any further. See Westerman
Ex. 41 (8/7/15 Arbitration Decision) at 6.
challenged the remaining portions of the December 17, 2012
NDAs relating to the October 26, 2012 training incident
through the CBA's Step III grievance and arbitration
processes. At the Step III stage, the County DHR reduced
Ragasa's ten-day suspension for name-calling, gesturing,
and leaving early to a three-day suspension, and upheld the
written reprimand for the uniform violation. See
Westerman Ex. 33 (9/19/13 Step III Grievance Decision Re:
Uniform Policy) (written reprimand affirmed); Westerman Ex.
37 (10/16/13 Step III Grievance Decision Re: Name Calling and
Walking Out) (ten-day suspension reduced to three days). In
the portion of the consolidated arbitration relating to the
October 26, 2012 incident, the Arbitrator dismissed
Ragasa's grievance because the discipline was with
"proper cause, " and found that the County did not
violate the CBA when it imposed a suspension without pay of
three work days for the name calling and overt gestures, and
a written reprimand for the violation of the uniform policy
at the October 26, 2012 training session. Westerman Ex. 41
(8/7/15 Arbitration Decision) at 65.
successfully grieved the December 17, 2012 NDA relating to
the October 29, 2012 telephone call to Vierra, which had
resulted in a ten-day suspension for "threaten[ing]
Supervisor with exposure of supposed criminal acts, "
see Westerman Ex. 11. The ten-day suspension was
rescinded by the County DHR following an August 7, 2013 Step
III hearing. See Westerman Ex. 34 (9/20/13 Step III
January 24, 2013 Call to Hunter, Investigation, and
January 24, 2013, Ragasa telephoned Hunter to find out when
he would be able to return to work. According to Ragasa,
"Hunter started venting about other things with his job.
He told me the County is corrupt. He told me he was being
attacked by upper management and would get fired or demoted
if he didn't write up the guys at Anahola Tower. Hunter
also complained about all the cover-ups by the County."
Ragasa Decl. Â¶ 40.
to WSO Myles Emura, he had a telephone conversation with
Hunter on January 24, 2013, sometime after Hunter's call
During this conversation, Hunter also confirmed he was aware
there was a cover-up of: fuel theft by Kalani Vierra,
falsification of timesheets for "favored officers; and
unfair distribution of overtime for these "favored"
WSOs. Hunter also stated he would write a 103 with all of the
criminal, unethical violations that he knew about, observed
and heard about and that he would give this document to
of Myles Emura ("Emura Decl.") Â¶ 6. Emura avers
that "Hunter admitted to me that KFD administration was
out to get Carl Ragasa and that they were willing to falsify
documents to achieve their goal of getting him out."
Emura Decl. Â¶ 7.
filled out a KFD Form 103 a couple of days after his
conversation with Ragasa and gave it to Westerman. The
January 27, 2013 KFD Form 103 relates that Ragasa was unhappy
with his suspension. According to Hunter, Ragasa asked him
"if during him (Carl) reporting gas theft a couple of
years ago if I knew about it. I said yes I reported it. We
followed protocol and my supervisors did [their]
investigations. He then said again, so I did know of the
investigation, I said yes and it was reported." Ragasa
Ex. 16 (1/27/13 Hunter KFD Form 103), attached to CSOF in
Opposition to Hunter Motion [Dkt. No. 126]. Hunter's
January 27, 2013 KFD Form 103 states-
Carl then raised his voice and said you are being taped. And
he has letters to prove that I will get fired for [it]. Then
in his next breath told me that if I wrote a 103 telling of
his lawyers intentions to waiver my wrongs. For the letter
stating that I knew everything that the county was aware that
gas was being stolen. I feel I am being Blackmailed by this
Id. at 1. Hunter understood Ragasa to be raising
"issues that the county was covering up, " and
leveling accusations that Hunter knew "of all the wrongs
that the administration is doing." 7/29/15 Hunter Dep.
Tr. at 72.
January 28, 2013, Ragasa's co-worker, WSO Kleve Zarbaugh,
also submitted a KFD Form 103 addressed to Westerman and
Vierra, which states in part-
I feel that I've been slandered by Carl Ragasa and thrown
in the mix of some sort of blackmail attempt. I was told by
my supervisor Norm Hunter that Carl had some letters about
Norm and myself and Carl wanted Norm to write a 103 for him,
or else he would turn in the letters which could supposedly
jeopardize my job.
Ex. 18 (1/28/13 Zarbaugh KFD Form 103), attached to CSOF in
Opposition to Hunter Motion [Dkt. No. 126].
notified Ragasa by letter dated January 29, 2013 that he was
again being placed on leave pending investigation because-
while out on a previous suspension for hostile and
inappropriate behavior in the workplace, it is believed that
you have been going to the county lifeguard towers and
intimidating water safety personnel, essentially threatening
to blackmail these employees to force them to submit to your
demands otherwise you will be filing complaints against them
and/or including their names in allegations and/or complaints
you are threatening to make. As such, your behavior is deemed
detrimental to conducting a proper investigation of these
claims and to the operations of the workplace.
Ex. 19 (1/29/13 Letter).
assigned Battalion Chief Shawn Hosaka to conduct an
investigation into the incident, and Hosaka submitted his
report to Westerman on February 25, 2013. See
Westerman Ex. 20 (2/25/13 Report). Hosaka interviewed Ragasa,
Hunter, and WSOs Eric Pereza, Kleve Zarbaugh, and Jeff
McIntosh. Id. The investigation report notes that,
on January 22, 2013, Ragasa told Pereza that "he was
going after F-1 and Mr. Kalani Vierra, " and Pereza
"was uncomfortable about being dragged into this
situation about taking gas just because he (Mr. Pereza) was
stationed at the tower at the time." Westerman Ex. 20
(2/25/13 Report) at 3.
told Hosaka on February 12, 2013 that Ragasa called him on
January 24, 2013, seeking a letter from Hunter "to Mr.
Ragasa's lawyer claim[ing] that F-1, Kalani Vierra and
the Deputy Chief all knew about gas theft along with other
issues that the Administration all knew about."
Westerman Ex. 20 (2/25/13 Report) at 4. Hosaka interviewed
Ragasa on February 23, 2013, with his union representative
present. Hosaka requested that the interview not be recorded,
and Ragasa agreed. Westerman Ex. 20 (2/25/13 Report) at 4.
Ragasa told Hosaka that he visited the Anahola tower twice
during January 2013, and acknowledged asking WSO Kai
Wedemeyer to "write a 103" and to "write the
truth about everything to do with what's going on."
Westerman Ex. 20 (2/25/13 Report) at 4. Ragasa also spoke to
WSOs Chad Medeiros and Kaipo Jacquias by telephone, and they
indicated that they would "write 103's/statements
for him to help out." Westerman Ex. 20 (2/25/13 Report)
at 5. Ragasa told Hosaka during the February 23, 2013
interview that Hunter told him during their January 24, 2013
phone call "about all the criminal action  not being
reported and that [Deputy Chief] Blalock said Hunter would be
demoted if he doesn't write up some guys, all false
stuff." Westerman Ex. 20 (2/25/13 Report) at 5.
claims that he "never coerced, attempted to coerce,
intimidated or blackmailed any of my co-workers or
supervisors to make statements on my behalf." Ragasa
Decl. Â¶ 37. Notwithstanding these assertions, Hosaka's
report to Westerman concluded, "that workplace violence
in the form of intimidation and coercion was committed by
Ragasa in order to deflect the focus away from him."
Westerman Ex. 20 (2/25/13 Report) at 1.
notified Ragasa in an April 3, 2013 letter that the
investigation had been completed, and based upon his review,
Westerman found that "there was an attempt on
[Ragasa's] part to coerce and threaten a fellow employee
and a supervisor in order to benefit a case in which you may
or may not be preparing." Westerman Ex. 21 (4/3/2013
Letter). Westerman noted that, Ragasa had previously been
disciplined for disruptive and threatening behavior, and that
"this offense is part of an ongoing issue with you at
the workplace." Id. Enclosed with the letter
was an NDA signed on April 3, 2013, which included a
suspension of thirty days, covered by the leave of absence
without pay pending investigation for the period January 20,
2013 through February 28, 2013. The "reason for
discipline" stated on the NDA was-
Employee committed the act of intimidation and coercion
toward a fellow employee and a supervisor by threatening
inclusion in a lawsuit or other actions if they did not write
a Form 103 about incidents that may or may not have taken
place at work. This behavior was perceived by the fellow
employee and supervisor as threatening and possible
Ex. 21 (4/3/2013 NDA).
9, 2013, pursuant to the CBA, Ragasa filed a Step I grievance
relating to the April 3, 2013 NDA. Westerman Ex. 22. A Step
II hearing was held in July 2013 before Deputy Chief Blalock,
who concluded that "the level of discipline imposed in
this instance was both appropriate and warranted."
Westerman Ex. 24 (7/23/2013 Step II Grievance Decision). The
County DHR held a Step III hearing on November 1, 2013.
Westerman Ex. 39 (1/13/2014 Step III Grievance Decision). The
January 13, 2014 Step III Grievance Decision found that
Ragasa "has been disrupting operations and taking the
focus away from what needs to get done in the workplace,
" and agreed that disciplinary action was warranted, but
reduced the suspension from thirty to seven days.
Id. In the consolidated Arbitration Decision,
Ragasa's seven-day suspension was rescinded and ordered
removed and expunged from his personnel file. Westerman Ex.
41 (8/7/15 Arbitration Decision) at 66.
9, 10, and 13, 2013 Incidents, Investigation, and Discipline
9, 2013, Ragasa left his post at the Anahola tower during
lunch time without permission. When Hunter saw Ragasa driving
in his personal vehicle at lunch time, he went to the Anahola
tower and confirmed that Ragasa had left his station without
first checking out over the radio. 7/29/15 Hunter Dep. Tr. at
110-112. Hunter filled out a KFD Form 103 to document
Ragasa's absence. Id.; see also Westerman Ex. 41
(8/7/15 Arbitration Decision) at 51 (quoting Hunter KFD Form
103). Ragasa acknowledges leaving for lunch without
permission, but contends that the practice was widespread and
that other WSOs were not punished for leaving their posts
without checking out. He claims that "Hunter did not
require guards to radio or call him before leaving. Hunter
previously stated to me and other guards that as long as
somebody cover or got coverage, somebody can run and get
lunch." Ragasa Decl. Â¶ 47.
10 and 13, 2013, the County contends that Ragasa closed and
departed the Anahola tower early, before the public beach
closure time, leaving the beach unattended. See
Westerman Exs. 25-28. Hunter submitted a KFD Form 103 to
Westerman, dated July 10, 2013, which states-
Carl Ragasa has been leaving tower early with emergency truck
and not checking out. Called Anahola truck to ask what time
he checked out. (No response) then called tower. No Response,
I then call Chad [Medeiros'] personal phone. No answer.
At 5 pm got a call from Chad, then I asked, what time Carl
and him closed tower. Chad said 4:25 pm and he needed to
leave cause he felt unsafe by himself. I gave another warning
about checking out and leaving early. I then called dispatch
to let them know that no checkout at Anahola tower so it is
Ex. 23 (Hunter 7/10/13 KFD Form 103); see also
Ragasa Ex. 24 (7/10/13 Dispatch Recording), attached to CSOF
in Opposition to Hunter Motion [Dkt. No. 126].
and Westerman subsequently received emails sent to the County
Mayor's office by Elizabeth Gonzalez-who is Hunter's
wife-and Denise Love, complaining that the Anahola tower
closed early on July 13. 8/18/15 Vierra Dep. Tr. at 150-155.
According to Hunter, he did not discuss the matter with his
wife and was not aware that she had emailed a complaint
regarding the early closure to the Mayor's office until
he was notified of the fact by Vierra and
Westerman. 7/29/15 Hunter Dep. Tr. at. 144-45
to Ragasa, he did not leave Anahola tower early on either
July 10 or July 13, 2013. He claims that, on July 10, 2013,
after shutting down the tower, he patrolled the beach one
final time before returning the County truck to base, a
practice that usually takes 5 to 10 minutes. Ragasa Decl. Â¶Â¶
50-52. Ragasa avers that, prior to July 2013, "Hunter
never spoke to me or warned me about complaints that I was
closing the tower early, nor did he speak to me or warn me
that I was not supposed to leave at lunch and/or that I must
call in first." Ragasa Decl. Â¶ 65. He also contends
that, before "July 2013, many WSO's closed their
towers a few minutes early and did not routinely check out
via radio from their towers when they closed their towers. I
can hear if and when the WSO's radio dispatch over the
radio." Ragasa Decl. Â¶ 66.
assigned Vierra to investigate the July 9, 10, and 13, 2013
incidents. 8/18/15 Vierra Dep. Tr. at 114-15. At
Westerman's direction, Vierra consulted with the KFD,
County Attorney's Office, and Human Resources Department
because the closure of the tower involved public safety
concerns. Id. at 118. A questionnaire was formulated
to distribute to employees with knowledge of the closures.
Id. Vierra interviewed Ragasa, other WSOs who worked
at the Anahola tower, as well as Gonzalez and Love.
Id. at 150-155. Vierra also reviewed the radio
dispatch logs to determine whether the WSOs had called in to
check out of the Anahola tower on July 10 and 13, 2013.
Ragasa was placed on leave pending the results of the
investigation. Westerman Ex. 25 (4/25/15 Letter).
September 9, 2013 letter, Westerman notified Ragasa that the
investigation was complete and issued four separate NDAs: (1)
a three-day suspension to Ragasa for leaving his post to get
lunch without permission on July 9, 2013; (2) a five-day
suspension for closing Anahola tower early on July 10, 2013;
(3) another five-day suspension for closing Anahola tower
early on July 13, 2013; and (4) a ten-day suspension for
falsification of time-sheets and tower logs when leaving
Anahola tower for lunch without permission on July 9, 2013,
and closing the tower early on July 10 and 13, 2013.
See Westerman Ex. 27 (9/9/15 Letter), and Exs. 28
through 31 (9/9/13 NDAs).
grieved the NDAs. See Westerman Ex. 35 (9/23/15 Step
I Grievance) and Ex. 38 (11/29/13 Step II Letter). At the
Step II grievance hearing held on November 20, 2013, Ragasa
notified Westerman that he had a tape recording of a July
2013 conversation between Hunter and Medeiros, in which the
two are heard discussing the closing time of the Anahola
tower. Westerman Ex. 38 (11/29/13 Step II Letter) at 2.
Following the November 20, 2013 Step II grievance hearing,
Westerman upheld the September 9, 2013 NDAs. Id. at
2-3. With respect to the early closures on July 10 and 13,
2013, he concluded-
Although [Ragasa] denied closing the tower early, the
investigation contradicts his claim. In addition, [Ragasa]
submitted Tower Logs and his time sheet reflecting that he
had worked till 5:00 p.m. on both dates, thus committing the
act of falsification of documents, which is a violation of
The Department has an obligation to follow up on complaints
received, and all information received through the
investigation is carefully reviewed before action is taken.
Policies and operating guidelines are created for safety
reasons and to maintain order within the organization and
must be followed. Leaving the tower without proper
authorization is a clear violation. Early closure of the
tower is very serious in nature, as it affects the safety of
the public we serve, and falsification of documents to cover
up the violation compounds the issue.
Id. at 2.
a January 30, 2014 Step III grievance hearing, the County DHR
reduced the disciplinary actions imposed by Westerman. With
respect to the July 9, 2013 incident, the Step III decision
found that, although Ragasa "did not follow the
established procedures to check out when leaving the tower
for lunch while on duty, " the "OSB Supervisor is
not enforcing the established practice." Westerman Ex.
40 (3/11/14 Step III Grievance Letter) at 4; see also
id. at 5 ("[T]here seems to be a practice that the
WSOs are not all checking-out or checking-in and the
supervisors are not performing their job in
following-up."). Accordingly, "the discipline of
three (3) days suspension is reduced to a written
reprimand." Id. at 5-6. With respect to the
early tower closures on July 10 and 13, 2013, the ten-day
suspension for failure to check out was reduced to five days.
Id. at 6. As for falsifying logs and timesheets, the
Step III decision concludes that, although Ragasa's time
records show that he was working when the Anahola tower was
closed, his supervisor signed the timesheet, and KFD failed
to show that he deliberately intended to deceive anyone.
See id. at 6-7. Ragasa's ten-day suspension for
this conduct was reduced to four days. Id. at 7.
result of Ragasa's consolidated arbitration hearing in
March 2015, and as determined in the August 7, 2015 Decision,
the September 9, 2013 NDAs were overturned. The Arbitrator
concluded that the four disciplinary actions were without
"proper cause" because KFD did not "apply
discipline evenhandedly" in this instance, where
"other WSOs did not check out and there was no
discipline taken against those WSOs." Westerman Ex. 41
(8/7/15 Arbitration Decision) at 53. With respect to the July
10 and 13, 2013 incidents, the Arbitrator concluded that
Vierra's investigation was not conducted fully and fairly
because it did not uncover the relationship between Elizabeth
Gonzalez and Hunter, and because Ragasa was not provided with
unredacted copies of the complaints received from the public
regarding the early closures. Id. at 58-62. The
written reprimand for the July 9, 2013 lunch absence, and the
five-day and four-day suspensions for the July 10 and 13,
2013 incidents, were rescinded and expunged from Ragasa's
record. Id. at 66.
filed his original complaint on July 7, 2014, and his First
Amended Complaint on October 2, 2015. According to Ragasa,
shortly after his October 29, 2012 "protected acts,
" Defendants retaliated against him through a
"campaign of retaliatory harassment" that violated
his First Amendment rights and that included:
bombarding [Ragasa] with a slew of false accusations of
misconduct dating back over two years prior; knowingly
instituting disciplinary proceedings based upon such false
accusations; placing [Ragasa] on leave without pay while they
purportedly investigated the charges that [Ragasa] engaged in
misconduct years earlier; disparate treatment with respect to
application of Kauai County rules and discipline of [Ragasa];
and attempting to alienate [Ragasa] from his co-workers.
Â¶ 14. Ragasa contends that all Defendants were aware of his
reporting of illegal and/or improper conduct by KFD
employees. Complaint Â¶ 13. He alleges that Defendants
conspired with one another to retaliate against him for