Ragasa v. Cnty. of Kaua'I

CARL A. RAGASA, Plaintiff, v. COUNTY OF KAUA'I; ROBERT F. WESTERMAN; KALANI VIERRA;NORMAN HUNTER; JOHN DOES 1-50; JANE DOES 1-50;DOE ASSOCIATIONS 1-50; DOE PARTNERSHIPS 1-50;DOE CORPORATIONS 1-50; AND DOE GOVERNMENTAL AGENCIES 1-50, Defendants.

CIVIL NO. 14-00309 DKW-BMK

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI'I

February 8, 2016

ORDER GRANTING IN PART AND DENYING IN PART: (1) ROBERT F. WESTERMAN'S, IN HIS INDIVIDUAL CAPACITY, MOTION FOR SUMMARY JUDGMENT [DKT. NO. 105]; (2) KALANI VIERRA'S, IN HIS INDIVIDUAL CAPACITY, MOTION FOR SUMMARY JUDGMENT [DKT. NO. 108]; (3) NORMAN HUNTER'S, IN HIS INDIVIDUAL CAPACITY, MOTION FOR SUMMARY JUDGMENT [DKT. NO. 112]; (4) COUNTY OF KAUAI'S MOTION FOR SUMMARY JUDGMENT [DKT. NO. 115]; AND (5) CARL A. RAGASA'S FRCP 12(B)(6) MOTION TO DISMISS NORMAN HUNTER'S COUNTERCLAIM FILED OCTOBER 12, 2015 [DKT. NO. 118]

INTRODUCTION

Plaintiff Carl Ragasa alleges that the County of Kauai Fire Department ("KFD") and KFD supervisors, Robert F. Westerman, Kalani Vierra, and Norman Hunter, retaliated against him after he reported improper conduct by fellow KFD employees that included gas theft, on-duty drug use, and the falsification of time sheets. Because issues of fact persist with respect to Ragasa's 42 U.S.C. § 1983 First Amendment retaliation claim against the individually named Defendants (Count I), as well as his Hawaii Whistleblowers Protection Act, Haw. Rev. Stat. ("HRS") § 378-62 claim against the County (Count III), the motions for summary judgment are DENIED as to those claims. The motions are GRANTED with respect to the Section 1983 municipal liability claim against the County (Count II), and the intentional infliction of emotional distress claim against the individually named Defendants (Count IV). Finally, the motions are GRANTED IN PARTwith respect to the respondeat superior liability claim against the County (Count V).

Ragasa's motion to dismiss Hunter's Counterclaim is GRANTED as to Counts I and II and DENIED as to the remaining Counts.

BACKGROUND

I. Factual Background

A. KFD Organizational Procedures

Ragasa is employed by KFD as a Water Safety Officer ("WSO") in the Ocean Safety Bureau ("OSB"), the agency encompassing the County's lifeguard program. He has worked for the County for over 23 years. Ragasa does not have supervisory responsibilities, and his duty is to patrol the beaches, keep the public safe from any dangers they encounter in the water, and rescue swimmers in need. See Ragasa Decl. ¶ 2.

This matter involves alleged retaliation by several of Ragasa's supervisors by means of informal and formal discipline. Defendant Vierra is a KFD Ocean Safety Director, and Hunter is a KFD Water Safety Officer Supervisor. Both supervise Ragasa. Westerman is the Chief of the KFD, in charge of the entire department, including Ragasa and his supervisors. While other supervisors may discipline subordinates, disciplinary actions that are more severe than a writtenreprimand, such as suspensions or terminations, must be formally approved by Westerman or the KFD Deputy Chief. Declaration of Robert Westerman in Support of County Motion ("Off. Cap. Westerman Decl.") at ¶ 2 [Dkt. No. 116].

Complaints relating to workplace issues filed by non-exempt or non-management employees, such as Ragasa, are governed by a process subject to a Collective Bargaining Agreement ("CBA"). Generally, as Chief, Westerman does not initiate a formal investigation unless a complaint is submitted in writing. Disciplinary action imposed by Westerman based upon employee misconduct can be challenged by filing a "Step I" grievance form, followed by a "Step II" hearing pursuant to the CBA's grievance process. The employee may attend the Step II hearing with a union representative and provide evidence challenging the disciplinary action, after which Westerman can confirm or alter the disciplinary action. Off. Cap. Westerman Decl. ¶¶ 3-4. If the employee is dissatisfied with the Step II decision, he or she may challenge the decision at a "Step III" grievance hearing administered by the County Department of Human Resources ("DHR"), which may alter the disciplinary action or overturn it entirely. Under this configuration, the KFD Chief does not have the ultimate authority to impose workplace discipline on non-exempt and non-management KFD employees—that authority resides with DHR. Off. Cap. Westerman Decl. ¶ 5. Even Step IIIdecisions maybe challenged via arbitration. See e.g. Westerman Ex. 41 (8/7/15 Arbitration Decision).

B. Ragasa's 2010 Report to Hunter

Ragasa has a history of workplace disputes with KFD administration. The incidents relevant to the instant case began in March 2010 when Ragasa reported to Hunter having observed another KFD employee stealing gas from the County. Vierra Ex. 1 (8/19/2015 Ragasa Dep. Tr.) at 28-33. Ragasa claims that this employee was both Vierra's friend and partner in an unrelated business. 8/19/2015 Ragasa Dep. Tr. at 43-50. According to Ragasa, Hunter said he would take care of it and pass the information up the chain of command. Ragasa Decl. ¶ 10. In fact, Hunter confirmed that he relayed Ragasa's report to his supervisor, Vierra, who told him that he would investigate. 7/29/15 Hunter Dep. Tr. at 42. According to Vierra, he then, in turn, relayed Ragasa's report to Westerman, and Westerman told Vierra to have Hunter interview the employee whom Ragasa had accused of stealing the gas. 8/18/15 Vierra Dep. Tr. at 40-41. Hunter reported back to Vierra that the employee denied any gas theft, and no written report was made regarding the matter. 8/18/15 Vierra Dep. Tr. at 41.

During the time period he reported the alleged gas theft, and unbeknownst to Ragasa, a County-wide audit of gas dispensing practices was underway. As aresult of this private audit, changes were made to the process of fueling County vehicles and special keys and gas cards were issued to personnel. 8/18/15 Vierra Dep. Tr. at 175; 7/29/15 Hunter Dep. Tr. at 46; 7/30/15 Westerman Dep. Tr. at 47-48, 178-180.

On March 25, 2010, approximately a week after reporting the gas theft to Hunter, Ragasa asserts that Hunter arrived at the Anahola lifeguard tower where Ragasa was stationed and yelled at him about the cleanliness of a County truck there. Ragasa Decl. ¶ 12. Three weeks later, Hunter filed a "KFD Form 103 Report" and a "KFD Form 110 - Violence in the Workplace Report" based on the March 25, 2010 incident. In his April 13 and 14, 2010 reports, Hunter claims that when he tried to speak privately with Ragasa, Ragasa "made a stance that I recognized as a martial arts stance," and told Hunter to "beat it." Ragasa Ex. 11 (4/13/10 and 4/14/10 Hunter KFD Form 103), attached to CSOF in Opposition to Hunter Motion [Dkt. No. 126]. Hunter claims Ragasa raised his voice and waved his arms, "threatening to bring down the lifeguard program and Fire Dept." Ragasa Ex. 12 (4/13/10 Hunter KFD Form 110), attached to CSOF in Opposition to Hunter Motion [Dkt. No. 126]. Hunter submitted these reports to Vierra, who forwarded them to Westerman, who instructed Vierra to investigate. 8/18/15 Vierra Dep. Tr. at 90-91. According to Ragasa and Vierra, the parties worked it out in personduring a conversation at the Anahola tower.¹ The three (Hunter, Vierra and Ragasa) agreed to work on better communication and keeping KFD equipment in good condition, and ended their discussion by shaking hands. Ragasa Decl. ¶ 13; 8/18/15 Vierra Dep. Tr. at 91-92. Vierra then informed Westerman of the results of the investigation and meeting. 8/18/15 Vierra Dep. Tr. at 91-92.

C. 2012 Report of Employee Drug Use

In early 2012, Ragasa reported to Hunter that another WSO was smoking marijuana on duty in the Anahola lifeguard tower. Declaration of Norman Hunter in Support of Individual Capacity Motion ("Ind. Cap. Hunter Decl.") ¶ 19 [Dkt. No. 113]; 8/19/15 Ragasa Dep. Tr. at 60-61. According to Ragasa, Hunter's response was that he would speak to the employee, and Ragasa believes that the employee was transferred to a different lifeguard tower following his report to Hunter, because he never worked with that employee again. 8/19/15 Ragasa Dep. Tr. at 69, 171-72. Ragasa believes that the employee that was allegedly smoking marijuana was a friend of Hunter. 8/19/15 Ragasa Dep. Tr. at 193. Hunter states that following Ragasa's report, he spoke with the accused employee, who deniedsmoking marijuana in the lifeguard tower. Ind. Cap. Hunter Decl. ¶¶ 20-21. According to Hunter, because there was no other witness or evidence of drug use by the employee, "there was nothing else for [him] to investigate." He conveyed both Ragasa's complaint and his own inquiry to Vierra, his immediate supervisor, who concurred with both Hunter's actions and conclusions. Ind. Cap. Hunter Decl. ¶¶ 22-23; see also 7/29/15 Hunter Dep. Tr. at 52-53.

D. October 26, 2012 Training Incident and Investigation

On October 26, 2012, Ragasa attended a mandatory OSB Workplace Violence training program conducted by WSO Gerald Hurd. Ragasa was not in uniform and left the training session before it ended. Hurd filed a written complaint, and a KFD Form 110—Violence in the Workplace Report after Ragasa walked out of the training. See Westerman Ex. 1 (10/26/12 Complaint) and Ex. 2 (Hurd KFD 110), attached to CSOF in Support of Westerman Motion [Dkt. No. 106]. According to Hurd, Ragasa was upset that the training consisted of watching a DVD presentation, and told Hurd to "bring him the DVD to his tower and he could watch it there." Westerman Ex. 1 (10/26/12 Complaint). Ragasa also called Hurd and the KFD administration "clowns." Westerman Ex. 1 (10/26/12 Complaint) and Ex. 2 (Hurd KFD 110).

Westerman assigned Vierra to conduct an investigation of Hurd's complaint, directing him to speak to the personnel in attendance at the training session before reporting back. 8/18/15 Vierra Dep. Tr. at 70.

E. October 29, 2012 Report to Vierra, Investigation, and Discipline

On October 29, 2012, Ragasa called Vierra by...