LESLIE E. KOBAYASHI, District Judge.
Before the Court are the following motions, all filed on April 15, 2015: (1) Defendant Lieutenant William Axt's ("Axt") Motion for Partial Summary Judgment Against Plaintiff Sergeant Shermon Dean Dowkin on the Fifth Cause of Action of the Third Amended Complaint (Intentional Infliction of Emotional Distress) ("Axt IIED Motion"); (2) Defendants Sergeant Ralstan Tanaka ("Tanaka") and Officer Colby Kashimoto's ("Kashimoto") Motion for Summary Judgment Regarding Punitive Damages and Any Other Outstanding Claims ("Tanaka & Kashimoto Punitive Damages Motion"); (3) Defendants Lieutenant Dan Kwon ("Kwon") and Sergeant Wayne Fernandez's ("Fernandez") Motion for Partial Summary Judgment Against All Plaintiffs on the Third Cause of Action in the Third Amended Complaint (Violations of the Hawaii Civil Rights Law — HRS Section 378-2(3)) ("Kwon & Fernandez § 378-2(3) Motion");
Plaintiffs Sergeant Shermon Dean Dowkin ("Dowkin"), Frederico Delgadillo Martinez, Jr. ("Delgadillo"), and Cassandra Bennett Huihui
These matters came on for hearing on July 6, 2015. After careful consideration of the Motions, supporting and opposing memoranda, and the arguments of counsel, this Court rules as follows: the Axt IIED Motion is HEREBY GRANTED; the Tanaka & Kashimoto Punitive Damages Motion is HEREBY GRANTED IN PART AND DENIED IN PART; the Kwon & Fernandez § 378-2(3) Motion is HEREBY DENIED; and the Kwon & Fernandez Punitive Damages Motion is HEREBY DENIED.
The general factual and procedural background of this case is set forth in this Court's May 1, 2015 order addressing four previous defense motions for summary judgment ("5/1/15 Order"). [Dkt. no. 615.] This Court will only repeat the background that is relevant to the Motions currently before it.
Count V, Plaintiffs' intentional infliction of emotional distress ("IIED") claim, alleges that, "[b]y committing the acts and omissions" that Plaintiffs allege, "Defendant Axt inflicted emotional distress on Plaintiffs Dowkin and Delgadillo." [Third Amended Complaint for Compensatory, Statutory and Punitive Damages ("Third Amended Complaint"), filed 1/17/12 (dkt. no. 221), at ¶ 167.]
The Axt IIED Motion contends that Dowkin and Delgadillo have not presented any evidence to establish that Axt engaged in the type of outrageous conduct necessary to support an IIED claim. Axt notes that paragraph 112 of the Third Amended Complaint provides a list of dates on which Dowkin and/or Delgadillo were allegedly denied back-up cover when Axt was on-duty or otherwise available. However, during his deposition, Dowkin testified that he has no independent recollection of the denials of cover that the Third Amended Complaint alleges occurred on: February 22 and 29, 2008; March 8, 16, and 26, 2008; April 19, 2008; and June 7, 2008. [Separate & Concise Statement of Facts in Supp. of Axt IIED Motion ("Axt's IIED CSOF"), filed 4/15/15 (dkt. no. 587), Decl. of Jerold T. Matayoshi ("Matayoshi Decl."), Exh. A (Excerpts of Trans. of 4/4/11 Depo. of Shermon Dowkin ("Axt's Dowkin Depo.")) at 243-44, 246-49, 253-254, 258.] Dowkin's deposition testimony also indicates that, during some of these incidents, Delgadillo or another officer arrived on the scene to provide back-up cover or other assistance to Dowkin. [
As to Delgadillo, Axt emphasizes that Delgadillo testified that he had no independent recollection of the alleged failure to cover incidents on February 22 and 29, 2008, April 6, 2008, and June 7, 2008. [Matayoshi Decl., Exh. B (Excerpts of Trans. of 4/6/11 Depo. of Officer Federico Delgadillo Martinez, Jr. ("Axt's Delgadillo Depo.")) at 65-66, 105-07, 157.] Delgadillo testified that he covered Dowkin during the April 6, 2008 alleged incident, and several times on June 7, 2008. However, he could not recall if he covered Dowkin on the specific June 7 back-up calls at issue in this case. [
Dowkin and Delgadillo also testified that Axt: subjected them to unfair enforcement of Honolulu Police Department ("HPD") rules and other unfair internal orders; gave Dowkin poor performance ratings that he did not deserve; pressured Delgadillo not to complain about undeserved performance ratings by Fernandez; and transferred or threatened to transfer them in retaliation for their complaints. Axt argues that these do not rise to the level of outrageous conduct necessary to support an IIED claim.
Tanaka and Kashimoto emphasize that the only claims against them in the Third Amended Complaint are: Count III, Plaintiffs' claim pursuant to Haw. Rev. Stat. § 378-2(3); Count V, Plaintiffs' IIED claim; and Count VI, Bennett Huihui's negligent infliction of emotional distress ("NIED") claim against Tanaka. The Third Amended Complaint seeks punitive damages against Tanaka and Kashimoto, among others. In light of the 5/1/15 Order, the following claims remain: Bennett Huihui's IIED claim against Tanaka based on the Porky's Incident; Dowkin's IIED claim against based on the April 6, 2008 incident; and Dowkin's IIED claim against Kashimoto based on the October 11, 2010 incident.
Tanaka and Kashimoto argue that Delgadillo has no remaining claims against either of them, and Bennett Huihui has no remaining claims against Kashimoto. Thus, they argue that this Court should grant this motion as to Delgadillo's request for punitive damages against Tanaka and as to Bennett Huihui's and Delgadillo's request for punitive damages against Kashimoto. Tanaka and Kashimoto also argue that, as to the remaining claims against them, they are entitled to summary judgment on the request for punitive damages because Plaintiffs have not identified evidence that constitutes clear and convincing evidence that Tanaka and Kashimoto "acted wantonly or oppressively or with such malice as implies a spirit of mischief or criminal indifference to civil obligations." [Tanaka & Kashimoto Punitive Damages Reply at 11 (internal quotation marks omitted).]
The Kwon & Fernandez § 378-2(3) Motion first argues that they are entitled to summary judgment as to Count III because Plaintiffs failed to exhaust their administrative remedies. The arguments that they raise are the same as those addressed in the 5/1/15 Order, which granted summary judgment to Tanaka and Kashimoto as to the claims in Count III against them. Plaintiffs raise the same arguments that they raised in their opposition to Tanaka and Kashimoto's motion for summary judgment as to Count III. However, they note that, unlike Tanaka and Kashimoto, Kwon and Fernandez were named within the factual statements of Plaintiffs' charges of discrimination.
Kwon and Fernandez also argue that, even if this Court concludes that Plaintiffs properly exhausted their § 378-2(3) claims against them, Kwon and Fernandez are still entitled to summary judgment because Plaintiffs have not presented evidence to establish necessary elements of their claims.
Kwon and Fernandez emphasize that, in its June 18, 2015 Order Granting Defendants' Motions for Summary Judgment and Joinders Thereto ("6/18/15 Order"), this Court granted summary judgment in their favor as to Counts V and VI. [Dkt. no. 692.
The standards that this Court must apply to Plaintiffs' IIED claims are set forth in the 5/1/15 Order. In that order, this Court found that, "if Plaintiffs can prove that Tanaka denied Bennett Huihui and/or Dowkin back-up cover for discriminatory and/or retaliatory purposes, reasonable people could differ as to the question of whether this constitutes outrageous conduct sufficient to support an IIED claim, and the issue must be determined by the jury." 5/1/15 Order at 42 (footnote omitted) (citing
In support of the Axt IIED Opposition, Plaintiffs submitted an affidavit by Dowkin, an affidavit by Delgadillo, and excerpts of their deposition transcripts. [Pltfs.' Separate Concise Statement of Facts in Supp. of Axt IIED Opp. ("Pltfs.' Axt IIED CSOF"), filed 6/15/15 (dkt. no. 690), Aff. of Shermon Dean Dowkin ("Dowkin Aff.");
Dowkin testified that Axt was his immediate supervisor beginning in January 2008. [Pltfs.' Dowkin Depo. at 54-55.] Axt does not dispute this. Although Plaintiffs acknowledge the prior rulings that this Court has made regarding their IIED claims against other defendants, they argue that Axt "should be held to a higher standard" because he is a supervisor. [Axt IIED Opp. at 10.] They assert that "`[e]vidence of discriminatory animus exhibited by an individual who influenced or participated in the decision making process is sufficient to overcome summary judgment.'" [
At the hearing on the Motions, Plaintiffs' counsel argued that Dowkin and Delgadillo can base their IIED claims against Axt upon the actions of Axt's subordinates. Plaintiffs, however, cite no legal authority to support this proposition. In order to be held liable for IIED, Axt must have committed an act that, inter alia, was intentional or reckless.
Based on Plaintiffs' own evidence, Axt was not the defendant who ordered other officers not to help the driving under the influence ("DUI") team.
Plaintiffs apparently argue that Dowkin informed Axt about the denial of back-up cover to the DUI team, but Axt failed to respond appropriately. Dowkin testified that he met with Axt around January 8, 2008 to discuss the issue, and Axt responded by asking Dowkin if he had ever had Criminal Investigations Division ("CID") training. [Pltfs.' Dowkin Depo. at 56-57.] Later that night, Dowkin had a second meeting with Axt, and Axt said "they" were considering transferring Dowkin to CID for training because he "was disruptive to the watch." [
First, Plaintiffs have not presented any evidence which suggests that Axt was responsible for ensuring that other officers provided back-up cover to the DUI team each time a member of the team requested cover. Dowkin merely testified that, in general, if an officer notifies HPD dispatch that he or she needs cover for a traffic stop, "their procedure is to automatically send cover unless the officer canceled cover." [
Dowkin has asserted that, after he reported the denial of cover issue to Axt on January 8, 2008, Axt threatened to send him to CID training to dissuade him from complaining about the denial of cover issue. [Pltfs.' Dowkin Depo. at 56-58, 60-62, 123, 139.] First, Plaintiffs have presented no evidence, other than Dowkin's testimony, that the CID training was a form of punishment or disincentive that was intended to dissuade him from reporting denials of back-up cover. Further, based on Dowkin's deposition testimony, he merely
The only other evidence about what action Axt took in response to the issue is the following testimony regarding a meeting on January 9, 2008:
[Pltfs.' Dowkin Depo. at 227-28.] Thus, even viewing the record in the light most favorable to Plaintiffs,
This Court therefore GRANTS the Axt IIED Motion as to the portion of Dowkin's and Delgadillo's IIED claims against Axt based upon his response to his subordinates' alleged failure to provide back-up cover to Dowkin and Delgadillo.
In addition, Dowkin and Delgadillo each allege that there were specific incidents when he was denied back-up cover and that Axt was on-duty during those times, but Axt personally failed to provide cover. Plaintiffs allege that:
[Third Amended Complaint at ¶ 112.]
During his deposition, Dowkin testified that he has no independent recollection of the alleged denials of back-up cover on February 22 and 29, 2008, March 8, 16, and 26, 2008, April 19, 2008, and June 7, 2008. Even viewing the incident reports did not refresh his recollection; he had to rely on the contents of the report. [Axt's Dowkin Depo. at 243-44, 246-49, 253-254, 258.] Plaintiffs, however, did not submit the incident reports with Plaintiffs' Axt CSOF. There is no evidence in the current record regarding the alleged denial of back-up cover on July 30, 2008. Since Dowkin has presented no evidence establishing a failure to provide back-up cover, this Court finds that, even viewing the record in the light most favorable to him, Dowkin has failed to establish a prima facie case for the portion of his IIED claim based on the alleged discriminatory and/or retaliatory denial of back-up cover on February 22 and 29, 2008, March 8, 16, and 26, 2008, April 19, 2008, and July 30, 2008.
Although Dowkin stated that he did not have an independent recollection of the incident on June 7, 2008, and Plaintiffs did not provide this Court with the report regarding the incident, Dowkin gave other testimony regarding this incident, and Plaintiffs filed a copy of the internal complaint that Dowkin submitted stating that he was denied cover on that day. [Pltfs.' Dowkin Depo. at 134-37; Exh. 6,
Even construing the record in the light most favorable to Plaintiffs, the mere fact that Axt responded to a fire call instead of providing back-up cover for Dowkin's traffic stop does not create a genuine issue of fact that Axt's failure to provide back-up cover was discriminatory or retaliatory. Further, this Court finds that reasonable minds could not differ on the issue of whether Axt's failure to provide cover was so outrageous as to support an IIED claim.
This Court therefore GRANTS the Axt IIED Motion as to the portion of Dowkin's IIED claim against Axt based on the discriminatory and/or retaliatory denial of back-up cover on February 22 and 29, 2008, March 8, 16, and 26, 2008, April 19, 2008, June 7, 2008, and July 30, 2008.
Dowkin testified that he has an independent recollection of the April 6, 2008 arrest when he was denied back-up cover while Axt and Tanaka were on duty. In addition, Dowkin stated that he has a video recording of this arrest which clearly shows that he called for cover and no one came. [Axt's Dowkin Depo. at 254-55.] Axt emphasizes that Dowkin acknowledged during his deposition that Delgadillo provided him with adequate cover during this arrest. [Axt's IIED CSOF at ¶ 18.] However, Dowkin explained that Delgadillo was not on patrol at the time, and the patrol officers failed to cover them. [Axt's Dowkin Depo. at 254-55.] This Court, however, has previously found that Delgadillo's cover for Dowkin did not necessarily excuse other officers from providing cover. [5/1/15 Order at 40.] This Court has also found that, if Plaintiffs can prove that one of the individual Defendants denied Dowkin "back-up cover for discriminatory and/or retaliatory purposes, reasonable people could differ as to the question of whether this constitutes outrageous conduct sufficient to support an IIED claim, and the issue must be determined by the jury." [
In order for Dowkin's IIED claim based on the April 6, 2008 incident to survive summary judgment, he must, inter alia, raise a genuine issue of fact as to whether Axt intentionally or recklessly denied Dowkin back-up cover. The only evidence in the record addressing Axt's involvement in the incident is Dowkin's testimony that Axt was on duty when the traffic stop occurred. [Axt's Dowkin Depo. at 254.] There is no evidence that, for example, Axt heard the dispatcher report that Dowkin needed cover for a traffic stop, and Axt was expected to provide cover because he was the closest available officer. There is no indication in the record that Axt was even aware of Dowkin's traffic stop at that time. The mere fact that Axt was on-duty at the time of the alleged denial of back-up cover on April 6, 2008 is not sufficient to raise a genuine issue of fact as to whether Axt intentionally or recklessly denied Dowkin cover.
This Court therefore FINDS that there are no genuine issues of material fact regarding Axt's involvement in the April 6, 2008 incident, and CONCLUDES that Axt is entitled to judgment as a matter of law as to that portion of Dowkin's IIED claim.
Delgadillo testified that he had no independent recollection of the alleged failure to cover incidents on February 22 and 29, 2008, April 6, 2008, and June 7, 2008. [Axt's Delgadillo Depo. at 65-66, 105-07, 157.] As noted, supra, Plaintiffs did not submit reports about these traffic stops. Further, there is no evidence in the current record which would establish any of the other incidents that are alleged in the Third Amended Complaint when Delgadillo was denied back-up cover for discriminatory and/or retaliatory reasons. Since Delgadillo has presented no evidence establishing a failure to provide back-up cover, this Court finds that, even viewing the record in the light most favorable to him, Delgadillo has failed to establish a prima facie case for the portion of his IIED claim based on the discriminatory and/or retaliatory denial of back-up cover.
This Court therefore FINDS that there are no genuine issues of material fact as to the portions of Delgadillo's IIED claim against Axt based on the alleged denials of back-up cover. This Court CONCLUDES that those portions of Delgadillo's claim fail as a matter of law, and Axt is entitled to summary judgment.
In addition to the limited evidence regarding Axt's alleged involvement in the denial of back-up cover, Plaintiffs have submitted testimony that Axt, inter alia:
—held Dowkin and Delgadillo "to the HPD's policies and practices and procedures to the letter," when he did not do so with other officers; [Pltfs.' Dowkin Depo. at 133, 146, 169; Pltfs.' Delgadillo Depo. at 92-96;]
—gave Dowkin "a less than deserved performance rating" in retaliation for filing discrimination complaints; [Pltfs.' Dowkin Depo. at 295;]
—pressured Delgadillo not to pursue a complaint that Fernandez gave Delgadillo an unjustified poor performance evaluation that Delgadillo believed was racially motivated; [Pltfs.' Delgadillo Depo. at 83-85, 87-91;] and
—threatened Delgadillo with a transfer to a less desirable district because it was easier to reassign Delgadillo than it was to reassign Tanaka and Fernandez [
In addition, Plaintiffs argue that Axt failed to discipline subordinates for making racist and sexist comments. [Axt IIED Opp. at 10.]
This district court has recognized that:
Even construing the record in the light most favorable to Plaintiffs, selective enforcement of HPD rules, policies, and procedures, unfavorable performance ratings, and allowing racist and sexist comments, are merely "insults, indignities, threats, annoyances, petty oppressions, or other trivialities" that do not rise to the level of outrageous conduct necessary to support an IIED claim.
Even assuming, arguendo, that any type of adverse employment action — not just termination — may constitute outrageous conduct "when an employer deliberately taunts an employee, or when an employer handles an employee with outrageous insensitivity," there is no evidence indicating that this occurred in connection with either the allegedly unjustified performance evaluations, the failure to process Delgadillo's complaint about the unjustified evaluation that he received from Fernandez, or the threatened transfers. Further, even viewing all of the alleged incidents as a whole, they do not constitute the type of outrageous conduct necessary to support an IIED claim.
This Court therefore FINDS that there are no genuine issues of material fact as to the portions of Dowkin and Delgadillo's IIED claims against Axt based on incidents beyond the denial of back-up cover. This Court CONCLUDES that those portions of their claims fail as a matter of law, and Axt is entitled to summary judgment.
As to all portions of Dowkin and Delgadillo's IIED claims against Axt, this Court FINDS that there are no genuine issues of material fact, and CONCLUDES that Axt is entitled to judgment as a matter of law. This Court therefore GRANTS the Axt IIED Motion.
In light of the foregoing analysis, this Court sua sponte reconsiders its ruling in the 5/1/15 Order that there are genuine issues of material fact regarding whether Tanaka failed to provide back-up cover to Dowkin in the April 6, 2008 incident. [5/1/15 Order at 40.] As with Axt, the only evidence in the record regarding Tanaka's alleged involvement in the April 6, 2008 incident is Dowkin's testimony that Tanaka was on duty at the time Dowkin conducted the traffic stop and the patrol officers failed to cover him after he requested it. [Pltfs.' Separate Concise Statement of Facts in Supp. of Pltfs.' Mem. in Opp. to Def. Sergeant Ralstan Tanaka's Motion for Partial Summary Judgment on the Fifth Cause of Action of the Third Amended Complaint (Intentional Infliction of Emotional Distress), filed 2/23/14 (dkt. no. 509), Exh. A (Excerpts of Trans. of 4/4/11 Depo. of Shermon Dowkin) at 254-55.] For the same reasons set forth supra Discussion Section I.B.2.a., this Court FINDS that there are no genuine issues of material fact regarding Tanaka's involvement in the April 6, 2008 incident, and CONCLUDES that Tanaka is entitled to judgment as a matter of law as to that portion of Dowkin's IIED claim. This Court GRANTS Tanaka summary judgment as to the portion of Dowkin's IIED claim against him based on the April 6, 2008 incident.
The Tanaka & Kashimoto Punitive Damages Motion first seeks summary judgment as to Delgadillo's request for punitive damages against Tanaka and as to Bennett Huihui's and Delgadillo's request for punitive damages against Kashimoto because those Plaintiffs have no remaining claims against them. In addition, now that this Court has granted summary judgment in favor of Tanaka as to the only remaining portion of Dowkin's IIED claim against him, Dowkin has no remaining claims against Tanaka.
Under both federal law and Hawai`i law, punitive damages are a remedy, not an independent cause of action.
The Tanaka & Kashimoto Punitive Damages Motion also seeks summary judgment as to the remaining claims against them: Bennett Huihui's IIED claim against Tanaka; and Dowkin's IIED claim against Kashimoto. Under Hawai`i law:
Some of the elements that would support an award of punitive damages, such as outrageous misconduct and willfulness or entire want of care, overlap with the elements required to establish an IIED claim.
The Tanaka & Kashimoto Punitive Damages Motion is DENIED as to Bennett Huihui's request for punitive damages against Tanaka and Dowkin's request for punitive damages against Kashimoto.
This Court has previously described the standards applicable to the issue of whether Plaintiffs exhausted their administrative remedies as to their § 378-2(3) claims in Count V.
As this Court noted in the 5/1/15 Order, there is no Haw. Rev. Stat. § 378-2(1) or (2) claim against the City, nor is there a § 378-2(3) claim against Kwon and/or Fernandez in any of Plaintiffs' charges of discrimination.
As it did in the 5/1/15 Order, this Court must consider the exceptions described in
As to the first, second, and fourth exceptions, this Court has ruled that the fact that Plaintiffs' Charges were not directed to an individual Defendant is not "dispositive because the form does not direct the charging party to identify
However, this Court's analysis of Plaintiffs' § 378-2(3) claims against Tanaka and Kashimoto differs because Plaintiffs' Charges expressly identify Kwon and Fernandez as perpetrators of the alleged discrimination and retaliation.
—Dowkin's November 10, 2008 Charge, which alleges race discrimination and retaliation, states that Kwon "made a racial comment about" him. [C. Tanaka § 378-2(3) Aff., Exh. A at 1.]
—Dowkin's December 2, 2008 Charge, which alleges retaliation, states that, since filing the November 10, 2008 Charge, he was subjected to retaliation, including an incident on November 13, 2008 when Kwon "appeared `accusatory' and `angry'" at Dowkin for arriving to work late, even though Dowkin "previously inform[ed] dispatch that [he] had to stop and assist a motorist on [his] way to work." [
—Delgadillo's November 10, 2008 Charge, which alleges race discrimination and retaliation, states his "supervisors and fellow officers routinely make derogatory racist and ethnic comments to" him, and his "fellow officers refused to cover [him] on dangerous traffic stops which involve arrests." [
—Delgadillo's May 14, 2009 Amended Charge, which alleges retaliation, identifies Fernandez as "one of the alleged harassers in the racial discrimination case." [
—Bennett Huihui's April 28, 2009 Charge, which alleges gender discrimination and retaliation, states that, on February 20, 2009, she filed a complaint against Fernandez, and others, stating that she was being retaliated against for giving testimony regarding Dowkin's race discrimination complaint. The alleged retaliation included being removed from the list of attendees for a recertification class after Fernandez saw her speaking to Dowkin on February 10, 2009. [
This Court therefore finds that the first
In addition, this Court has found that: "To the extent that Plaintiffs' Charges clearly alleged that specific individuals were involved in the discrimination and retaliation alleged in Plaintiffs' Charges, the [Hawai`i Civil Rights Commission ("HCRC")] anticipated and/or inferred that Plaintiffs were bringing state law claims against those individuals pursuant to § 378-2(3)." [5/1/15 Order at 34-35.] Thus, this Court finds that the HCRC anticipated and/or inferred that Plaintiffs were bringing § 378-2(3) claims against Kwon and Fernandez, and therefore the second and fourth
Kwon and Fernandez also argue that they are entitled to summary judgment as to Plaintiffs' § 378-2(3) claims because Plaintiffs have not presented any admissible evidence that Kwon and Fernandez "aided, abetted, incited, compelled, or coerced the doing of any alleged discriminatory practice of the City." [Mem. in Supp. of Kwon & Fernandez § 378-2(3) Motion at 14.]
Kwon and Fernandez emphasize that all of the counts in the Third Amended Complaint alleging that they "conspired or acted in concert with each other to discriminate or retaliate against Plaintiffs" have been dismissed.
Kwon and Fernandez are correct that a § 378-2(3) claim requires that there "be at least two persons (someone who incites, compels, or coerces, and some other person who is incited, compelled, or coerced)."
As noted previously, Plaintiffs have presented testimony that Fernandez ordered officers not to help the DUI team, [Pltfs.' Dowkin Depo. at 63-64,] and Kashimoto ensured that the order was carried out [Dowkin Aff. at ¶ 33]. Bennett Huihui has stated that "[l]ate in 2008, when Sergeant Fernandez and Officer Kashimoto gave their `no cover' order," she "was left alone with felony suspects or traffic stops, in the dark, on the most uninhabited beat in the district." [Pltfs.' Separate Concise Statement of Facts in Supp. of Pltfs.' Mem. in Opp. to Sergeant Wayne Fernandez's Motion for Partial Summary Judgment Against Cassandra Bennett Huihui on the Fifth Cause of Action in the Third Amended Complaint (Intentional Infliction of Emotional Distress), filed 5/4/15 (dkt. no. 618), Aff. of Cassandra Bennett Huihui at ¶ 4.h.] Plaintiffs have also presented testimony that Delgadillo believed that Fernandez's poor evaluation of Delgadillo's performance at the end of 2007 was racially motivated, and he brought that concern to Kwon and Axt. [Pltfs.' Delgadillo Depo. at 83-85, 88-91.] Delgadillo testified that they pressured him not to pursue the complaint and told him: "Don't start a war with Fernandez, just let it go." [
Based on this Court's prior orders and its ruling on the Kwon & Fernandez § 378-2(3) Motion, Count III is the only remaining claim against Kwon and Fernandez. This Court finds that there are genuine issues of material fact as to whether Kwon and Fernandez were involved the alleged practice of denying back-up cover to Plaintiffs for discriminatory and/or retaliatory reasons. This Court also finds that, if Plaintiffs prove these allegations, a reasonable jury could find that the evidence also supports an award of punitive damages.
This Court therefore FINDS that there are genuine issues of material fact which preclude summary judgment as to Plaintiffs' request for punitive damages against Kwon and Fernandez, and this Court DENIES the Kwon & Fernandez Punitive Damages Motion.
On the basis of the foregoing, this Court rules as follows:
—Axt's Motion for Partial Summary Judgment Against Plaintiff Sergeant Shermon Dean Dowkin on the Fifth Cause of Action of the Third Amended Complaint (Intentional Infliction of Emotional Distress), filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY GRANTED;
—Tanaka and Kashimoto's Motion for Summary Judgment Regarding Punitive Damages and Any Other Outstanding Claims, filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY GRANTED IN PART AND DENIED IN PART;
—Kwon and Fernandez's Motion for Partial Summary Judgment Against All Plaintiffs on the Third Cause of Action in the Third Amended Complaint (Violations of the Hawaii Civil Rights Law — HRS Section 378-2(3)), filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY DENIED; and
—Kwon and Fernandez's Motion for Summary Judgment as to Punitive Damages, filed April 15, 2015, and the City's joinder thereto, filed April 21, 2015, are HEREBY DENIED.
In particular, the Tanaka & Kashimoto Punitive Damages Motion is GRANTED as to: Dowkin's request for punitive damages against Tanaka; Delgadillo's request for punitive damages against Tanaka and Kashimoto; and Bennett Huihui's request for punitive damages against Kashimoto. The motion is DENIED as to: Bennett Huihui's request for punitive damages against Tanaka; and Dowkin's request for punitive damages against Kashimoto.
In addition, this Court sua sponte reconsiders the portion of its May 1, 2015 order addressing four previous defense motions for summary judgment, [dkt. no. 615,] that denied Tanaka's motion for summary judgment as to the portion of Count V alleging an intentional infliction of emotional distress claim by Dowkin against Tanaka based on the alleged denial of back-up cover on April 6, 2008. This Court HEREBY GRANTS summary judgment in favor of Tanaka as to that portion of Count V.
Lastly, the Court summarizes the remaining claims in this matter:
—Count I, race and gender discrimination, in violation of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C. § 2000e-2, et seq., by all Plaintiffs against the City;
—Count II, race discrimination, in violation of Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d, et seq., by Dowkin and Delgadillo against the City;
—Count III, violations of Haw. Rev. Stat. § 378-2(1) and (2) by all Plaintiffs against the City, and violations of § 378-2(3) by all Plaintiffs against Fernandez and Kwon; and
—Count V, intentional infliction of emotional distress by Dowkin against Kashimoto as to the October 11, 2010 incident, and by Bennett Huihui against Tanaka as to the October 18, 2010 Porky's Incident.
IT IS SO ORDERED.
130 Hawai`i at 329, 310 P.3d at 1030.
