Citation276 F.3d 1091
Decision Date20 February 2002
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Richard Rand, Honolulu, Hawaii, for the defendant-appellee/ appellant.

Appeal from the United States District Court for the District of Hawaii Susan Oki Mollway, District Judge, Presiding D.C. No. CV-98-00184-SOM

Before: Betty B. Fletcher, William C. Canby, Jr., and Richard A. Paez, Circuit Judges.

Betty B. Fletcher, Circuit Judge

Plaintiff-appellant B.K.B. raises two issues on appeal: (1) whether appellant sufficiently exhausted administrative remedies on her statutory employment discrimination claims and (2) whether the trial court abused its discretion in failing to grant a mistrial where serious violations of Rule 412 of the Federal Rules of Evidence occurred. The Maui Police Department ("the Department") and the County of Maui ("the County") offered defense testimony, which the district court admitted, relating to appellant's sexual practices and history. We agree with the appellant that the testimony should not have been admitted and was highly prejudicial. The County cross-appeals the district court's award of sanctions as an abuse of discretion. We affirm the court's imposition of sanctions. We also hold that Plaintiff's statutory claims of sexual harassment should not have been dismissed pre-trial. Accordingly, we reverse and remand for a new trial.

A. Plaintiff's filing of discrimination charges

Plaintiff, a 49-year old white female police officer, awoke one morning in April 1997 with heavy bleeding and subsequently collapsed while responding to a radio call in the course of her duties working at the Lahaina station of the Maui Police Department. Two years prior, Plaintiff had been diagnosed with a low platelet disorder called idiopathic thrombocytopenia purpura ("ITP") and as a result had been assigned to "light" duty, including a primary assignment to reorganize and maintain the Department's long-neglected evidence room. Plaintiff's collapse followed an altercation with her supervisor, Sergeant Kenneth Kikuchi, with whom her relationship had so deteriorated that she felt unable to request relief from the call. Plaintiff was subsequently ordered by Captain Robert Tam Ho to write a memorandum (known as a "to-from") detailing the stressors that had led to her collapse. In the to-from, Plaintiff claimed that subsequent to her assignment to the evidence room she had become the victim of repeated acts of harassment and discrimination. 1 That same week, on the captain's orders, Kikuchi was transferred to another shift; eventually, he was disciplined and left the police force.

In November 1997, Plaintiff filed a "Charge of Discrimination" with the Hawaii Civil Rights Commission ("HCRC"). This filing also triggered the administrative review process for her federal discrimination claims. Plaintiff checked boxes on the charge form and in the pre-complaint questionnaire indicating discrimination and harassment based on race, color, and sex. On the pre-complaint questionnaire, Plaintiff was asked to "include examples" of discrimination. She stated that "I am referred to as `Haole' and given the finger at work. I am `iced-out' by fellow officers and this continues."2 On the charge form, Plaintiff alleged that she was "being subjected to harassment because of my race (Caucasian) and in retaliation for my opposing the discriminatory harassment. " Plaintiff further specified that she had been verbally harassed by Sergeant Kikuchi, and thereby subjected to a hostile and intimidating work environment. In addition, she contended that after her memorandum to Captain Tam Ho, she was subjected to retaliation and further harassment.

The EEOC and HCRC issued Plaintiff a right-to-sue letter without investigating her claims. Plaintiff originally filed suit in state court, claiming federal and state violations of race and sex discrimination laws (including racial and sexual harassment), unlawful retaliation, violations of the state whistleblower statute, and infliction of emotional distress. Her action was later removed to federal court. Karl Sakamoto, an employee of the HCRC, filed a declaration with the district court stating that "Complainant's Right to Sue was intended to afford her a lawsuit involving harassment on the protected basis of race, color, and sex as indicated on the Pre-Complaint Questionnaire . . . and the [charge]." Nevertheless, the district court dismissed Plaintiff's federal and state statutory sexual harassment claims prior to trial, on the ground that she had waived them by failing to raise them adequately in her charge. The district court did permit her to proceed with a Hawaii common law sexual harassment claim, though such a claim had never been pleaded in Plaintiff's complaint.

B. The trial testimony and alleged violation of Rule 412

At trial, Plaintiff testified that pornographic magazines were displayed as "part of a normal routine" at the police station, along with pornographic films, and that occasionally she would be compared by the male officers to the pictures in the magazines or asked if she could perform the acts depicted in the films. Plaintiff also testified that during her police academy training, all of the recruits were taught about the "code of silence" that functioned as an unwritten department policy against speaking out against fellow officers.

Plaintiff further testified that Deputy Chief of Police Lanny Tihada had harassed her from the time she was a recruit and eventually raped her on three occasions. Plaintiff claimed that her first encounter with Tihada took place when she was a recruit in 1991; Tihada allegedly took her on a drive and propositioned her, saying that he "liked [her ] ass and [her] long blond hair." On the first occasion that Tihada allegedly raped Plaintiff in 1994, he came to her home and threatened her, warning that because he "owned" the department, and she was "just a fucking woman, no one will believe you and your career will be over." In December 1995, after being placed on light duty due to her ITP, Tihada allegedly announced in front of everyone, jokingly, that he didn't know how much longer he could hold off personnel, and that "unless you are able to do the job you were hired for, . . . you're going to be terminated." Tihada followed that threat with another visit to Plaintiff's home that evening, during which he allegedly forced himself on her again. Finally, in March 1996, after allegations from several women of sexual harassment against Tihada had appeared in the press,3 he allegedly appeared at Plaintiff's home and raped her yet again, this time in front of Plaintiff's daughter.

Plaintiff also testified that following her submission of the to-from in April 1997, her fellow officers and supervisors began to retaliate against her for breaking the code of silence. In addition to being called a "fucking haole, " Plaintiff testified that sergeants and officers would call her"Sylos" or "Kidnay sister," referring to other officers who had filed discrimination claims against the Department. Plaintiff was also repeatedly given the finger, called a "fucking cunt" or "fucking bitch," "clicked" (i.e., insulted by other officers who would click their transmitters when she came on the police radio), and iced out. This behavior continued and even escalated after an internal affairs investigation was begun in June 1997. Plaintiff estimated that she was subjected to racial remarks on a daily basis, and to sexual comments an average of two out of three days.4 Finally, and perhaps most disturbingly, Plaintiff testified that on at least three occasions, she failed to receive backup in response to emergency calls.5 Eventually, in October 1997, Plaintiff suffered another collapse, resulting in her leaving work for good.

In defense, the County presented its own psychologist who testified that Plaintiff was faking most of her symptoms, which were largely due to stress from her medical and financial problems, and that she exhibited a histrionic personality. With respect to Tihada, the defense attempted to discredit Plaintiff's testimony by showing that inconsistencies in her own purported conduct impugned the credibility of her story. For example, Plaintiff never reported the alleged rapes at the time they happened, nor was she able to produce any friends who could testify that she had confided in them about the alleged incidents. Tihada himself testified that he had sex with Plaintiff on two occasions, but that these encounters had been consensual and at her initiation. Officer Rocky Lassiter corroborated Tihada's account of how on one occasion Plaintiff handed him her phone number at a party and asked him to call her. The defense also pointed to testimony from other witnesses that Plaintiff found Tihada to be very good-looking, popular, and powerful, and that she was flattered by his attention.

On the penultimate day of trial testimony, the County presented Officer Jamie Becraft as a witness. Becraft initially testified that he and Plaintiff were close friends and that he had helped her in numerous ways during her bout with ITP while on the police force. However, Becraft further testified that, following a get-well party at Plaintiff's house, he and a fellow officer, Micah Adams, found themselves too drunk to drive and decided to spend the night. Becraft testified that, after everyone else had left the party, he, Adams, and Plaintiff were alone in the living room. Defense counsel then asked whether "anything unusual happened that night." At...

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