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Begley v. County of Kauai

United States District Court, D. Hawaii

April 11, 2019

MARK N. BEGLEY, Plaintiff,



         On June 20, 2018, Defendant Darryl Perry (“Perry”), in his individual capacity, filed his Motion for Summary Judgment (“Perry Motion”). [Dkt. no. 311.] On June 27, 2018, Defendants County of Kauai (“the County”); Kauai Police Department (“KPD”); Perry, in his official capacity; and Michael Contrades (“Contrades”), in his official capacity (collectively, “County Defendants”), filed a substantive joinder in the Perry Motion (“County Joinder”).[1] [Dkt. no. 323.] The Court finds these matters suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii (“Local Rules”). On January 29, 2019, this Court issued an entering order informing the parties of its rulings on the Perry Motion and the County Joinder (“1/29/19 EO Ruling”). [Dkt. no. 451.]

         The parties were subsequently granted leave to file supplemental memoranda. [EO, filed 2/7/19 (dkt. no. 468).] The County Defendants filed their supplemental memorandum (“County Defendants' Supplement”) on February 14, 2019. [Dkt. no. 474.] On February 19, 2019, Perry, in his individual capacity, filed a joinder of simple agreement in the County Defendants' Supplement, and, on February 20, 2019, Contrades, in his individual capacity, filed his joinders of simple agreement (collectively “Supplement Joinders”). [Dkt. nos. 479, 481.] Plaintiff filed his response to the County Defendants' Supplement and the Supplement Joinders (“Plaintiff's Supplement”) on February 21, 2019. [Dkt. no. 487.] On March 14, 2019, this Court issued an entering order informing the parties of its rulings on the issues addressed in the supplements (“3/14/19 EO Ruling”). [Dkt. no. 525.] The instant Order supersedes the 1/29/18 EO Ruling and the 3/14/19 EO Ruling. For the reasons set forth below, the Perry Motion is denied and the County Defendants' Joinder is granted in part and denied in part. Further, in light of Begley v. County of Kaua`i, et al., NO. CAAP-16-0000192, 2018 WL 6259318 (Hawai`i Ct. App. Nov. 30, 2018) (“ICA Opinion”), the portions of Plaintiff's remaining state law claims based on acts related to the County's Return to Work Program (“RTWP”) are stayed.


         Plaintiff worked for KPD from 1989 to 1994, and then from March 1996 to the present. In January 2011, Plaintiff, who was a Deputy Chief at the time, became the Assistant Chief of the Administrative and Technical Bureau (“ATB”). [Pltf.'s counterstatement of facts in supp. of Pltf.'s opp. to Perry Motion (“Pltf. Perry CSOF”), filed 10/29/18 (dkt. no. 389), Aff. of Mark N. Begley (“Pltf. Perry Aff.”) at ¶ 2.] Plaintiff has been on stress leave, receiving workers' compensation benefits, since March 2012. [Id. at ¶ 14.]

         I. Officer Abbatiello's Incident with Asher and Plaintiff's Reports

         Asher states that, sometime in January 2011, KPD Officer Darla Abbatiello expressed to him that she was interested in transferring to the vice section, but Asher points out that, pursuant to KPD policy, such requests had to be made in writing. The vice section is part of the Investigative Services Bureau (“ISB”), which Asher oversees. [Concise statement of facts in supp. of Asher Motion (“Asher CSOF”), filed 6/20/18 (dkt. No. 313), Decl. of Roy Asher (“Asher Decl.”) at ¶¶ 2-3.] Asher therefore “made an ‘x' with the index fingers of both hands and said, ‘No, no, no.'” [Id. at ¶ 3.] At some point during January 2011, Plaintiff learned about this “inappropriate gesture” by Asher. [Pltf. Perry Aff. at ¶ 10.] Plaintiff states the incident occurred on January 13, 2011. [Id.]

         Plaintiff spoke with Asher and confirmed that Asher “made the gesture and that he did not want Officer Abbatiello in his Bureau because of the prior complaint she had made against the County of Kauai.” [Id.] On January 24, 2011, Plaintiff verbally informed Perry about the incident, and Perry said “Asher's behavior could get KPD sued for ‘big bucks' and he said he would take care of it.” [Id. at ¶ 11.]

         On August 22, 2011, Plaintiff had a meeting with Officer Abbatiello, and they discussed the incident with Asher. Id. at ¶ 5 & Exh. Q (Pltf.'s notes of meeting); see also Perry's concise statement of facts in supp. of Perry Motion (“Perry CSOF”), filed 6/20/18 (dkt. no. 310), Decl. of Darryl Perry (“Perry Decl.”) at ¶ 4 (describing the timeline of the investigation and noting the date Plaintiff received Officer Abbatiello's complaint), Exh. 1 (email dated 1/26/12 to Plaintiff from Perry, setting forth timeline (“Timeline Email”)). Plaintiff's notes about his meeting with Officer Abbatiello are consistent with Asher's description of the incident. See Pltf. Perry Aff., Exh. Q; Asher Decl. at ¶ 3. On October 3, 2011 Plaintiff completed a report to Perry regarding Officer Abbatiello's incident with Asher. [Perry Decl., Exh. 1.] Officer Abbatiello submitted a County Policy Against Discrimination and Harassment Complaint Form, dated October 18, 2011, regarding the incident with Asher and two other incidents. [Suppl. Decl. of Clare E. Connors (“Suppl. Connors Decl.”), filed 11/13/18 (dkt. no. 416), Exh. EE.[2] Officer Abbatiello's form and Plaintiff's oral and written reports about the incident will be referred to collectively as the “Abbatiello Complaint.”

         On October 10, 2011, Perry emailed Plaintiff and instructed him to hire an outside investigator to handle the Abbatiello Complaint. Plaintiff responded: “Ok, we will work on it.” [Perry Decl. at ¶ 5; Suppl. decl. of Greg H. Takase re: Perry Motion (“Suppl. Takase Decl.”), filed 7/2/18 (dkt. no. 326), Exh. 2 (email string between Perry and Plaintiff).[3] The Timeline Email states that, inter alia, on January 23, 2012, Perry “inquired with Captain Henry Barriga on the status of the investigator; pending, informed that Assistant Chief Begley is working on it” and, on January 26, 2012, Perry made an inquiry with Plaintiff and was informed that the “status was still pending.” [Perry Decl., Exh. 1.] Perry states that Plaintiff's lack of response to the Timeline Email led Perry to believe “Plaintiff was still in the process of retaining an outside investigator.” [Perry Decl. at ¶ 4.]

         However, Plaintiff admits that, on November 15, 2011, he took steps to have G. Todd Withy, Esq., retained as the outside investigator to handle the Abbatiello Complaint. [Perry CSOF at ¶ 5; Pltf. Perry CSOF at ¶ 5 (stating Perry's ¶ 5 is admitted).] Mr. Withy was retained on December 29, 2011 under a purchase order, and a retainer was paid on January 23, 2012. [Perry Decl. at ¶ 4.]

         Plaintiff asserts the adverse actions taken against him for his involvement with the Abbatiello Complaint included Plaintiff's “removal from Defendant Perry's calendar and his removal on December 16, 2011, from the position of Acting Deputy Chief.” [Mem. in opp. to Perry Motion (“Perry Opp.”), filed 10/29/18 (dkt. no. 387), at 14 (some citations omitted) (citing Hosoda Perry Decl., Exh. X (excerpts of trans. of 10/12/18 Asher depo.), Depo. Exh. 2 (email dated 2/15/11 to Plaintiff regarding the removal of Perry's calendar from Plaintiff's inbox)).]

         Plaintiff wrote a memorandum, dated December 29, 2011, to Deputy County Attorney Marc Guyot regarding the Abbatiello Complaint and how Perry was handling the complaint (“12/29/11 Guyot Memo”). [Pltf. Perry Aff., Exh. U.]

         On January 25, 2012, Officer Abbatiello submitted a complaint the Kauai Police Commission (“Commission”) primarily addressing Assistant Chief Alejandre Quibilan's (“AC Quibilan”) hostile conduct toward her, but also noting that she “lost trust in” Perry because of his handling of her 2011 complaint about Asher (“Abbatiello Commission Complaint”). [Suppl. Connors Decl., Exh. GG (Abbatiello Commission Complaint) at 5.]

         On January 30, 2012, Perry sent an email to the Commission members that: noted Asher and AC Quibilan were placed on administrative leave pending the outcome of Officer Abbatiello's complaints; stated the County Mayor put Perry on notice that morning that the investigation was looking into Perry's involvement with the complaint against AC Quibilan; requested that the Commission approve Perry's request to be placed on administrative leave with pay; and stated Contrades would be the Acting Chief and Plaintiff would be the Acting Deputy Chief during Perry's leave. [Perry Decl. at ¶ 7 & Exh. 5.] Perry asked to be placed on administrative leave “to protect the integrity of the investigation and not to interfere with” it. [Perry Decl. at ¶ 7.]

         On February 1, 2012, Contrades sent an email to all of KPD stating that he had been appointed Acting Chief and Plaintiff had been appointed Acting Deputy Chief. However, Contrades stated, while he was in Virginia for training, Plaintiff would be Acting Chief. [Perry CSOF at ¶ 7; Pltf. Perry CSOF at ¶ 7 (stating Perry's ¶ 7 is admitted).] The email also stated Contrades would be returning to the office on March 19, 2012. [Perry CSOF, Decl. of Greg H. Takase (“Takase Decl.”), Exh. 6.]

         II. Alleged Retaliation Against Plaintiff Plaintiff

         contends the retaliation against him began soon after he verbally informed Perry on January 24, 2011 of Asher's “inappropriate gesture” to Officer Abbatiello. The alleged retaliation included the following actions and incidents relevant to the Perry Motion and the County Joinder.

         A. 2/22/12 Incident

         On February 22, 2012, Contrades sent Plaintiff an email informing him that Perry was returning to work and instructing Plaintiff to ensure that Perry's weapon, badge, and identification card were returned to Perry. [Perry CSOF at ¶ 8; Pltf. Perry CSOF at ¶ 8 (stating Perry's ¶ 8 is admitted in part, but not identifying what portions are disputed).[4] The incident which occurred after Plaintiff received that email (“2/22/12 Incident”) is described in a KPD Notice of Disciplinary Action dated May 9, 2012 (“NDA-12-06”). [Perry Decl., Exh. 8.]

         NDA-12-06 states:

SYNOPSIS: On February 22, 2012, Wednesday, at 0815 hrs. while at the Emergency Operations Center (aka Civil Defense), in the presence of Deputy County Attorney Julian Kollar, Captain Henry Berriga, Police Commission Chair Emle Kanekoa, and Police Commissioner Charlie Iona, you were insubordinate and disobeyed three (3) direct orders by Chief of Police Darryl Perry to reissue his police equipment and to return the keys to his office. Further, you yelled out disparaging remarks toward Chief Perry, “I know you like terminate me; I know your lies.” Your behavior and inappropriate actions were contrary to and in direct violation of departmental directives.


         Plaintiff asserts that, prior to Perry's return to work, Perry and Contrades discussed Perry's return with each other, as well as the Mayor's office, on February 21, 2012, but they did not inform Plaintiff about the discussions, even though Plaintiff was Acting Chief at the time. See Hosoda Perry Decl., Exh. W (excerpts of rough trans. of 10/23/18 Contrades depo.) at 115:4-19, 117:14-119:9. Plaintiff did not return Perry's equipment on February 22, 2012 because of prior orders from the Mayor's office. [Pltf. Perry Aff. at ¶ 13.] Plaintiff argues Perry and Contrades orchestrated the situation, knowing that Plaintiff would follow the Mayor's orders, and that Plaintiff's failure to return Perry's equipment would be deemed insubordinate.

         B. Internal Investigations

         Perry submits evidence of the following internal investigations that were opened regarding Plaintiff:

-an investigation of a complaint by Contrades accusing Plaintiff of theft and padding Plaintiff's overtime for over a year (Administrative Investigation No. KPD-IA-12-04); [Perry Decl., Exh. 10 (letter dated 6/4/12 to Plaintiff from Sergeant Elliot Ke);]
-an investigation stemming from a May 22, 2012 memorandum by Asher regarding a complaint by an unidentified person who alleged Plaintiff disclosed “confidential and highly sensitive police information” to another unidentified person (Administrative Investigation No. KPD-IA-12-09); [id., Exh. 11 (letter dated 6/4/12 to Plaintiff from Sergeant Ke);]
-Perry asked Dwight Takamine, of the State of Hawai`i (“State”) Department of Labor and Industrial Relations (“DLIR”), Disability Compensation Division, to investigate Plaintiff's claim for medical stress leave because: Plaintiff did not have a covered injury because he sought stress leave in order to avoid the consequences of his insubordination in the 2/22/12 Incident; and Plaintiff violated the workers' compensation statutes by attending meetings on behalf of the County and KPD from June 12 to October 11, 2012;[5] [id., Exh. 12 (letter dated 10/23/12);]
-Perry wrote to the County's Managing Director, Gary Heu, arguing that Plaintiff's workers' compensation claim should be invalidated, in light of the traveling Plaintiff did for the E911 Board meetings; [Perry Decl. at ¶ 10; Suppl. Takase Decl., Exh. 13 (letter dated 12/31/12);]
-Perry sent an email to Deputy County Attorney Guyot informing him about Perry's concerns that Plaintiff's workers' compensation claim may be fraudulent; [Perry Decl. at ¶ 11; Suppl. Takase Decl., Exh. 14 (letter dated 1/8/13);]
-Contrades issued a Notice of Disciplinary Action (NDA-13-03), dated March 19, 2013, alleging Plaintiff violated KPD Standards of Conduct by being untruthful to Perry about the hiring of an outside investigator for Officer Abbatiello's complaint; [Perry Decl., Exh. 16;]
-an internal investigation regarding an incident in which Plaintiff allegedly was aggressive and hostile toward Tommy Takeshita at an E911 Board meeting; [Perry Decl. at ¶ 12; Suppl. Takase Decl., Exh. 17 (print out of ADM2013-0170, KPD-IA-13-13 report, received 5/20/13);[6]
-an investigation of a grievance filed by the Hawaii Government Employees Association alleging Plaintiff improperly denied personnel in the KPD Records Section payment for meals during overtime work (Administrative Investigation No. KPD-IA-13-09);[7] [Perry Decl., Exh. 15 (letter dated 6/4/13 to Plaintiff from Lieutenant Paul Applegate);]
-Contrades prepared a Notice of Disciplinary Action, dated June 5, 2013 (NDA-12-08), alleging Plaintiff failed to submit weekly reports to Contrades while Contrades was Acting Chief and Plaintiff was Acting Deputy Chief; [id., Exh. 18;]
-Contrades prepared a Notice of Disciplinary Action, also dated June 5 (NDA-12-09), alleging Plaintiff failed to submit a timely report of the KPD Administrative Review Board's (“ARB”) November 29, 2011 meeting regarding disciplinary cases involving KPD; [id., Exh. 19;]
-Contrades prepared a Notice of Disciplinary Action, also dated June 5 (NDA-12-10), alleging Plaintiff failed to notify Contrades of the bomb threat that the police dispatch received on March 7, 2012; [id., Exh. 20;]
-Contrades prepared a Notice of Disciplinary Action, also dated June 5 (NDA-13-05), alleging Plaintiff provided false information and revealed other sensitive and confidential information about potential KPD recruits during his interview with Mr. Withy; [id., Exh. 21;] and -on October 13, 2013, Officer Abbatiello submitted a memorandum to Sergeant Ke claiming that, when a patrol officer pulled him over, Plaintiff “‘badged' the officer, ” [Perry CSOF at ¶ 26; Pltf. Perry CSOF at ¶ 26 (admitting Perry's ¶ 26 in part but not identifying what part is disputed)].

         According to Perry, each Notice of Disciplinary Action issued to Plaintiff had an evidentiary basis, and none were issued in retaliation for Plaintiff's involvement with the Abbatiello Complaint. Perry also states none of his actions were motivated by malice or any improper purpose. Further, none of his actions were intended to inflict emotional distress or illness upon Plaintiff. [Perry Decl. at ¶¶ 16-18.]

         The parties agree that: on May 14, 2012, Contrades sent Plaintiff a letter stating the ARB would be holding a hearing on May 29, 2012 regarding NDA-12-06, which addressed the 2/22/12 Incident; and senior KPD officials later decided to postpone the ARB hearing pursuant to Deputy County Attorney Nicholas Courson's advice that the proceeding should be delayed until Plaintiff returned from stress leave. [Asher CSOF at ¶¶ 24, 27; Pltf.'s concise counterstatement of material facts in supp. of Asher opp. (“Pltf. Asher CSOF”), filed 10/30/18 (dkt. no. 394), at ¶¶ 24, 27.] On May 24, 2012, while both Perry and Contrades were off-duty, and Asher was both Acting Chief of Police and Acting Chair of the ARB, Asher signed a letter to Plaintiff notifying him about the postponement of the ARB hearing. [Asher CSOF at ¶¶ 30-31; Pltf. Asher CSOF at ¶¶ 30-31.]

         To date, the ARB has not convened to consider the Notices of Disciplinary Actions and administrative investigations pending against Plaintiff. Plaintiff has not received any discipline from the ARB. [Asher CSOF at ¶¶ 35-36; Pltf. Asher CSOF at ¶¶ 35-36.]

         On June 4, 2013, Contrades sent Plaintiff a letter informing him the ARB would be going forward with misconduct charges relating to several Notices of Disciplinary Action and internal investigations. [Asher CSOF at ¶ 16; Pltf. Asher CSOF at ¶ 16; Asher CSOF, Decl. of Craig K. Shikuma (“Shikuma Decl.”), Exh. E.] The charges were later held in abeyance, pursuant to an October 11, 2013 letter from Deputy County Attorney Courson. [Asher CSOF at ¶ 17; Pltf. Asher CSOF at ¶ 17; Shikuma Decl., Exh. F.]

         C. Attempts to Remove Plaintiff from the E911 Board

         The E911 Board “is comprised of Deputy Chiefs and Assistant Chiefs from the outer islands as well as dispatchers and members from key service providers like Verizon.” [Hosoda Perry Decl., Exh. VV (emails dated 4/8/16 from Contrades to Mauna Kea Trask) at COK 010973.] The E911 Board “control[s] funds designated for the operation of [Public Safety Answering Points].” [Id.] Plaintiff was appointed to the E911 Board and confirmed by the State Senate during the 2012 legislative session. His appointment was effective July 2, 2012. [Hosoda Perry Decl., Exh. 22 (letter dated 5/1/12 to Plaintiff from Governor Neil Abercrombie), Exh. 25 (email string forwarded to Perry and Contrades on 6/15/12 from Paul Ferreira, Deputy Police Chief, Hawai`i Police Department, regarding Plaintiff's status on the E911 Board) at COK01346.]

         On April 24, 2012, Contrades told Perry that he scheduled a meeting with the Mayor to discuss replacing Begley with Acting Assistant Chief Sherwin Perez (“AC Perez”) on the E911 Board, and Perry told Contrades that was a “[g]ood move.” [Exhs. to Pltf.'s mem. in opp. to County Defs.' Suppl. Mem. (“Pltf.'s Additional Suppl. Mem. Exhs.”), filed 3/1/19 (dkt. no. 502), Exh. 34 (emails between Contrades and Perry).[8]

         On June 15, 2012, Perry sent an email to Managing Director Heu questioning Plaintiff's travel to attend E911 Board meetings during Plaintiff's stress leave. [Id., Exh. 41 (emails between Heu and Perry).] On August 8, 2012, Perry sent Managing Director Heu another email, noting that Plaintiff was still participating in E911 Board meetings on Oahu and opining that Perry's concerns about Plaintiff's continued participation were “not being taken seriously.” [Id., Exh. 49.]

         On June 26, 2012, Perry spoke with Tony Benabese, Boards and Commissions Manager, Office of the Governor, and Perry subsequently sent a letter regarding the conversation. Perry requested that Plaintiff's participation on the E911 Board be suspended until Plaintiff returned to work after his stress leave. Perry requested that AC Perez be appointed as a temporary replacement. [Id., Exh. 30 (undated letter to Mr. Benabese from Perry).] During the efforts to have Plaintiff removed from the E911 Board, KPD kept him under surveillance when he attended board meetings. See, e.g., Pltf.'s Additional Suppl. Mem. Exhs., Exh. 49 (email dated 8/8/12 to Managing Director Heu from Perry stating AC Perez “will be submitting a report documenting his observations while at the meeting in which Begley was observed in attendance”); Suppl. Sheehan Decl., Exh. 52 (email dated 1/18/13 from Perry to Managing Director Heu, stating Perry “will be documenting [Plaintiff's] activities, as they are being reported to [Perry] with respect to the E911 Committee and Board meetings while he is medically disqualified from work and out on Worker's Compensation/Medical Leave”).

         On multiple occasions in September 2012, Perry contacted the Governor's office regarding “Work Comp Irregularities” related to Plaintiff's involvement in the E911 Board. [Id., Exh. 8 (email string between Perry and Mr. Benabese) at COK00087.] On October 1, 2012, Mr. Benabese responded: “The AG has found that Mr. Begley can still serve on the Wireless 911 Board even though he is on workman's comp.” [Id.] Perry wrote back: “Please be sure to keep your notes and any communications in this matter as there may be repercussions in the future . . . . Hopefully the [Deputy Attorney General] has the appropriate statutes or rules to support his/her opinion.” [Id. at COK00086.] Mr. Benabese clarified that receiving workers' compensation benefits did not, by itself, constitute cause to remove someone from a board. [Id.] He also stated:

Mr. Begley was appointed by to [sic] Governor per Hawaii Revised Statutes, 26-34. Before anyone else can be appointed to the Kauai Public Safety Answering Points seat, the current member (Mr. Begley) must be removed. For Governor to remove anyone from a board or commission, the Governor must show cause per HRS 26-34(d). From what the AG's know and the information that they have, there is no cause to warrant his removal and Mr. Begley has been a contributing member at the meetings.


         The attempts to remove Plaintiff from the E911 Board continued in 2016. [Hosoda Perry Decl., Exh. TT (email exchange between Deputy Chief Ferreira and Contrades regarding the replacement of Plaintiff when his term ended on 6/30/16), Exh. UU (email dated 3/21/16 from Contrades to Perry regarding modification of a draft letter to Courtney T. Tagupa, Executive Director of the E911 Board, to be signed by Perry, nominating Contrades to replace Plaintiff).] When the Mayor declined to sign a document nominating Contrades to the E911 Board and instead forwarded the document to the County Attorney for review, Contrades responded:

I am not sure what the issue is with the Mayor not signing the nomination. The E911 Board is not supporting another term for Begley and the desire of the Chief is for someone who has actual knowledge of the Public Safety Answering Point (PSAP) to represent Kauai because we have not been properly represented for the last 4 years. . . . I was the one selected. This has no bearing on his pending cases and needs to be pushed through immediately or we may lose our nomination and our voice on a board that has given us millions of dollars and sustains our 911 operations. . . .

[Id., Exh. VV (emails dated 4/8/16 from Contrades to Mauna Kea Trask, forwarding emails regarding nomination document) at COK 010973.]

         D. Challenges to Plaintiff's Workers' Compensation Claim

         Brandvold Ku, Inc. (“BKI”) is the insurance adjusting company that handled Plaintiff's workers' compensation claim, and Ele Wood was the Senior Adjuster who was assigned to the claim. [Pltf.'s Additional Suppl. Mem. Exhs., Exh. 2 (WC-1 Employer's Report of Industrial Industry, date 3/14/12).] Perry sent Ms. Wood multiple letters contesting the validity of Plaintiff's claim. [Id., Exh. 3 (letter dated 4/10/12); Hosoda Perry Decl., Exh. BB (excerpts of trans. of 2/2/17 depo. of Alfred Castillo, Jr., vol. II), Depo. Exhs. 7-12 (letters dated 6/22/12, 7/16/12, 8/10/12, 9/17/12, 10/16/12, 11/15/12).] The County Attorney's Office warned Perry that his letters to Ms. Wood were “highly inappropriate given the nature of” Plaintiff's allegations and Perry's involvement in them. [Suppl. Connors Decl., Exh. BB-5 (letter dated 6/22/12 to Perry from Deputy County Attorney Guyot) at 1.] Perry was advised “to have no further involvement in the administration of [Plaintiff's] workers' compensation claim[]” and that, “[d]oing so would not only put the County in potential harm, but possibly [Perry] in [his] individual capacity as well.” [Id. at 2.] Perry, however, sent multiple letters to Ms. Wood after this admonishment.

         Perry also sent letters to Dwight Takamine, who was with the Department of Labor and Industrial Relations (“DLIR”), Disability Compensation Division, questioning the validity of Plaintiff's workers' compensation claim. [Perry Decl., Exh. 12 (letter dated 10/23/12); Pltf.'s Additional Suppl. Mem. Exhs., Exh. 11 (letter dated 11/15/12).] Perry states he wrote to Mr. Takamine because he believed Mr. Takamine was the head of the State agency that was handling Plaintiff's workers' compensation claim and he believed (and still believes) Plaintiff's claim was fraudulent. [Perry Decl. at ¶ 9.] Deputy County Attorney Guyot informed Perry that the DLIR was unable to communicate directly with Perry on the matter. [Pltf.'s Additional Suppl. Mem. Exhs., Exh. 51 at COK 009860 (letter to Perry dated 1/3/13).] Deputy County Attorney Guyot advised Perry that the County Attorney's Office referred the matter to the Commission because “previous notices about [Perry's] similar conduct from the [DLIR] have not curtailed [Perry's] continued inappropriate involvement in on-going Workers Compensation claims.” [Id.]

         Perry also sent letters challenging the validity of Plaintiff's workers' compensation claim to Managing Director Heu and to Deputy County Attorney Guyot. [Suppl. Takase Decl., Exh. 13 (letter to Heu, dated 12/31/12), Exh. 14 (letter to Guyot, dated 1/8/13).]

         On May 26, 2014, the Mayor and the Commission Chair sent Perry a letter stating: the Equal Employment Opportunity Commission (“EEOC”) reached determinations in six complaints filed by KPD officers;[9] and “[t]he EEOC Letters of Determination include a warning regarding continued retaliation.” [Hosoda Perry Decl., Exh. NN.] The ...

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