The statutory scheme itself indicates that Congress did not intend to impose individual liability on employees. . . . Congress did not intend to impose individual liability on employees. . . . If Congress decided to protect small entities with limited resources from liability, it is inconceivable that Congress intended to allow civil liability to run against individual employees");
accord Lum v. Kauai County Council,
358 Fed. Appx. 860, 862 (9th Cir. 2009) ("there is no individual liability under Title VII");
Padway v. Palches,
665 F.2d 965, 968 (9th Cir. 1982) (holding that individual defendants cannot be held liable for back pay under Title VII);
Lenhardt v. Basic
Inst. of Tech., Inc.,
55 F.3d 377, 381 (8th Cir. 1995) ("Supervisors and other employees also cannot be held liable under Title VII in their individual capacities."). It is difficult to see how Title VII could be said to preempt claims that could not be brought under Title VII.
4. Claim 4: Violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d.
Plaintiffs allege that the City has violated Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, which prohibits discrimination by actors who receive federal funding. Under 42 U.S.C. § 2000d:
No person in the United States shall, on the ground of race, color, or national origin, be excluded from participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.
42 U.S.C. § 2000d (1994).
To state a Title VI claim for damages, "a plaintiff need only allege that (1) the entity involved is engaging in racial discrimination; and (2) the entity involved is receiving federal financial assistance." Epileptic Found. v. City Cnty. of Maui, 300 F. Supp. 2d 1003, 1011 (D. Haw. 2003) (citing Fobbs v. Holy Cross Health Sys. Corp., 29 F.3d 1439, 1447 (9th Cir. 1994),overruled in part on other grounds by Daviton v. Columbia/HCA Healthcare Corp., 241 F.3d 1131 (9th Cir. 2001)).
To prevail on a Title VI claim, however, a plaintiff must prove two elements. First, the plaintiff must show that he is an "intended beneficiary of the federally-funded program the defendants . . . participated in." Wrenn v. Kansas, 561 F. Supp. 1216, 1221 (D. Kan. 1983); accord Otero v. Mesa Cnty. Valley Sch. Dist. No. 51, 470 F. Supp. 326, 329-30 (D. Colo. 1979); cf. Fobbs, 29 F.3d at 1447 (comparing Title VI pleading requirements and proof requirements). Second, the plaintiff must show that the defendant intentionally discriminated against him in violation of the statute. Alexander, 532 U.S. at 280, 121 S. Ct. 1511; Fobbs, 29 F.3d at 1447; Smith v. Univ. of Wash. Law Sch., 2 F. Supp. 2d 1324, 1336 (D. Wash. 1998). But pleading requirements differ from proof requirements. A Title VI plaintiff need not allege that the plaintiff was an intended beneficiary of the federally funded program. Fobbs, 29 F.3d 1439, 1447 (9th Cir. 1994) ("There is no requirement that plaintiff plead that he was an intended beneficiary of the federally funded program in which defendants are alleged to have participated."). Nor must a plaintiff allege intent to discriminate to assert a valid cause of action under Title VI. Id. ("Although the plaintiff must prove intent at trial, it need not be pled in the complaint."); accord Monteiro v. Tempe Union High Sch. Dist., 158 F.3d 1022, 1026 (9th Cir. 1998) ("Under Title VI, however, we have required only that the complaint allege that the defendant is engaging in discrimination, although a showing of intent is necessary at trial.").
The City seeks dismissal of the Title VI claim, arguing that the First Amended Complaint lacks allegations that Plaintiffs' race, color, or national origin motivated the alleged discriminatory conduct. This argument is unavailing, as there is no requirement that intent to discriminate be pled in a Title VI cause of action. Plaintiffs sufficiently assert a Title VI violation by alleging that the City engaged in discrimination and that the City received federal funding. See First Am. Compl. ¶ 7 (alleging that the City "received federal assistance").
5. Claim 5: Violations of the Hawaii constitution and Hawaii Revised Statutes § 378-2.
In Claim 5 of the First Amended Complaint, Plaintiffs allege violations of the Hawaii constitution and Hawaii Revised Statutes § 378-2. Defendants move to dismiss the Hawaii constitutional claim, as Hawaii Revised Statutes § 378-2 provides the relief Plaintiffs seek under the Hawaii constitution. See Defs. Mot. Dismiss 14, ECF No. 21. Plaintiffs have withdrawn their claim under the Hawaii constitution and limit this cause of action to a violation of Hawaii Revised Statutes § 378-2. See Opp'n 6, ECF No. 37. As Defendants do not move for dismissal of the § 378-2 claim, no part of Claim 5 is in issue on this motion.
6. Claim 6: Reckless Endangerment.
Plaintiffs withdrew Claim 6 (reckless endangerment) at the hearing because it was brought under criminal statutes that do not provide a private right of action. The court does not address this withdrawn claim.
7. Claim 7: Hate Crimes.
Plaintiffs also withdrew Claim 7 (hate crimes) at the hearing because it was brought under criminal statutes that do not provide a private right of action. The court does not address this withdrawn claim.
8. Claim 8: Negligent Training, Supervision and/or Retention; Negligent Failure to Report and Investigate.
Plaintiffs allege negligent training, supervision, and retention, along with negligent failure to report and investigate by the City, Chief Correa, Chief Kealoha, Assistant Chief McEntire, Major Simmons, Captain Dolera, Lieutenant Kwon, Lieutenant Axt, Sergeant Fernandez, and Sergeant Tanaka. See First Am. Compl. ¶ 45. To establish negligence, Plaintiffs must demonstrate a duty, breach of that duty, legal causation, actual injury and, for respondeat superior to apply, that the act occurred within the scope of the employee's employment. See Black v. Correa, Civ. No. 07-299, 2007 WL 3195122, at *8 (D. Haw. Oct. 30, 2007).
a. Individual Officers.
Under Hawaii state law, nonjudicial government officials performing a public duty enjoy qualified or conditional immunity when sued under state law. See Towse v. State, 64 Haw. 624, 631, 647 P.2d 696, 702 (1981); Pahk v. State of Hawaii, 109 F. Supp. 2d 1262, 1269 (D. Haw. 2000). This immunity is overcome if the official was motivated by malice and not by an otherwise proper purpose. See Kajiya v. Dep't of Water Supply, 2 Haw. App. 221, 629 P.2d 635, 640 (Haw. Ct. App. 1981); Medeiros v. Kondo, 55 Haw. 499, 522 P.2d 1269, 1271-72 (Haw. 1974) ("We feel strongly that if an official, in exercising his authority is motivated by malice, and not by an otherwise proper purpose, then he should not escape liability for the injuries he causes."). Hawaii courts define malice as "the intent, without justification or excuse, to commit a wrongful act", "reckless disregard of the law or of a person's legal right" and "ill will; wickedness of heart." See Awakuni v. Awana, 115 Haw. 126, 141 (2007). Therefore, Plaintiffs must allege not only negligence but also malice by the individual Defendants to survive a motion to dismiss Count 8.
Plaintiffs allege that the individual Defendants sued in Count 8 owed them a duty "to effectively and adequately implement anti-discrimination policies and procedures" and "train and supervise employees of HPD." See First Am. Compl. ¶ 76. Plaintiffs state that Defendants' negligent acts and omissions in failing to provide backup breached their duties. See id. ¶ 78. Furthermore, Plaintiffs allege causation and damage in stating that Defendants' breach of these duties caused economic and emotional damage. See id. ¶ 79. Plaintiffs further allege that they suffered fear of bodily harm and death, along with injury to reputation. See id.
Notably, Plaintiffs allege malicious acts only by Sergeant Fernandez and Lieutenant Kwon. For example, Sergeant Fernandez allegedly ordered all non-DUI Team officer not to provide cover to the DUI Team. See First Am. Compl. 18, ¶ 33(F). Plaintiffs allege that this order was given specifically to those who should have provided cover for Dowkin because Sergeant Fernandez "intended to discriminate Dowkin and cause him to suffer harm."See id. Sergeant Fernandez also allegedly chastised Bennett-Bagorio in front of her peers when she provided backup for Dowkin, see First Am. Compl. 19, ¶ 33(I), and allegedly ordered Delgadillo to abandon backup of Dowkin over the radio,see First Am. Compl. 21, ¶ 33(N). On another occasion when Dowkin requested backup, Lieutenant Kwon did not provide cover even though he was allegedly available. See id. ¶ 33(O). Lieutenant Kwon was allegedly playing computer games while Dowkin was processing the arrest of an intoxicated suspect. See id. Captain Dolera allegedly stated that Lieutenant Kwon's response was "reprehensible." See id. ¶ 33(P).
Viewing the allegations in the Complaint and construing them in a light most favorable to Plaintiffs, the court concludes that Plaintiffs allege sufficient facts that, if proven through evidence obtained during discovery, may demonstrate negligence on the part of Lieutenant Kwon and Sergeant Fernandez, but not the other individual Defendants named in Count 8.
b. Municipal Liability.
A municipality is "subject to the state's tort laws in the same manner as any other private tortfeasor may be liable for state law torts that its agents committed." Kahale v. City and Cnty. of Honolulu, 104 Haw. 341, 349, 90 P.3d 233, 241 (Haw. 2004); see also Lauer v. Young Men's Christian Ass'n of Honolulu, 57 Haw. 390, 402, 557 P.2d 1334, 1341 (Haw. 1976) (holding that a municipality may be liable "on the same principles which impose liability on a non-municipal principal for the tortious conduct of its agents"). Under a respondeat superior theory of liability, an employer, including the City, may be held liable for the negligent acts of its employees if the acts occur within the scope of the employees' employment, even if the foreseeable effects of the acts occur outside the scope of employment. See Wong-Leong v. Hawaiian Indep. Refinery, Inc., 76 Haw. 433, 438-39, 879 P.2d 538, 543-44 (Haw. 1994). The State of Hawaii recognizes a respondeat superior theory that holds a municipality liable for the tortious acts of its agents committed with "malice" within the scope of the agents' employment. See Lane v. Yamamoto, 2 Haw. App. 176, 178, 628 P.2d 634, 636 (Haw. Ct. App. 1981). Thus, even if a public official acts with malice, the City still may be held liable if the act was completed within the scope of his or her employment. The court therefore allows the negligence claims against the City to proceed.
9. Claim 9: Intentional Infliction of Emotional Distress.
Defendants do not move to dismiss Claim 9. Accordingly, this claim remains for further adjudication.
10. Claim 10: Negligent Infliction of Emotional Distress.
The elements of a claim for negligent infliction of emotional distress ("NIED") are: (1) that the defendant engaged in negligent conduct; (2) that the plaintiff suffered serious emotional distress; and (3) that such negligent conduct of the defendant was a legal cause of the serious emotional distress.Tran v. State Farm Mut. Automobile Ins. Co., 999 F. Supp. 1369, 1375 (D. Haw. 1998). A cognizable claim for NIED under Hawaii law also "requires physical injury to either a person or property,"see Calleon v. Miyagi, 76 Haw. 310, 320, 876 F.2d 1278 (1994), or a mental illness, see Haw. Rev. Stat. § 663-8.9.
Plaintiffs bring a negligent infliction of emotional distress claim against all Defendants. However, as neither Delgadillo nor Bennett-Bagorio establishes a predicate physical injury or a mental illness, they cannot maintain a claim for NIED. See Lui Ciro, Inc. v. Ciro, Inc., 895 F, Supp. 1365 (D. Haw. 1995). Cf. Doe Parents No. 1 v. State, Dept. of Educ., 100 Haw. 34, 58 P.3d 545 (Haw. 2002) (exempting physical injury for NIED because of serious psychological trauma involved in student teacher molestation).
Sergeant Dowkin does allege a physical injury. He says he was hospitalized for a heart ailment for the first time in his life from "the stress of the entire ordeal". See First Am. Compl. 32, ¶ 33(OOO). As Dowkin successfully pleads his NIED claim, his NIED claim against Lieutenant Kwon, Sergeant Fernandez, and the City remains for further adjudication.
11. Claim 11: Bad Faith Breach of Employment Contract.
Plaintiffs may not maintain a cause of action for breach of the covenant of good faith and fair dealing in the employment context on the facts of this case.
The Hawaii Supreme Court has stated its reluctance to support tort claims for breach of good faith or fair dealing in the context of employment contracts because that tort generally is reserved for contracts in the insurance context. See Francis v. Lee Enter., Inc., 89 Haw. 234, 237-39, 971 P.2d 707, 710-12 (Haw. 1999). In Francis, the Hawaii Supreme Court cited cases holding that a tort for breach of an implied covenant of good faith and fair dealing may not be maintained for contracts. See, e.g., Foley v. Interactive Data Corp., 47 Cal.3d 654, 254 Cal. Rptr. 211, 765 P.2d 373, 374 (Cal. 1988). Even if such a tort may exist outside of the insurance context, see Pachuta v. Unumprovident Corp., 242 F. Supp. 2d 752, 761 (D. Haw. 2002), Hawaii appellate law does not extend the tort to at-will, employee-employer relationships.
Plaintiffs do not allege facts suggesting anything other than an at-will employment situation. Given Hawaii Supreme Court precedent and the factual allegations contained in Plaintiffs' First Amended Complaint, Plaintiffs do not state a claim upon which relief can be granted. See also Black v. Correa, 2007 WL 3195122, at *15 (D. Haw. Oct. 30, 2007). Accordingly, the court grants the Defendants' motion to dismiss the bad faith breach of employment contract claim.
12. Claim 12: Defamation Per Se.
Defendants move to dismiss the claim for defamation per se. The court dismisses this claim because the statements alleged by Plaintiffs are not actionable as a matter of law.
Defamation per se is a special character of defamation that consists of four categories: (1) imputation of a serious crime involving moral turpitude, (2) possession of a loathsome disease, (3) attack on the plaintiff's competency in his business, trade, or profession, or (4) unchastity in women. See Carey v. Piphus, 435 U.S. 247, 263, 98 S. Ct. 1042, 1052 n. 18 (1978).
Plaintiffs allege that several Defendants made racially and sexually offensive statements, but they fail to allege statements falling under any of the defamation per se categories. For example, Officer Kashimoto allegedly referred to Delgadillo as a "big-nosed Mexican" and to Dowkin as "popolo" (the Hawaiian word for a black berry that is used by some to refer to an African-American). See First Am. Compl. 28, ¶ 33(TT). Lieutenant Kwon also told Officer Delgadillo that "Mexicans can only drive BMW's or Mercedes if they are stolen." See First Am. Compl. 27, ¶ 33(QQ). At the hearing, Plaintiffs conceded that they had no case law holding that such racial epithets constitute defamation per se. As these comments do not fit any of the defamation per se categories, the court dismisses the claim for defamation per se.
Quite apart from the confines of defamation per se, the court questions whether a racial epithet qualifies as even garden variety defamation. As reprehensible as racial epithets are, they do not appear to the court to fit within the tort of defamation.
13. Claim 14: Civil Conspiracy.
Plaintiffs' last cause of action in its First Amended Complaint is a claim for civil conspiracy. Hawaii courts have stated that "the accepted definition of a conspiracy is a combination of two or more persons or entities by concerted action to accomplish a criminal or unlawful purpose, or to accomplish some purpose not in itself criminal or unlawful by criminal or unlawful means."Fisher v. Grove Farm Co., Inc., 123 Haw. 82, 116, 230 P.3d 382, 416 (Haw. App. 2009). This court has therefore stated that "the common law tort of civil conspiracy has three elements: (1) the formation of a conspiracy; (2) wrongful conduct in furtherance of the conspiracy, i.e., an actionable claim based upon deceit; and (3) damage." Young v. Bishop Estate, Civ. No. 09-00403, 2009 WL 3763029, at *14 (D. Haw. Nov. 6, 2009). Civil conspiracy arises out of two or more defendants' specific actionable conduct — it "does not alone constitute a claim for relief." Siu v. Alwis, No. 07-00386, 2010 WL 2017104, *11 (D. Haw. June 18, 2009) (quotingWeinberg v. Mauch, 78 Haw. 40, 49, 890 P.2d 277, 286 (1995)).
Plaintiffs' First Amended Complaint adequately pleads a civil conspiracy claim. Plaintiffs allege that Defendants conspired not to provide backup. See First Am. Compl. ¶ 27. Plaintiffs allege wrongful conduct in that the conspiracy was designed with "reckless disregard for Plaintiffs' physical safety" and arose because of Defendants' "intent to discriminate" against Dowkin and Delgadillo because of their race and against Bennett-Bagorio because of her gender. See id. This conspiracy allegedly resulted in failure to provide backup on numerous occasions in response to Plaintiffs' specific requests for assistance. See id. ¶ 33. Plaintiffs allege damages in the form of, among other things, front and back pay, economic loss, emotional distress, and fear of bodily harm and death. See id. ¶ 111.
Plaintiffs also allege that several Defendants conspired to give Delgadillo a poor performance rating. Dowkin was allegedly ordered to rewrite his review of Officer Delgadillo and was forced to give him a "5" as a performance rating. See First Am. Compl. 32, ¶ 33(OOO). Major Simmons, Assistant Chief Tamashiro, Major McEntire, and Pat Ah Loo allegedly were "in conspiracy" to reduce Delgadillo performance rating below that level. See id. Plaintiffs further allege that these officers did not permit Delgadillo to respond to the reduction. See id. The stress of this order allegedly caused Dowkin to be hospitalized for a heart ailment for the first time in his life. See id. Without opining as to the merits of this claim, the court concludes that Plaintiffs adequately allege a civil conspiracy.
B. If Plaintiffs Want To Amend The Complaint, They Must File A Proper Motion Seeking Leave To Do So.
Plaintiffs ask for leave to further amend their First Amended Complaint if this court is dismissing claims. This request should be brought by Plaintiffs in a separate motion, not in their opposition to Defendants' motion. The court further recommends that any such motion attach a proposed Second Amended Complaint. This court has previously stated:
To obtain leave to amend, the party's motion should attach a copy of the proposed amendment or new pleading. Failure to attach the proposed amendment is not necessarily fatal, but may result in denial of leave to amend on the grounds that the court cannot evaluate the propriety of granting leave unless the court is presented with the substance of the proposed amendment.
Won v. Dias, Civ. No. 06-00242,
2008 WL 113661, *3 (D. Haw. Jan. 11, 2008) (citing Local Rule 10.3; 3 James Wm. Moore et al., Moore's Federal Practice § 15.17[1] (3d ed. 2007)).
This court in no way suggests that leave should indeed be granted. The court leaves that determination to the Magistrate Judge if Plaintiffs file such a motion.
V. CONCLUSION.
For the foregoing reasons, the court grants the motion to dismiss Claim 3 ( 42 U.S.C. § 1981), Claim 11 (bad faith breach of employment contract), and Claim 12 (defamation per se). The court also grants the motion to dismiss Claim 13 ( 42 U.S.C. § 1983) against the City, but denies the motion to dismiss the portion of Claim 13 directed to individual Defendants. Claim 10 (NIED) is dismissed to the extent it asserts claims by Delgadillo and Bennett-Bagorio, but the portion of Claim 10 brought by Dowkin is not dismissed and remains for further adjudication.
The court denies the motion to dismiss Claim 4 ( 42 U.S.C. § 2000d) and Claim 14 (civil conspiracy). The court also denies the motion to dismiss Claim 8 (negligence) against Lieutenant Kwon, Sergeant Fernandez, and the City, but dismisses Claim 8 as against other Defendants.
As Plaintiffs have withdrawn Claim 1 (federal Constitution), Claim 6 (reckless endangerment), and Claim 7 (hate crimes), those claims are no longer in issue in this case. Claim 2 (Title VII), Claim 5 (violation of Hawaii Revised Statutes § 378-2) and Claim 9 (IIED) were not the subject of the present motion and remain for further adjudication.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, November 30, 2010