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Pantastico v. Department of Education

United States District Court, D. Hawaii

July 24, 2019

CHARDONNAY PANTASTICO, Plaintiff,
v.
DEPARTMENT OF EDUCATION, State of Hawai‘i; et al., Defendants.

          ORDER GRANTING STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, GRANTING IN PART AND DENYING IN PART DEFENDANT NAGAMINE'S MOTION FOR JUDGMENT ON THE PLEADINGS, AND GRANTING DEFENDANT HERMOSURA'S MOTION FOR JUDGMENT ON THE PLEADINGS

          JILL A. OTAKE UNITED STATES DISTRICT JUDGE.

         This case concerns the alleged sexual harassment of Plaintiff by her softball coach at James P. Campbell High School (“Campbell”) and the school's alleged failure to prevent it. Plaintiff also asserts that Campbell's female athletic facilities were not equal to the male athletic facilities in violation of Title IX. Plaintiff brings her claims against two defendants in their individual capacities, Kevin Nagamine and Michael Hermosura, (the “Individual Defendants”); the State of Hawai‘i Department of Education; and certain individuals in their official capacities (collectively the “State Defendants”).[1] Before the Court are Nagamine's Motion for Judgment on the Pleadings, Hermosura's Motion for Judgment on the Pleadings, and the State Defendants' Motion for Summary Judgment. ECF Nos. 39, 43, 44.

         For the reasons set forth below, the Court GRANTS the State Defendants' Motion for Summary Judgment, GRANTS IN PART AND DENIES IN PART Defendant Nagamine's Motion for Judgment on the Pleadings, and GRANTS Defendant Hermosura's Motion for Judgment on the Pleadings.

         I. BACKGROUND

         A. Facts

         The following facts are undisputed. Plaintiff entered Campbell in 2012 and graduated in 2016. ECF No. 1 ¶¶ 38, 39. She was a standout softball player at Campbell, playing for both the junior varsity and varsity teams her freshman year and the varsity team until she graduated. Id. ¶¶ 41, 42, 45; ECF No. 52-2 ¶ 17. Defendant Kevin Nagamine was the head coach of the junior varsity team and was an assistant coach of the varsity team. ECF No. 1 ¶ 45. Defendant Hermosura was the head varsity softball coach. ECF No. 52-3 ¶¶ 12, 14.

         The Complaint alleges that during her time at Campbell, Nagamine gave Plaintiff special attention by buying her gifts and snacks, giving her rides to practice, and befriending her. ECF No. 1 ¶¶ 47-57. Nagamine engaged in conversations with her about her menstrual cycles and birth control methods and his own deteriorating marital sex life. Id. ¶¶ 54, 56. Then, when Plaintiff turned eighteen years old but was still a student at Campbell, the two engaged in a sexual relationship. ECF No. 1 ¶ 59. Defendant Nagamine graduated from high school roughly twenty years before Plaintiff. See ECF No. 58 at 4.

         B. Plaintiff's Declarations

         In opposition to the State Defendants' Motion for Summary Judgment, Plaintiff submitted her own declaration and a declaration of one of her teammates at Campbell, Kyra Hoohuli. In her declaration, Plaintiff alleges that Nagamine often showed her and other teammates photos of naked women on his phone, complained about his relationship with his wife, and asked Plaintiff about who she was dating and suggested she date certain people. ECF No. 52-2 ¶¶ 16, 19, 20, 22, 23, 29, 30, 31. Hoohuli's declaration states that Nagamine showed the softball players pictures of porn stars and asked them which one they would rather have sex with; all of the softball coaches constantly made sexual jokes and openly discussed which former softball players they would most like to have sex with; and coach Hermosura told the players they were getting fat and that they needed to lose weight or they wouldn't “get any guys.” ECF No. 52-3 ¶¶ 25-30.

         According to Plaintiff's declaration, Nagamine's harassment of Plaintiff increased significantly during her senior year, when Nagamine began to openly tell Plaintiff that he could “treat her better” than the person she was dating and that he would “show her how it was supposed to be done.” Id. ¶ 32. For Plaintiff's eighteenth birthday in February of 2016, Nagamine allegedly gave her a gift bag of sports bras, athletic wear, snacks, and balloons. Id. ¶ 35. Shortly after that, the softball team traveled to Maui for a tournament. Id. ¶ 36. One night during the trip, Plaintiff and other female players were in the coaches' hotel room when Nagamine allegedly offered her a sip of alcohol and told her that if she was not comfortable sleeping there, she could sleep in his room with his daughter. Id. ¶¶ 38-39. When she said she was fine, he insisted and said that he would carry her to his room if he had to. Id. Plaintiff's declaration does not indicate what else, if anything, happened that night. After the trip, Nagamine began sending Plaintiff approximately ten to fifteen text messages a day, explicitly stating he wanted to be with her. Id. ¶ 41. He sent Plaintiff messages such as “I want to be with you, ” and “you're all I think about.” Id.

         Soon after the trip, Nagamine picked up Plaintiff for practice but instead drove her to a nearby shopping center. He then told her that he planned to leave his wife for her. Id. ¶ 42. Plaintiff told him that was not a good idea, but she also felt uncomfortable disagreeing with him and did not want to do anything to upset him because he was her coach. Plaintiff still had to play her senior year under him, which she believed was critical to her college softball recruitment. Id. ¶¶ 43-44. Nagamine made Plaintiff promise not to tell anyone about their potential relationship, and then forced Plaintiff to kiss him before taking her to practice. Id. ¶ 46.

         After that, Nagamine and Plaintiff engaged in a sexual relationship that Plaintiff felt pressured into continuing. Id. ¶¶ 43, 44, 67. While Plaintiff was still a senior in high school, Nagamine and Plaintiff had sex in the back of his truck before practices, and sometimes during school hours. Id. ¶¶ 50-52. After graduating from Campbell, Plaintiff began playing softball at the University of Hawai‘i. ECF No. 52-2 ¶¶ 58, 71. Plaintiff and Nagamine continued their sexual relationship during Plaintiff's freshman year in college. ECF No. 52-2 ¶¶ 58-60. Then, when Nagamine's wife discovered the relationship in the fall of 2016, she informed Plaintiff's parents that Plaintiff and Nagamine were having sex. When Plaintiffs father found out, he brutally assaulted her. Id. ¶¶ 64-67. After the assault Plaintiff began suffering from depression and attempted suicide. Id. ¶¶ 68- 70. She no longer enjoys softball as much as she used to and remains emotionally distraught. Id. ¶¶ 71-74.

         Before this lawsuit, Plaintiff had not informed the school about the inappropriate comments Nagamine made or the nude photos he showed the players. Nor did Plaintiff inform the school about Nagamine's pursuit of Plaintiff or their sexual relationship.[2] Plaintiff did, however, inform one of the assistant coaches about her sexual relationship with Nagamine: toward the end of her senior year, Plaintiff and Nagamine were having sex at his house when his wife came home, and Plaintiff ran from the house. Id. ¶¶ 52-54. She called assistant coach Ryan Palipti for a ride home and told him what happened. Id. ¶¶ 52-54.

         Plaintiffs Complaint also alleges that the State Defendants were aware that Nagamine had previously had a sexual relationship with an underaged softball player at Campbell while he was a coach, but still re-hired him back to the softball program. ECF No. 1 ¶¶ 67-68, 74; ECF No. 51 6. Hoohuli states in her declaration that “it was well known that Coach Kevin [Nagamine] was let go from the Campbell girls' softball program [in or around 1997] because he was fooling around with an underage softball player and student at Campbell High.” ECF No. 52-3 17. It is undisputed that: (1) at the time, Nagamine was a recent graduate of Campbell; (2) Nagamine married this player; and (3) Nagamine and this player are still married. ECF No. 1 ¶¶ 61-65.

         C. Procedural History

         Plaintiff filed her Complaint against Nagamine, Hermosura, and the State Defendants on February 16, 2018. ECF No. 1. She asserts the following claims against all Defendants: Violation of 42 U.S.C. § 1983 (Count 1); Violations of Title IX for both sexual harassment and unequal athletic treatment (Count 2); Negligence (Count 3); Negligent Hiring, Training and Supervision (Count 4); Battery (Count 5); Negligent Infliction of Emotional Distress (Count 6); Intentional Infliction of Emotional Distress (Count 7); Punitive Damages (Count 8).

         II. STATE DEFENDANTS' MOTION FOR SUMMARY JUDGMENT

         The State Defendants move for summary judgment on all Plaintiffs' claims. For the reasons set forth below, the Court GRANTS the State Defendants' Motion for Summary Judgment on Plaintiff's federal claims (Counts 1 and 2) and DISMISSES Plaintiff's state law claims (Counts 3-8) WITHOUT PREJUDICE for lack of jurisdiction.

         A. Standard of Review

          Summary judgment is proper when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a). Federal Rule of Civil Procedure 56(a) mandates summary judgment “against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); see also Broussard v. Univ. of Cal. at Berkeley, 192 F.3d 1252, 1258 (9th Cir. 1999).

         “A party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and of identifying those portions of the pleadings and discovery responses that demonstrate the absence of a genuine issue of material fact.” Soremekun v. Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007) (citing Celotex, 477 U.S. at 323). “When the moving party has carried its burden under Rule 56[(a)], its opponent must do more than simply show that there is some metaphysical doubt as to the material facts [and] . . . come forward with specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio, 475 U.S. 574, 586-87 (1986) (internal quotation marks and citations omitted). “[A] party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his [or her] pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal quotation marks omitted).

         “An issue is ‘genuine' only if there is a sufficient evidentiary basis on which a reasonable fact finder could find for the nonmoving party, and a dispute is ‘material' only if it could affect the outcome of the suit under the governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing Anderson, 477 U.S. at 248). When considering the evidence on a motion for summary judgment, the Court must draw all reasonable inferences on behalf of the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at 587; see also Posey v. Lake Pend Oreille Sch. Dist. No. 84, 546 F.3d 1121, 1126 (9th Cir. 2008) (stating that “the evidence of [the nonmoving party] is to be believed, and all justifiable inferences are to be drawn in his [or her] favor”).

         B. Analysis

         i. Constitutional Violation under 42 U.S.C. § 1983 (Count 1)

         Plaintiff initially brought a claim against the State Defendants under 42 U.S.C. § 1983. ECF No. 1 at 17. But in her Opposition, Plaintiff expressly abandoned that claim against the State Defendants. ECF No. 52-1 at 13. Thus, the State Defendants' Motion for Summary Judgment on the § 1983 claim (Count 1) is GRANTED.

         ii. Plaintiff's Title IX Sexual Harassment Claim (Count 2)

         Plaintiff alleges that the State Defendants are liable for Nagamine's sexual harassment of her under Title IX. The State Defendants move for summary judgment on the grounds that they did not have actual knowledge of the harassment and did not act deliberately indifferent to Plaintiff's harassment. See Gebser v. Lago Vista Independent Sch. Dist., 524 U.S. 274 (1998).

         In Gebser, the Supreme Court addressed the question of “when a school district may be held liable . . . for the sexual harassment of a student by one of the district's teachers.” 524 U.S. at 277. There, a high school teacher made sexually suggestive comments to his students, and then engaged in a sexual relationship with an underaged student in his class. Id. at 278. The Court held that, in order to establish damages against a school district for a teacher's sexual harassment or abuse of a student under Title IX, a plaintiff must show that “an official who at a minimum ha[d] authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf ha[d] actual knowledge of discrimination” and responded with “deliberate indifference.”[3] Id. at 290. Critically, the school district must have had actual knowledge of the harassment; evidence that a reasonable official should have known is insufficient to impose liability on the school district. See Oden v. N. Marianas Coll., 440 F.3d 1085, 1089 (9th Cir. 2006); Simpson v. Univ. of Colo. Boulder, 500 F.3d 1170, 1175 (10th Cir. 2007).

         Courts have also held that a school district may be liable where there is actual knowledge of a teacher's prior sexual harassment but was deliberately indifferent to it, resulting in the plaintiff's harm. See, e.g., Doe v. Sch. Bd. of Broward Cty., Fla., 604 F.3d 1248, 1257-59 (11th Cir. 2010). Under this theory of liability, actual knowledge of prior similar abuses which put the school on notice that the teacher was at a “substantial risk” of abusing other students is sufficient. Escue v. N. OK Coll., 450 F.3d 1146, 1154 (10th Cir. 2006); Broward, 604 F.3d at 1259; see also Thomas v. Bd. of Trs. of the Neb. State Colls., 667 Fed.Appx. 560, 562 (8th Cir. 2016). But see Baynard v. Malone, 268 F.3d 228, 237- 38 (4th Cir. 2001) (holding that district's liability arises only on actual knowledge “of the discriminatory conduct in question”).

         In opposition, Plaintiff does not offer any evidence that the State Defendants had actual knowledge of Nagamine's alleged sexual harassment of Plaintiff. In Plaintiff's Concise Statement of Facts, the only person alleged to have had actual knowledge of Nagamine's sexual relationship with Plaintiff is Ryan Palipti, one of the softball assistant coaches. See ECF No. 51 ¶ 15. But there is no indication that Palipti, as an assistant coach, had the “authority to address the alleged discrimination and to institute corrective measures on the recipient's behalf.” Gebser, 524 U.S. at 290; see also DeCecco v. Univ. of S.C., 918 F.Supp.2d 471, 492 (D.S.C. 2013) (finding that a head coach did not have sufficient authority over assistant coach harasser to warrant the university's liability, because the assistant coach reported to the administration not to the head coach); Baynard v. Malone, 268 F.3d 228 (4th Cir. 2001) (“It appears that the person who receives notice of the alleged wrongdoing must have the power to fire or impose discipline.”). Thus, the State Defendants cannot be liable based on Palipti's actual knowledge of Plaintiff's relationship with Nagamine, and Plaintiff does not argue otherwise.

         Instead, Plaintiff's theory rests on the allegation that the State Defendants had actual knowledge that Nagamine had a prior sexual relationship with an underaged Campbell softball player while he was a coach, and yet were deliberately indifferent by re-hiring him. See ECF No. 52-1 at 7-9. But Plaintiff has also failed to offer any evidence that the State Defendants had actual knowledge of Nagamine's alleged prior sexual relationship with a student.

         In Plaintiff's Concise Statement of Facts, Plaintiff alleges that the State Defendants terminated Nagamine for a prior sexual relationship with a student. ECF No. 51 ¶¶ 2, 6, 7. The evidentiary support for this comes from the allegations in the Complaint-which are insufficient to defeat a motion for summary judgment, Anderson, 477 U.S. at 248-and from Hoohuli's declaration. Id. But Hoohuli's declaration does not establish a genuine issue of fact about whether the State Defendants had actual knowledge of Nagamine's alleged prior sexual relationship. Hoohuli states:

[I]t was well known that [Nagamine] was let go from the Campbell girls' softball program because he was fooling around with an underage softball player and student at Campbell High. He ended up getting her pregnant. The softball girl that he got pregnant is his current wife[.] . . . It was also well known that [Nagamine] left the Campbell High School softball coaching staff twice. The first time was on or around 1997, when [another coach] found out that [Nagamine] got [his current wife] pregnant while she was a player and student on the Campbell team.

ECF No. 52-3 ¶¶ 17, 18, 21, 22.

         While the Court is aware of the need to draw all reasonable inferences in favor of Plaintiff here, alleging that Nagamine's prior relationship was “well known” is not evidence that someone with sufficient authority actually knew about it. Constructive knowledge-that is, what the State Defendants should have known-is insufficient to impose liability on the State. See Oden, 440 F.3d at 1089. Further, there is nothing in Hoohuli's declaration establishing that she has personal knowledge of what the State Defendants knew about Nagamine's alleged prior sexual relationship. See Fed. R. Civ. P. 56(c)(4) (requiring declaration “be made on personal knowledge” and setting forth facts “that would be admissible in evidence”); see also Block v. City of L.A., 253 F.3d 410, 419 (9th Cir. 2001) (abuse of discretion to rely on declaration not made on personal knowledge). Indeed, at the time of Nagamine's alleged prior sexual relationship with a student in 1997, Hoohuli was not even born yet. See ECF No. 52-3 ¶ 6.

         Plaintiff has not established a genuine dispute of fact regarding whether the State Defendants knew of Nagamine's alleged prior sexual relationship with a student and then re-hired him despite this knowledge. ECF No. 51 ¶¶ 2, 6, 7. Despite ample time to conduct discovery, [4] Plaintiff continues to rely on bare allegations and innuendo, which are insufficient to defeat a motion for summary judgment. See Githere v. Consolidated Amusement Corp. Inc., 258 Fed. App'x. 122, 124 (9th Cir. 2007). Thus, because Plaintiff has failed to present any evidence that the State Defendants had actual knowledge of any of ...


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