Begley v. Cnty. of Kauai

MARK N. BEGLEY, Plaintiff, v. COUNTY OF KAUAI, KAUAI POLICE DEPARTMENT, DARRYL PERRY, ROYASHER, MICHAEL CONTRADES AND DOE DEFENDANTS 16-100, Defendants.

CIVIL 16-00350 LEK-KJM

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

January 4, 2018

ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION TO DISMISS PORTIONS OF PLAINTIFF'S FIRST AMENDED COMPLAINT

On May 23, 2017, Defendant Roy Asher, in his individual capacity ("Asher"), filed his Motion to Dismiss Plaintiff's First Amended Complaint Filed May 5, 2017 ("Asher Motion"). [Dkt. no. 109.] Plaintiff Mark N. Begley ("Plaintiff") filed his memorandum in opposition on September 1, 2017, and Asher filed his reply on September 11, 2017. [Dkt. nos. 173, 178.] This matter came on for hearing on September 25, 2017.¹ The AsherMotion is hereby granted in part and denied in part for the reasons set forth below. Specifically, the First Amended Complaint is dismissed and Plaintiff has until February 15, 2018 to file a second amended complaint.

BACKGROUND

I. The First Amended Complaint

This action commenced on June 27, 2016, and the First Amended Complaint was subsequently filed on May 5, 2017 ("First Amended Complaint"). [Dkt. nos. 1, 103.] Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1343(a)(4), 2201, 2202, and 42 U.S.C. § 2000e-5. [First Amended Complaint at ¶ 1.]

Plaintiff's lawsuit arises out of employment with the Kauai Police Department ("KPD"), where he is an Assistant Chief of Police. The individual defendants are likewise KPD employees and include: Defendant Darryl Perry ("Perry"), Chief of Police; Asher, Assistant Chief of Police, and Darla Abbatiello ("Abbatiello"), Police Officer.

The gravamen of Plaintiff's claims is that, after he went to Perry to discuss alleged sexual discrimination by Asheragainst Abatiello, the defendants retaliated against him in the workplace. [Id. at ¶¶ 37-38.] Counts II and IV of the First Amended Complaint are directed against Asher:

-aiding and abetting retaliation, under Chapter 368 and § 378-2(3), against all natural person defendants ("Count II");² [id. at ¶¶ 125-28;] and

-intentional infliction of emotional distress against all defendants ("IIED" and "Count IV"), [id. at ¶¶ 134-36].

Factually, Plaintiff alleges the following: that Asher retaliated against him, on August 5, 2011, by circulating false, disparaging information about Plaintiff ("8/5/11 Incident"); thaton August 25, 2011, Plaintiff reported Asher's retaliation to Perry and recommended that Perry conduct a formal investigation, but no formal investigation was done; that Plaintiff wrote a memorandum to Perry, dated October 3, 2011, which detailed Abbatiello's allegations against Asher and Perry subsequently tried to dissuade Abbatiello from pursuing a formal complaint; that when Abbatiello persisted with her formal complaint against Asher, Perry bypassed protocol and excluded Plaintiff from various meetings and duties; that Perry removed Plaintiff, on December 16, 2011, as Acting Chief of Police; that, in January and February 2012, Perry and Defendant Michael Contrades ("Contrades"), KPD Deputy Chief of Police, issued orders to exclude Plaintiff from various briefings;³ that, due to Abatiello's complaint, Perry voluntarily surrendered his gun, badge, and police credentials but, on February 22, 2012, unlawfully ordered Plaintiff to return these items ("the 2/22/12 Incident"). Plaintiff refused to do so, based on orders from the Mayor's Office. As a result, Perry gave press interviews which disparaged Plaintiff; that Solette Perry's ("Ms. Perry") filed a complaint against Plaintiff with the Police Commission regardingthe 2/22/12 Incident despite Ms. Perry not being present when the 2/22/12 Incident occurred. Ernest Kanekoa ("Kanekoa"), Police Commission Chair, is Perry's personal friend and was listed as a witness in Ms. Perry's complaint, but did not recuse himself from investigating Ms. Perry's complaint. Kanekoa requested Contrades have KPD investigate Ms. Perry's complaint against Plaintiff; that after returning to paid duty on March 12, 2012, Perry leaked Plaintiff's confidential medical information to the media; that Contrades, on April 2, 2012, ordered an investigation against Plaintiff for padding overtime; that Perry, on May 14, 2012, had disciplinary charges issued against Plaintiff based on the 2/22/12 Incident; that KPD's Administrative Review Board ("ARB") scheduled a disciplinary hearing on these charges. Asher was a member of the ARB and, on May 24, 2012, Asher sent Plaintiff a letter stating the ARB hearing was postponed ("the 5/24/12 ARB Postponement Letter"); that, on June 14, 2012, Contrades sent Plaintiff a letter stating that disciplinary proceedings against Plaintiff were ongoing, and the ARB would notify Plaintiff of the new hearing date; that Plaintiff, on November 15, 2012, filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") against the County ("11/15/12 Charge"); that, on June 4 and 5, 2013, Contrades issued four new disciplinary notices against Plaintiff; that, on June 24, 2013, Contrades issued eight new disciplinary notices against Plaintiff, witheach containing charges that were terminable offenses; that Plaintiff, on June 27, 2013, filed a third charge of discrimination with the EEOC against the County ("6/27/13 Charge"); that, on April 25, 2014, the EEOC issued a reasonable cause finding as to the 11/15/12 Charge and the 6/27/13 Charge; that, on December 12, 2014, Perry had Contrades order an internal investigation against Plaintiff for animal cruelty; and that, on April 8, 2016, a right-to-sue letter was issued to Plaintiff from the EEOC for the 11/15/12 Charge and the 6/27/13 Charge.⁴

II. The Asher Motion

Asher characterizes Plaintiff's claims against him as being limited to two discrete occurrences: the 8/5/11 Incident, and the 5/24/12 ARB Postponement Letter. [Mem. in Supp. of Asher Motion at 2-3 (citing First Amended Complaint ¶¶ 41, 72).] As to Count IV, which alleges IIED, Asher argues that it is time-barred. As to Count II, which alleges aiding and abetting retaliation, Asher argues that the 8/5/11 Incident allegation is time-barred, and that the 5/24/12 ARB Postponement Letter allegation is insufficient to state a claim.

DISCUSSION

I. Timeliness of IIED Claim

There is a two-year statute of limitations for IIED claims. DeRosa v. Ass'n of Apartment Owners of the Golf Villas, 185 F. Supp. 3d 1247, 1259-60 (D. Hawai`i 2016). The discovery rule applies to this statute of limitations. Id. at 1260 ("[U]nder the discovery rule, a cause of action accrues when the plaintiff knew or should have known of the causal connection between the defendant's action and the damage done.") (quoting United States EEOC v. NCL Am., 535 F. Supp. 2d 1149, 1169-70 (D. Hawai`i 2008)). This two-year period to file an IIED claim is not tolled while a plaintiff's HCRC complaint is pending. Id. (citing Hale v. Hawaii Publ'ns, Inc., 468 F. Supp. 2d 1210, 1232 (D. Hawai`i 2006)).

Here, the action was commenced June 27, 2016. Any incident upon which a claim for IIED is based that occurred before June 27, 2014 will be time-barred. See DeRosa, 185 F. Supp. 3d at 1259-60. As against Asher, the IIED claim (in Count IV of the Amended Complaint) is based upon two incidences - the 8/5/11 Incident, and the 5/24/12 ARB Postponement Letter - both of which occurred before June 27, 2014. Thus, unless there is a basis to toll the statute of limitations, the Court is compelled to find that the IIED claim (Count IV) is time-barred as to Asher.

Plaintiff argues that Count IV alleges a continuing tort sufficient to toll the statute of limitations. The Hawai`i Intermediate Court of Appeals ("ICA") has explained:

Generally, a continuing tort is defined as

"one inflicted over a period of time; it involves a wrongful conduct that is repeated until desisted, and each day creates a separate cause of action. A continuing tort sufficient to toll a statute of limitations is occasioned by continual unlawful acts, not by continual ill effects from an original violation, and for there to be a continuing tort there must be a continuing duty."

54 C.J.S. Limitations of Actions § 177 (1987) (footnote omitted). . . .

. . . .

This continuing-tort exception is generally recognized because

usually no single incident in a continuous chain of tortious activity can fairly or realistically be identified as the cause of significant harm, [and] it seems proper to regard the cumulative effect of the conduct as actionable. Moreover, since one should not be allowed to acquire a right to continue the tortious conduct, it follows logically that statutes of limitation should not run prior to its cessation.

Curtis v. Firth, 123 Idaho 598, 850 P.2d 749, 754 (Idaho 1993) (holding that a claim for intentional infliction of emotional distress was a continuing tort for purposes of a statute of limitations (quoting Page v. United States, 234 U.S. App. D.C. 332, 729 F.2d 818, 821-22 (D.C. Cir. App. 1984)) (quotation marks omitted).

Thus, generally, a continuing tort is a tortious act that occurs so repeatedly that it can be termed "continuous," such that one may say thatthe tortious conduct has not yet ceased. Accordingly, the statute of limitations cannot run, because the tortious conduct is ongoing. The example of the flooding of one's property, as in the instant case and as illustrated by the Restatement (Second) of Torts, is a good one.

Anderson v. State, 88 Hawai`i 241, 247-48, 965 P.2d 783, 789-90 (Ct. App. 1998) (some alterations in Anderson).

The type of conduct alleged must be examined to determine whether it is "the type of conduct that the continuing tort exception is intended to encompass," as compared to "a series of separate and distinguishable acts." See Boyd v. Univ. of Hawai`i, No. 30547, 2012 WL 503797, at *3 (Hawai`i Ct. App. Feb. 13, 2012) (declining to apply continuing tort exception to IIED and HWPA claims). Additionally, even if the injurious effects of...