431 P.3d 236 (Hawai’i App. 2018), CAAP-16-0000192, Begley v. County of Kaua‘i

Docket Nº:CAAP-16-0000192
Citation:431 P.3d 236, 143 Hawai‘i 333
Party Name:Mark N. BEGLEY, Plaintiff-Appellant/Cross-Appellee, v. COUNTY OF KAUA‘I; Department of Personnel Services, County of Kaua‘i; Thomas T. Takatsuki, individually, and in his official capacity as Acting Director of Personnel Services; Department of Human Resources, County of Kaua‘i; Janine M.Z. Rapozo, individually, and in her official capacity as ...
Attorney:Lyle S. Hosoda, Kevin T. Morikone (Hosoda & Morikone), for Plaintiff-Appellant/ Cross-Appellee. Adam P. Roversi, Office of the County Attorney, for Defendant-Appellee/ Cross-Appellant.
Judge Panel:By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.
Case Date:November 30, 2018
Court:Court of Appeals of Hawai'i, Intermediate
 
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Page 236

431 P.3d 236 (Hawai’i App. 2018)

143 Hawai‘i 333

Mark N. BEGLEY, Plaintiff-Appellant/Cross-Appellee,

v.

COUNTY OF KAUA‘I; Department of Personnel Services, County of Kaua‘i; Thomas T. Takatsuki, individually, and in his official capacity as Acting Director of Personnel Services; Department of Human Resources, County of Kaua‘i; Janine M.Z. Rapozo, individually, and in her official capacity as Director of Human Resources, and Does 1-50, Defendants-Appellees/Cross-Appellants

No. CAAP-16-0000192

Intermediate Court of Appeals of Hawai‘i

November 30, 2018

Editorial Note:

This decision has been designated as "Unpublished disposition." in the Pacific Reporter. See HI R RAP RULE 35

APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT (CIVIL NO. 15-1-0085).

On the briefs:

Lyle S. Hosoda, Kevin T. Morikone (Hosoda & Morikone), for Plaintiff-Appellant/ Cross-Appellee.

Adam P. Roversi, Office of the County Attorney, for Defendant-Appellee/ Cross-Appellant.

By: Fujise, Presiding Judge, Leonard and Reifurth, JJ.

MEMORANDUM OPINION

I.

Plaintiff-Appellant/Cross-Appellee Mark N. Begley (Begley), appeals from the February 18, 2016 Final Judgment Against Plaintiff (Final Judgment) entered by the Circuit Court of the Fifth Circuit1 (Circuit Court).

Defendant-Appellee/Cross-Appellant County of Kaua‘i; Department of Human Resources, County of Kaua‘i; Thomas T. Takatsuki, Acting Director of Personnel Services, County of Kaua’i; and Janine Rapozo, Director of Human Resources, County of Kaua‘i in their individual and official capacities, (collectively, County) cross-appeal from the Final Judgment.

II.

A. Factual Background

Begley is employed by the Kaua‘i Police Department (KPD) as Assistant Chief.2 After he reported improper workplace conduct, he experienced retaliation at his workplace, which caused him mental stress. Begley’s workers’ compensation claim for mental stress was accepted by the County without contest.3

During the course of Begley’s treatment and medical leave, a dispute arose regarding whether certain conditions Begley’s treating psychiatrist placed on his return to work were permanent or temporary. Based on her response, the County took the position that Begley was permanently unable to return to his previous position at the KPD and informed Begley that it wanted him to participate in the County’s Return to Work Program (RTWP).

The policy of the RTWP is "to encourage injured workers to return to work following a job-related injury or illness as soon as authorized by a health care provider." To this end, "[e]mployees who are injured due to a work related injury or illness may be provided temporary light duty job assignments and shall be provided a priority of placement in other jobs when they are unable to permanently return to their usual and customary work. "Priority Placement" is defined in the RTWP as "a job placement process for those employees who are medically determined to be unable to permanently return to perform their essential functions of their job because of a work related injury or illness."

The RTWP also cites a number of provisions within the "Workers’ Compensation Law," Hawai‘i Revised Statutes (HRS) Chapter 386, including HRS § 386-142, pertaining to the employment rights of injured employees. The RTWP provides for participation by employees with permanent work restrictions where "[t]he employee has been released by an appropriate physician to return to alternate work and the physician has determined that the employee is permanently unable to perform any/all of the essential functions of the employee’s regular pre-injury position." The placement procedure section also outlines the "Departmental Meeting" and "Notification" that is required for placement of employees with permanent work restrictions.

The RTWP specifies when termination of a county employee disabled by a work injury is appropriate. This includes when the employee fails to attend the required departmental meeting, does not timely notify the departmental personnel representative of his decision to participate in priority placement, refuses an offer of employment, refuses or fails to attend a scheduled job placement meeting, fails to report for work for the assigned position, cannot be placed within the county by the end of their eligibility period in the priority placement procedure, or the County is unable to place the employee in another position.

Begley initially refused to participate in RTWP meetings, but on February 19, 2015, Begley, Begley’s counsel, and a Human Resources specialist from the County’s Department of Human Resources, met to discuss Begley’s employment with the County under the RTWP. Begley was required by the County to inform them of his decision to participate in the RTWP but he failed to do so. On February 2, 2016, apparently because he did not inform them of his decision, Begley was sent a termination notice, but the termination notice was subsequently retracted. As of October 6, 2016, Begley remained on leave and continued to receive treatment; he had yet to participate any further in the RTWP.

B. Procedural Background

Begley claims he is being "forced" into the RTWP. As a result, he filed his June 16, 2015 Complaint (Complaint) in Circuit Court, in which he alleged and requested the following: Count I: Preliminary4 and permanent "Injunctive Relief" "preventing [the County] from forcing [Begley] into the RTWP and/or taking action to terminate [Begley’s] employment."5

Count II: "Declaratory Relief" declaring that:

(1) Begley is not "permanently disabled; "

(2) The County’s acts of forcing Begley into the RTWP is unsupported and improper; 6

(3) "Plaintiff is fully capable of returning to his usual and customary work, provided that Defendants ensure a safe working environment for Plaintiff; "

(4) "the RTWP was unconstitutionally adopted; "7

(5) the RTWP is unconstitutional because it does not provide for adequate due process; 8 and

(6) Begley’s due process and equal protection rights were violated when the County forced him into the RTWP and failed to reconsider its decision.9

Count III: Damages and injunctive relief for "Violation of 42 U.S.C. § 1983."10

Count IV: Damages for "Intentional Infliction of Emotional Distress" for willfully and/ or wantonly deciding to force Begley into the RTWP.

Count V: Damages for "Aiding and Abetting" for, with knowledge of improper and illegal conduct taken against Begley, helping, and/or encouraging such conduct.

Count VI: Damages for "Civil Conspiracy" for agreeing, approving and/or otherwise engaging in unlawful activities to achieve a common goal.

Count VII: Damages for "Concert of Action" for engaging in tortious and/or wrongful activity pursuant to a common design.

"[County’s] Motion to Dismiss Complaint filed on June 16, 2015" (Motion to Dismiss) was filed on September 21, 2015. At the hearing on the Motion to Dismiss, County argued that the claims for injunctive and declaratory relief "are outside of this Court’s jurisdiction because of the exhaustion doctrine[,]" and that while the Circuit Court has jurisdiction over the tort claims, the doctrine of primary jurisdiction required that the Circuit Court "defer any decisions on those tort claims ... pending proper agency determination[.]" The Circuit Court granted the Motion to Dismiss as to all counts based on the doctrine of primary jurisdiction. On February 18, 2016, the Circuit Court entered the Final Judgment, from which both Begley and the County timely appeal.11

III.

DISCUSSION

A. The Department of Labor and Industrial Relations has exclusive original jurisdiction in this case; thus, Counts I and II of the Complaint should have been dismissed based upon the doctrine of exhaustion.

The Circuit Court dismissed all claims in Begley’s Complaint, concluding that it should defer to the Director of the Department of Labor and Industrial Relations of the State of Hawai‘i (Director & DLIR), which has "specialized knowledge regarding these types of matters," based on the primary jurisdiction doctrine. The County asserts that the Director has exclusive original jurisdiction, not primary jurisdiction, over Counts I and II, but agrees that the Director has primary jurisdiction over the remaining counts in the Complaint. Begley asserts that the Circuit Court has exclusive original jurisdiction as to all claims in the Complaint. "The existence of jurisdiction is a question of law that we review de novo under the right/wrong standard." Lingle v. Hawaii Gov’t Emps. Ass’n, 107 Hawai’i 178, 182, 111 P.3d 587, 591 (2005) (citation omitted). "Courts have developed two principal doctrines to enable...

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