Bator v. State of Hawaii, 92-15950

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtPOOLE
Citation39 F.3d 1021
Parties66 Fair Empl.Prac.Cas. (BNA) 290, 65 Empl. Prac. Dec. P 43,347 Susan A. BATOR, Plaintiff-Appellee, v. STATE OF HAWAII, Defendant, and Carolyn M. KAINUMA, in her individual capacity; Warren T. Asaeda, in his individual capacity, Defendants-Appellants.
Docket NumberNo. 92-15950,92-15950
Decision Date08 November 1994

Page 1021

39 F.3d 1021
66 Fair Empl.Prac.Cas. (BNA) 290,
65 Empl. Prac. Dec. P 43,347
Susan A. BATOR, Plaintiff-Appellee,
Carolyn M. KAINUMA, in her individual capacity; Warren T.
Asaeda, in his individual capacity, Defendants-Appellants.
No. 92-15950.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted Nov. 5, 1993.
Decided Nov. 8, 1994.

Page 1023

Steven S. Michaels, Atty. General's Office, Honolulu, HI, for defendants-appellants.

John A. Chanin, Honolulu, HI, for plaintiff-appellee.

Appeal from the United States District Court for the District of Hawaii.

Before: POOLE, WIGGINS, and T.G. NELSON, Circuit Judges.

POOLE, Circuit Judge:

Carolyn Kainuma, a supervisor in the Adult Probation Division of the First Circuit Court of the state of Hawaii, and Warren Asaeda, a probation officer, appeal the district court's denial of their summary judgment motion asserting qualified immunity from suit as to the 42 U.S.C. Sec. 1983 claims raised in Susan Bator's action against them. Bator claimed that she suffered racial and sexual harassment when Asaeda assaulted her on several occasions and when Kainuma failed to investigate her complaints regarding these attacks and other harassment. She also alleged that she was denied promotions and given more work because of her race and gender. 1

We have jurisdiction to review the district court's summary judgment denying qualified immunity, and we review that denial de novo. Act Up!/ Portland v. Bagley, 988 F.2d 868, 870-71 (9th Cir.1993). We affirm.


Susan Bator, a white female, moved to Hawaii in 1979 at the age of 23 after working for several years as a court reporter in the Pennsylvania state legislature. She worked as a secretary for about a year and a half, and in December 1981, she began work as a clerk stenographer at the Adult Probation Division of the First Circuit Court of the state of Hawaii. After she completed a six-month probationary period, she became a permanent employee.

Bator left her job in 1988. In May 1991, she filed this action, claiming that she had experienced sexual harassment and racial discrimination during her tenure at the Probation Division.

According to Bator, her problems started in 1982, when Glennard Fong, a married man and a presentence investigation supervisor,

Page 1024

asked Bator to be his date at a "water skiing/bikini party" that he was holding. Bator's direct supervisor, Carolyn Asato, told Bator that she wanted her to go with Fong and that Bator could have the day off because the party was being held on a work day. Bator refused to go. "Immediately" after her refusal, Alvin de la Cruz, a probation officer, told Bator that "[m]aybe we should fire you" for refusing to go with Fong.

Thereafter, Bator asserts, she was continually harassed:

I was increasingly ostracized, harassed, sexually harassed, repeatedly hit on sexual parts of my body, called racist names, picked on, made fun of, criticized ..., and I was treated differently at work by my clerical supervisor and by the other employees of Japanese ancestry, and to a lesser extent by all of the other ... employees.... Starting in 1987 until I left the office for the last time in April of 1988, employees in the office, both male and female, would intentionally physically hit me against my wishes by hitting me on sexual parts of my body, which included my breast area, my rearend area, and physically coming into contact with me on other parts of my body against my wishes. This physical contact was not accidental, but it was intentional and was a source of amusement for the employees who were doing the sexual harassment.

In her affidavit, Bator provided specific examples of physical and verbal abuse.

In April 1987, Zachary Higa, a coworker, hit Bator across her chest at work in the presence of nine other male employees, including a supervisor. The male employees laughed and encouraged Higa, who never apologized. In June 1987, Glenn Komiyama, a senior probation officer, struck Bator's buttocks with his chair as she tried to walk by his desk. He did not apologize. During 1987, Bator states that she was hit or struck repeatedly by three coworkers, one of whom was Warren Asaeda.

Bator complained about these incidents to Asato, her supervisor, and later to Asato's replacement, Carolyn Kainuma. Bator also notified three other employees: another stenographer, a branch administrator, and a senior probation officer. When Bator complained to Kainuma, Kainuma often acted irritated. On one occasion, Kainuma stood up from her desk and "rammed" into Bator. No investigations into the harassment were conducted by Kainuma or any other person in the Probation Division.

Between 1987 and April 1988, Bator reported to Kainuma that Asaeda was becoming more hostile and abusive. By February and March 1988, her coworkers' verbal abuse of her also had escalated. 2

According to Bator, on April 29, 1988, while she was standing at a Xerox machine, "Asaeda struck me from behind with a legal folder which he rammed up into my vaginal and my rectal areas from behind me." Bator reported the episode to Kainuma and later that day, Bator and Kainuma met with the acting branch administrator, Nathanial Kim, to discuss the incident. Bator left the office that day and never returned to her job.

Bator sought medical treatment and was diagnosed as having a mild contusion to the perianal area with a secondary psychogenic reaction. She filed a workers' compensation claim with the state Labor and Industrial Relations Board, which, on appeal, characterized the sole issue as whether Bator sustained

Page 1025

an injury arising in the course of her employment. The Board found that Asaeda had bumped Bator unintentionally with his elbow and that Bator suffered a work injury compensable under the workers' compensation statute.

In addition to her claims that she suffered physical and verbal abuse at the hands of her coworkers, Bator asserted that she was denied promotions because of her race and gender, and gave examples of nonwhites who were promoted. She also provided evidence that she was given more work than other nonwhite clerical workers. Finally, Bator provided evidence that other white women complained of discrimination. Michelle Wentzell, a senior probation officer, filed a complaint charging discrimination and harassment with the Hawaii Department of Labor and Industrial Relations. 3 A former probation officer, Christine Gambles, testified at a deposition that she had experienced discrimination on the job: "[i]t just seemed obvious to me that the Japanese men were hired first and after that it was the Japanese women and then it was other local people.... It was just so obvious." 4

The defendants responded to Bator's evidence by alleging that Bator acted strange at work, communicated primarily by typewritten notes rather than orally, walked around with her head down, rarely made eye contact with others, daydreamed, procrastinated, didn't do her share of work, required constant supervision, sometimes wore inappropriate outfits and heavy makeup, and stacked files on her desk to create a wall around herself. She received some negative performance appraisals. 5 According to the defendants, the hall where the copy machine is located is narrow and crowded, and there is a certain amount of bumping.

The defendants also proffered evidence that Bator had psychiatric problems. In August 1988, a board-certified psychiatrist and neurologist, Dr. Byron Eliashof, diagnosed her as having an "Axis I ... Delusional (Paranoid) Disorder with Persecutory and Somatic Features" and an Axis II "pre-existing Schizotypal Personality Disorder" which culminated in "a major psychiatric disorder beginning [in] 1984." The psychiatric report discussed Bator's sometimes bizarre behavior and her difficulties with her coworkers, landlord, and family. Dr. Eliashof also opined that the "redness and irritation in her rectal and vaginal area, which was noted on examination, could not be mechanically caused by a file folder, particularly with regard to the type of slacks she was wearing."

The district court determined that, when it viewed the evidence in the light most favorable to Bator, there were "genuine issues of material fact ... as to whether Kainuma and Asaeda may have violated Bator's clearly established constitutional right to be free of sexual and racial discrimination." Accordingly, the district court denied Kainuma's and Asaeda's motion for qualified immunity. Kainuma and Asaeda have timely appealed.


The defendants first contend that because Bator's claims of harassment are implausible, the district court should have required Bator to offer more evidence to defeat their summary judgment motion. The implausibility of her claims is shown, they argue, by Dr. Eliashof's diagnosis that she is paranoid and by his opinion that the symptoms she felt could not have been caused by a file folder.

Summary judgment is appropriate if, when the evidence is viewed in the light most favorable to the nonmoving party, there are

Page 1026

no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Banks v. Bethlehem Steel Corp., 870 F.2d 1438, 1441 (9th Cir.1989). Although the moving party must demonstrate the absence of a genuine issue of fact for trial, the nonmoving party may not rest on allegations in her pleadings but must set forth specific facts showing that there is a genuine issue for trial. T.W. Elec. Serv. v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 629-30 (9th Cir.1987).

Moreover, if the factual context makes the nonmoving party's claim implausible, then that party "must come forward with more persuasive evidence than would otherwise be necessary to show that there is a genuine issue for trial." California Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir.1987) (citing...

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