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Klingman v. The County of Maui

United States District Court, D. Hawaii

November 29, 2016



          Alan C. Kay Sr. United States District Judge

         For the reasons set forth below, the Court GRANTS Defendant County of Maui, Maui Police Department's Motion to Dismiss Complaint Filed on July 20, 2016, ECF No. 8, with leave to amend.


         Plaintiff Mollie Klingman (“Plaintiff”) began working for the Maui Police Department in 1987. Compl. ¶ 11, ECF No. 1. In 2011, Plaintiff was promoted to Captain and assigned as “Support Services Bureau - Technical Services Captain.” Id. ¶ 12. While in this role, Plaintiff was assigned to be the Acting Assistant Chief/Inspector of Support Services Bureau over 25 times allowing her to become “very experienced at running the Support Services Bureau.” Id. ¶¶ 12-13.

         In February of 2013, Plaintiff “transferred to a position as Lahaina District Commander.” Id. ¶ 14. In 2013, Plaintiff also applied for the position of Police Inspector, but was not selected. Id. ¶ 15. Plaintiff was informed by the Assistant Chief of Support Services Bureau “that she should not have bothered to submit an application because the position was going to be filled by Dean Rickard (a male).” Id. ¶ 16. Dean Rickard (“Deputy Chief Rickard”) was selected for the Police Inspector position and has since been promoted to Deputy Chief of Police. Id. ¶ 17.

         On or around September 24-25, 2014, Deputy Chief Rickard informed Officer Rusty Iokia, a Maui Police Department union representative, that the next Assistant Chief would be Captain John Jakubczak (“Captain Jakubczak”). Id. ¶¶ 19-20. Captain Jakubczak “had socialized” with Chief of Police Tivoli S. Faaumu and was a classmate of Deputy Chief Rickard. Id. ¶ 21. Deputy Chief Rickard and Captain Jakubczak “lunched together nearly every day.” Id.

         On or around November 6, 2014, Plaintiff “submitted an application for a vacant Police Inspector position (also known as Assistant Chief).” Id. ¶ 22. The position was with the Support Services Bureau at which Plaintiff had previously been assigned as Acting Assistant Chief/Inspector more than 25 times. Id. Plaintiff participated in a promotion board interview for the Police Inspector/Assistant Chief position, which lasted 23 minutes. Id. ¶ 23. Police Chief Faaumu and Deputy Chief Rickard were the board members. Id. “The interview was unstructured and informal, ” and Plaintiff was “asked very limited questions” regarding the open position. Id. ¶ 24.

         The vacant Police Inspector position was given to Captain Jakubczak, “a less experienced and less qualified male” who also had “less seniority” than Plaintiff. Id. ¶ 25. Plaintiff requested a meeting with Chief Faaumu regarding the promotion process, which Deputy Chief Rickard also attended. Id. ¶ 26. At the meeting, Deputy Chief Rickard “became very confrontational” with Plaintiff. Id.


         On July 20, 2016, Plaintiff filed her Complaint against the County of Maui, Maui Police Department (“Defendant”). The Complaint raises four counts against Defendant: Count I-Title VII Sex Discrimination; Count II-Violation of the Hawaii Constitution, Article XVI; Count III-Negligent Infliction of Emotional Distress (“NIED”); and Count IV-Intentional Infliction of Emotional Distress (“IIED”). Compl. ¶¶ 28-48.

         On August 25, 2016, Defendant filed a Motion to Dismiss Complaint Filed on July 20, 2016 (“Motion to Dismiss”). ECF No. 8. On November 7, 2016, Plaintiff filed her Memorandum in Opposition to Defendant County of Maui Police Department's Motion to Dismiss Complaint Filed on July 20, 2016 (“Opposition” or “Opp.”). ECF No. 12. Defendant filed its Reply Memorandum in Support of its Motion to Dismiss Complaint Filed July 20, 2016 (“Reply”) on November 14, 2016. ECF No. 13.

         The Court held a hearing on Defendant's Motion to Dismiss on November 28, 2016.


         I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

         Pursuant to Federal Rule of Civil Procedure (“Rule”) 12(b)(1), a party may move to dismiss based on a lack of subject matter jurisdiction. “[T]he party asserting subject matter jurisdiction has the burden of proving its existence.” Robinson v. United States, 586 F.3d 683, 685 (9th Cir. 2009) (citation omitted). “Failure to exhaust administrative remedies is properly considered under a 12(b)(1) motion to dismiss where exhaustion is required by statute.” Dettling v. United States, 948 F.Supp.2d 1116, 1128 (D. Haw. 2013).

         II. Motion to Dismiss for Failure to State a Claim

         Rule 12(b)(6) authorizes the Court to dismiss a complaint that fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). Rule 12(b)(6) is read in conjunction with Rule 8(a), which requires only “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2). The Court may dismiss a complaint either because it lacks a cognizable legal theory or because it lacks sufficient factual allegations to support a cognizable legal theory. Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988).

         In resolving a Rule 12(b)(6) motion, the Court must construe the complaint in the light most favorable to the plaintiff and accept all well-pleaded factual allegations as true. Sateriale v. R.J. Reynolds Tobacco Co., 697 F.3d 777, 783 (9th Cir. 2012). The complaint “must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “The plausibility standard . . . asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of entitlement to relief.'” Id. (quoting Twombly, 550 U.S. at 557). “In considering a motion to dismiss, the court is not deciding whether a claimant will ultimately prevail but rather whether the claimant is entitled to offer evidence to support the claims asserted.” Tedder v. Deutsche Bank Nat. Trust Co., 863 F.Supp.2d 1020, 1030 (D. Haw. 2012) (citing Twombly, 550 U.S. at 563 n.8).

         The Court should grant leave to amend unless the pleading cannot be cured by new factual allegations. OSU Student All. v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).

         Under Rule 12(b)(6), review is generally limited to the contents of the complaint. Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001); Campanelli v. Bockrath, 100 F.3d 1476, 1479 (9th Cir. 1996). However, courts may ‚Äúconsider certain materials-documents attached to the complaint, documents incorporated by reference in the complaint, or matters of judicial notice-without converting the motion ...

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