Kosegarten v. Dep't of the Prosecuting Attorney

907 F.Supp.2d 1143

Marie J. KOSEGARTEN, Plaintiff,

v.The DEPARTMENT OF THE PROSECUTING ATTORNEY, et al., Defendants.

Civil No. 10–00321 LEK–KSC.

United States District Court, D. Hawai‘i.

Oct. 30, 2012.

Richard D. Gronna, Attorney at Law, Caprice R. Itagaki, Denise M. Hevicon, Michael Jay Green, Honolulu, HI, for Plaintiff.

Cheryl A. Tipton, Thomas W. Kolbe, Department of the Corporation Counsel, Wailuku, HI, for Defendants.

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT ON AIDING AND ABETTING CLAIMS

LESLIE E. KOBAYASHI, District Judge.

On July 6, 2012, Defendants the County of Maui (“the County”), Benjamin M. Acob, in his individual capacity (“Defendant Acob”), and Timothy T. Tate, in his individual capacity (“Defendant Tate”, all collectively, “Defendants”) filed their Motion for Summary Judgment on Aiding and Abetting Claims (“Motion”). [Dkt. no. 142.] Plaintiff Marie J. Kosegarten (“Plaintiff”) filed her memorandum in opposition to the Motion on September 10, 2012, and Defendants filed their reply on September 17, 2012. [Dkt. nos. 173, 175.] On September 27, 2012, this Court found the instant Motion suitable for disposition without a hearing pursuant to Rule LR7.2(d) of the Local Rules of Practice of the United States District Court for the District of Hawai'i (“Local Rules”). [Dkt. no. 187.] After careful consideration of the Motion, supporting and opposing memoranda, and the relevant legal authority, Defendants' Motion is HEREBY DENIED for the reasons set forth below.

BACKGROUND

This Court recently set forth the factual and procedural history of this case in its Order Denying Defendants' Motion for Partial Summary Judgment on the Issue of Qualified Immunity for Individual Defendants and Granting in Part and Denying in Part Defendants' Motion for Summary Judgment on Time–Barred Claims, filed August 31, 2012 (“8/31/12 Order”), [dkt. no. 172,¹] which this Court incorporates by reference.

I. Motion

In the instant Motion, Defendants first argue that Plaintiff failed to exhaust her administrative remedies as to her aiding and abetting claims. Insofar as aiding and betting is a state law claim pursuant to Haw.Rev.Stat. § 378–2(3)² and it does not arise under Title VII, Plaintiff had to file a charge with the Hawai'i Civil Rights Commission (“HCRC”) within 180 days after the last alleged act of discrimination. Plaintiff, however, only filed three charges with the Equal Employment Opportunity Commission (“EEOC”). [Mem. in Supp. of Motion at 3; Defs.' Concise Statement of Material Facts in Supp. of Motion, filed 7/6/12 (dkt. no. 143) (“Defs.' CSOF”), Decl. of Cheryl Tipton (“Tipton Decl.”), Exhs. A–C.³] Defendants emphasize that obtaining a right-to-sue letter from the HCRC is a pre-condition to bringing a civil action for violations of § 378–2. [Mem. in Supp. of Motion at 4.]

Defendants argue that Plaintiff did not allege in the Charges that Defendants Acob and Tate “aided, abetted, incited, compelled, or coerced the doing of any of the discriminatory practices forbidden by Chapter 378, Part I, or even that they attempted to do so.” [ Id. at 5.] The County is the only respondent named in the Charges and in the right-to-sue letters from the HCRC and the EEOC. [Tipton Decl., Exh. D.] Defendants argue that Plaintiff's aiding and abetting allegations against Defendants Acob and Tate are outside of the scope of the Charges, and therefore those claims are barred for failure to exhaust. [Mem. in Supp. of Motion at 5.]

Defendants acknowledge that the Ninth Circuit has stated that a layperson completing a discrimination charge should not be held to the same pleading standards applicable to the filing of a civil complaint. [ Id. at 8 (citing B.K.B. v. Maui Police Department, 276 F.3d 1091, 1103 (9th Cir.2002)).] Defendants, however, argue that this Court should hold Plaintiff to a higher standard because she is an attorney and, prior to filing the October 2008 Charge, she stated that she had retained an attorney. [ Id.; Tipton Decl., Exh. E (email string dated September 2, 2008 and August 27, 2008 between Plaintiff and Wayne Steel regarding “Retaliation Claim”).]

Defendants also point out that, in her responses to the EEOC EAS Questionnaire, which the EEOC uses to draft the formal complaint, Plaintiff identified the persons responsible as Peter Hanano, Wayne Steel, and Defendant Acob. She did not identify Defendant Tate. [Mem. in Supp. of Motion 8–9; Tipton Decl., Exh. F (EAS Questionnaire dated August 28, 2008).] The EAS Questionnaire asks the complainant to identify the bases for the claim of employment discrimination. The complainant can check race, sex, age, disability, national origin, color, religion, retaliation, pregnancy, and other. Plaintiff marked retaliation and listed “Whistleblower” after “other”. [Tipton Decl., Exh. F at 2.] Defendants argue that Plaintiff could have listed aiding and abetting under “other”, but she did not do so. [Mem. in Supp. of Motion at 9.] In addition, the narrative in the EAS Questionnaire does not mention any communications between Defendant Acob and Defendant Tate. Defendants also argue that, although the Charges list actions by Defendants Acob and Tate, the Charges do not suggest a conspiracy or plot between them, nor do the Charges mention any communications between them. Defendants argue that the Charges were insufficient to exhaust her administrative remedies as to her aiding and abetting claims. [ Id. at 9–10.] Defendants emphasize that Defendant Tate did not receive notice of any of Plaintiff's Charges. [ Id. at 10 (citing Defs.' CSOF, Decl. of Timothy T. Tate (“Tate Decl.”) at ¶ 18).] Defendants therefore argue that they are entitled to summary judgment on Plaintiff's aiding and abetting claims.⁴

Defendants next argue that Plaintiff's aiding and abetting claims are meritless. According to Defendants, the Second Amended Complaint contains eight paragraphs setting forth the actions which form the basis of Plaintiff's aiding and abetting claims (paragraphs 44, 47, 53, 58, 59, 70, 84, and 106). [Mem. in Supp. of Motion at 11–15.]

Paragraph 44 of the Second Amended Complaint alleges that Defendant Tate aided and abetted Defendant Acob ⁵ to blemish Plaintiff's personnel file and to create a hostile work environment for her by spreading rumors around the office that Plaintiff called Ms. Jura and Ms. Murakami “idiots” and “morons”. Defendants argue that, based on the undisputed facts of this case, Plaintiff cannot prevail on this allegation. [Mem. in Supp. of Motion at 12.]

Defendants point to: Defendant Acob's testimony that, at the time Plaintiff allegedly made the statement, Ms. Jura and Ms. Murakami had pending EEOC discrimination complaints against the County; [Defs.' CSOF, Decl. of Benjamin A. Acob (“Acob Decl.”) at ¶ 13;] the internal investigation into whether Plaintiff's comments constituted prohibited retaliation for their EEOC complaints; [Defs.' CSOF, Decl. of Wayne Steel ⁶ (“Steel Decl.”) at ¶ 5;] Mr. Steel's deposition testimony that information from an internal discrimination investigation is not placed in anyone's personnel file unless there is a finding, and that the investigative report is only placed in the investigative file; [Tipton Decl., Exh. H (excerpts of 3/2/12 depo. of Wayne F. Steel) at 80, 84–85;] Defendant Acob's testimony that, when Plaintiff denied making the statement, he gave her the benefit of the doubt; his testimony that Plaintiff received a raise effective July 1, 2008 and a positive performance evaluation from him on September 29, 2008; his testimony that Plaintiff's termination was not based on any actions or comments by Defendant Tate; [Acob Decl. at ¶¶ 13–15;] and Plaintiff's admission that, prior to her termination, she had never suffered a disciplinary action of any kind [Tipton Decl., Exh. G (excerpts of Pltf.'s First Suppl. Answers to the County's First Request for Answers to Interrogs.) at 2].

Defendants argue that Plaintiff's comments “were reported to management, not to others in the office, as required by the County's Policy Against Discrimination[.]” [Mem. in Supp. of Motion at 12 (citing Acob Dec. ¶ 13; Tipton Decl., Exh. M).] Defendant Acob's declaration, however, merely states that Defendant Tate reported the comments to him and that Defendant Tate's report was kept confidential. Defendant Acob does not address whether Defendant Tate told others in the office about Plaintiff's alleged comments. [Acob Decl. at ¶ 13.]

Defendants also argue that Deputy Prosecuting Attorney (“DPA”) Tracy Jones confirmed that Plaintiff referred to Ms. Jura and Ms. Murakami as “morons and idiots”. [Mem. in Supp. of Motion at 12 (citing Tipton Decl., Exh. P). ⁷]

Paragraph 47 of the Second Amended Complaint alleges Defendant Tate made his August 21, 2008 complaint, which was based upon Plaintiff's “idiots” and “morons” comment and regarding Plaintiff's negative remarks about DPA Robert Rivera, to aid and abet Defendant Acob in creating negative marks in her personnel file, leading to disciplinary action and her eventual termination. Defendants argue that, based on the same undisputed facts discussed as to paragraph 44, Plaintiff cannot prevail on this allegation. [Mem. in Supp. of Motion at 12–13.]

Paragraph 53 of the Second Amended Complaint also alleges Defendant Acob aided and abetted the County to create negative marks in Plaintiff's personnel file and to induce her to resign. Defendants argue that Plaintiff cannot prevail on her aiding and abetting claim to the extent that it is based on this allegation because Defendant Acob is the only person who had the authority to hire and fire DPAs. [Mem. in Supp. of Motion at 13 (citing Tipton Decl., Exh. S (excerpts of Charter, County of Maui) at § 8–3.3).] Further, Defendant Acob could not aid and abet himself. [ Id.]

Paragraphs 58 and 59 of the Second Amended Complaint allege that Defendants Acob and Tate used the narcotics training class to establish a pretext for Plaintiffs'...