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Ragasa v. County of Kaua'i

United States District Court, D. Hawaii

February 8, 2016

CARL A. RAGASA, Plaintiff,
v.
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.

         INTRODUCTION

         Plaintiff 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. § 1983 First Amendment retaliation claim against the individually named Defendants (Count I), as well as his Hawaii Whistleblowers Protection Act, Haw. Rev. Stat. ("HRS") § 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).

         Ragasa's motion to dismiss Hunter's Counterclaim is GRANTED as to Counts I and II and DENIED as to the remaining Counts.

         BACKGROUND

         I. Factual Background

         A. KFD Organizational Procedures

         Ragasa 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. ¶ 2.

         This 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 ¶ 2 [Dkt. No. 116].

         Complaints 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. ¶¶ 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. ¶ 5. Even Step III decisions maybe challenged via arbitration. See e.g. Westerman Ex. 41 (8/7/15 Arbitration Decision).

         B. Ragasa's 2010 Report to Hunter

         Ragasa 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. ¶ 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. at 41.

         During 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.

         On 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. ¶ 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.[1] 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. ¶ 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.

         C. 2012 Report of Employee Drug Use

         In 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.") ¶ 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. ¶¶ 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. ¶¶ 22-23; see also 7/29/15 Hunter Dep. Tr. at 52-53.

         D. October 26, 2012 Training Incident and Investigation

         On 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).

         Westerman 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.

         E. October 29, 2012 Report to Vierra, Investigation, and Discipline

         On 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.

         According 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.

         On 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 that-

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 Yee.

         Westerman Ex. 5 (11/26/12 Letter).

         Ragasa 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).

         On 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.

         Westerman 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.

         Westerman Ex. 13.

         On 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.

         Ragasa 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.

         Ragasa 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 Decision).

         F. January 24, 2013 Call to Hunter, Investigation, and Discipline

         On 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. ¶ 40.

         According to WSO Myles Emura, he had a telephone conversation with Hunter on January 24, 2013, sometime after Hunter's call with Ragasa-

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 Ragasa.

         Declaration of Myles Emura ("Emura Decl.") ¶ 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. ¶ 7.

         Hunter 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 individual.

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.

         On 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.

         Ragasa Ex. 18 (1/28/13 Zarbaugh KFD Form 103), attached to CSOF in Opposition to Hunter Motion [Dkt. No. 126].

         Westerman 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.

         Westerman Ex. 19 (1/29/13 Letter).

         Westerman 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.

         Hunter 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.

         Ragasa 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. ¶ 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.

         Westerman 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 blackmail.

         Westerman Ex. 21 (4/3/2013 NDA).

         On May 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.

         G. July 9, 10, and 13, 2013 Incidents, Investigation, and Discipline

         On July 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. ¶ 47.

         On July 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 on tape.

         Ragasa 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].

         Vierra 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.[2] 7/29/15 Hunter Dep. Tr. at. 144-45

         According to Ragasa, he did not leave Anahola tower early on either July 10 or July 13, 2013.[3] 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. ¶¶ 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. ¶ 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. ¶ 66.

         Westerman 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).

         In a 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).

         Ragasa 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 OSB policy.
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.

         Following 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.

         As a 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.

         II. Procedural Background

         Ragasa 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.

         Complaint ¶ 14. Ragasa contends that all Defendants were aware of his reporting of illegal and/or improper conduct by KFD employees. Complaint ¶ 13. He alleges that Defendants conspired with one another to retaliate against him for ...


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