Kosegarten v. Dep't of the Prosecuting Attorney

MARIE J. KOSEGARTEN, Plaintiff,

v.THE DEPARTMENT OF THE PROSECUTING ATTORNEY, ET AL., Defendants.

CIVIL NO. 10-00321 SOM-KSC

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAII

Dated: November 29, 2011

ORDER GRANTING IN PART AND DENYING IN PART AS MOOT

DEFENDANTS' MOTION FOR JUDGMENT ON THE PLEADINGS

ON CERTAIN CLAIMS, AND GRANTING PLAINTIFF'S

REQUEST FOR LEAVE TO FILE A SECOND AMENDED COMPLAINT

On August 11, 2011, Defendants Department of the Prosecuting Attorney, County of Maui ("the Department"); Benjamin M. Acob, in his individual capacity ("Defendant Acob"); and Timothy T. Tate, in his individual capacity ("Defendant Tate", all collectively, "Defendants")¹ filed the instant Motion for Judgment on the Pleadings on Certain Claims ("Motion"). Plaintiff Marie J. Kosegarten ("Plaintiff") filed her memorandumin opposition on October 19, 2011, and Defendants filed their reply on October 25, 2011. This matter came on for hearing on November 9, 2011. Appearing on behalf of Defendants was Cheryl Tipton, Esq., and appearing on behalf of Plaintiffs were Michael Green, Esq., Richard Gronna, Esq., and Caprice Itagaki, Esq. After the hearing, the parties submitted, and this Court approved, a stipulation dismissing various portions of the First Amended Complaint with prejudice, rendering part of the instant Motion moot. After careful consideration of the Motion, supporting and opposing memoranda, and the arguments of counsel, Defendants' Motion is HEREBY GRANTED IN PART AND DENIED IN PART AS MOOT for the reasons set forth below. In addition, Plaintiff's request for leave to file a Second Amended Complaint is HEREBY GRANTED.

BACKGROUND

Plaintiff filed the instant employment discrimination and retaliation action on June 4, 2010. She filed the First Amended Complaint on June 23, 2010. Plaintiff states that, on or about October 17, 2008, June 10, 2009, and July 9, 2009, she timely filed complaints with the Equal Employment Opportunity Commission ("EEOC") and the Hawaii Civil Rights Commission ("HCRC"). The EEOC and HCRC each provided a right to sue letter for her claims. Each letter is dated March 8, 2010. Plaintiff states that she sent a Notice of Claim pursuant to Haw. Rev. Stat. § 46-72 on June 2, 2010. Plaintiff therefore asserts thatshe has met all of the conditions precedent for this action, as required under 42 U.S.C. § 2000e. [First Amended Complaint at ¶¶ 10-12.]

At all relevant times, Defendant Acob was the County's Chief Prosecuting Attorney ("County Prosecutor") and Defendant Tate was a County deputy prosecuting attorney ("DPA"). [Id. at ¶¶ 7-8.]

I. Factual Background

The Department originally hired Plaintiff as a DPA on November 12, 1991. Plaintiff remained in that position until she resigned in August 1997 to relocate to the mainland. On April 1, 2000, Plaintiff returned to Hawai`i, and the Department hired her as a felony screening DPA. Plaintiff was promoted to District Court Supervisor in 2003, and she received the Department's Manager of the Year award in July 2003. Plaintiff received another promotion in 2005 and began prosecuting felony cases. In or around 2006, Plaintiff was one of the Judicial Selection Commission's finalists for a judgeship in the Second Circuit District Court. [Id. at ¶¶ 13-19.]

Defendant Acob became the County Prosecutor around the end of 2006 or early 2007. Plaintiff alleges that, in January 2007, Defendant Acob reassigned her to the District Court Supervisor position without reason. [Id. at ¶¶ 20-21.]

Plaintiff alleges that, in September 2007, Defendant Tate asked Plaintiff to do him a favor by promoting Jacki Jura, aDPA under Plaintiff's supervision with whom Defendant Tate was romantically involved. Plaintiff refused because Ms. Jura was not qualified for a promotion, and Plaintiff reported Defendant Tate's request to his supervisor. Shortly after the report, Plaintiff learned that Defendant Tate began referring to Plaintiff as a "lesbian" and a "butch" to the Department's staff, including Ms. Jura. Plaintiff alleges that she was ridiculed and mocked in the office as a result. [Id. at ¶¶ 22-25.]

On October 29, 2007, Defendant Tate demanded that Plaintiff recommend DPA Yukari Murakami, with whom he was romantically involved at the time, for a promotion. Plaintiff declined because Ms. Murakami was not qualified for the promotion. Plaintiff told Defendant that his requests were improper and that he should speak to Defendant Acob. On the same date, or closely thereafter, Plaintiff attended a management meeting with Defendant Acob, Personnel Manager Wayne Steel, and all of the managing DPAs. Plaintiff reported Defendant Tate's demands, but no action was taken. According to Plaintiff, immediately after the meeting, Defendant Tate was informed about Plaintiff's report to the management team. [Id. at ¶¶ 26-29.]

On or about October 30, 2007, Defendant Tate filed an internal complaint against Plaintiff, alleging that she had discriminated against Ms. Jura and Ms. Murakami because she was jealous of them. He also claimed Plaintiff had said that no woman under her supervision would be able to have a relationshipwith him. Plaintiff alleges that Defendant Tate's complaint damaged her reputation as a supervisor. The Department and Defendant Acob investigated the complaint. Defendant Acob spoke with Ms. Jura and Ms. Murakami, both of whom praised Plaintiff as a supervisor and denied that Plaintiff either discriminated against them or treated them improperly or unfairly. [Id. at ¶¶ 30-33.]

Defendant Tate later spread false rumors among the Department's staff, including Ms. Jura and Ms. Murakami, that Plaintiff had called Ms. Jura and Ms. Murakami "idiots" and "morons". On August 27, 2007,² Mr. Steel and DPA Peter Hanano and/or Defendant Acob threatened to discipline or terminate Plaintiff because of the name-calling. Sometime at the end of 2007, both Ms. Jura and Ms. Murakami were terminated. Plaintiff was on personal leave at the time and did not discover that they had be terminated until she returned to work. Both Ms. Jura and Ms. Murakami filed HCRC/EEOC complaints claiming that Plaintiff discriminated against them and/or treated them improperly or unfairly. [Id. at ¶¶ 34-38.]

On November 5, 2007, at a meeting with Mr. Steel and Mr. Hanano, Plaintiff again complained about Defendant Tate's improper conduct and the office ridicule and harassment she was experiencing as a result. At the Department's instruction,Plaintiff filed a written complaint on November 18, 2007. On December 31, 2007, Defendants informed her that they and the Corporation Counsel investigated her complaint and concluded it was unfounded. Corporation Counsel, however, later told Plaintiff that they never received her complaint and that they were not aware of its existence. Plaintiff provided Corporation Counsel with a copy of her complaint, but no action was taken. [Id. at ¶¶ 39-43.]

On or about August 14, 2008, Plaintiff learned that she had been nominated for Manager of the Year. Plaintiff states that she was the only person nominated, and Defendants decided not to present an award that year. [Id. at ¶¶ 44-45.]

On August 25, 2008, Defendant Acob questioned Plaintiff about a sketch of a former employee that had been posted in the District Court building. Plaintiff told him that she was not aware of the incident, but Defendant Acob threatened to discipline and/or terminate her for failing to address it. On August 27, 2008, Plaintiff informed Defendants that she was going to file a formal complaint because their actions constituted harassment and retaliation and created a hostile work environment. She filed EEOC Charge No. 486-2008-00510 ("EEOC Complaint 1") on October 15, 2008. At around that time, Defendant Acob and/or his staff later informed Plaintiff that they could not find merit in Defendant Tate's complaint against her, but that she was also under a new investigation for amanagement violation. [Id. at ¶¶ 46-49.]

In March 2009, Defendants instructed Plaintiff to attend Defendant Tate's narcotics training class. Plaintiff requested that she be allowed to receive the training through other means because of her history with Defendant Tate, but her request was denied. Plaintiff states that she had to leave the class because she became physically ill. She again requested alternate training, but her request was again denied. Plaintiff emphasizes that Defendant Tate's presentation was later made available on Power Point for attorneys who could not attend the training. During an April 2, 2009 meeting, Plaintiff was reprimanded for failing to attend the training class. Defendant Acob told her that she would be disciplined immediately unless she maintained contact with Defendant Tate and attended his training classes. Defendant Acob informed Plaintiff that he was planning to demote her and that Defendant Tate would be her supervisor. Plaintiff was therefore forced to interact with Defendant Tate. [Id. at ¶¶ 50-58.]

In May 2009, Plaintiff learned that Cynthia Sims, a DPA under Plaintiff's supervision, had not been at work on Friday, May 15, 2009. Plaintiff investigated and learned that Ms. Sims had approved sick leave to go to O`ahu for a doctor's appointment. Plaintiff was satisfied that Ms. Sims had not violated any of the Department's rules, but Defendant Acob later demanded that Plaintiff take immediate disciplinary actionagainst Ms. Sims. Plaintiff tried to explain that she had verified Ms. Sims' authorization for the leave and that Plaintiff had proof, but Defendant Acob continued to demand that she discipline Ms. Sims. Plaintiff objected because Ms. Sims neither broke a rule nor inconvenienced other attorneys. Defendant Acob demanded that Plaintiff impose a new rule on Ms. Sims that would require her to have a doctor's note each time she was sick and to fly back to Maui to work the later half of the day after a morning doctor's appointment on O`ahu. Plaintiff objected that this was against the Department's policies about...