Begley v. Cnty. of Kauai
| Decision Date | 11 April 2019 |
| Docket Number | CIVIL 16-00350 LEK-RLP |
| Parties | MARK N. BEGLEY, Plaintiff, v. COUNTY OF KAUAI, KAUAI POLICE DEPARTMENT, DARRYL PERRY, ROY ASHER, MICHAEL CONTRADES AND DOE DEFENDANTS 16-100, Defendants. |
| Court | U.S. District Court — District of Hawaii |
On June 20, 2018, Defendant Darryl Perry ("Perry"), in his individual capacity, filed his Motion for Summary Judgment ("Perry Motion"). [Dkt. no. 311.] On June 27, 2018, Defendants County of Kauai ("the County"); Kauai Police Department ("KPD"); Perry, in his official capacity; and Michael Contrades ("Contrades"), in his official capacity (collectively, "County Defendants"), filed a substantive joinder in the Perry Motion ("County Joinder").1 [Dkt. no. 323.] The Court finds these matters suitable for disposition without a hearing pursuant toRule LR7.2(d) of the Local Rules of Practice for the United States District Court for the District of Hawaii ("Local Rules"). On January 29, 2019, this Court issued an entering order informing the parties of its rulings on the Perry Motion and the County Joinder ("1/29/19 EO Ruling"). [Dkt. no. 451.]
The parties were subsequently granted leave to file supplemental memoranda. [EO, filed 2/7/19 (dkt. no. 468).] The County Defendants filed their supplemental memorandum ("County Defendants' Supplement") on February 14, 2019. [Dkt. no. 474.] On February 19, 2019, Perry, in his individual capacity, filed a joinder of simple agreement in the County Defendants' Supplement, and, on February 20, 2019, Contrades, in his individual capacity, filed his joinders of simple agreement (collectively "Supplement Joinders"). [Dkt. nos. 479, 481.] Plaintiff filed his response to the County Defendants' Supplement and the Supplement Joinders ("Plaintiff's Supplement") on February 21, 2019. [Dkt. no. 487.] On March 14, 2019, this Court issued an entering order informing the parties of its rulings on the issues addressed in the supplements ("3/14/19 EO Ruling"). [Dkt. no. 525.] The instant Order supersedes the 1/29/18 EO Ruling and the 3/14/19 EO Ruling. For the reasons set forth below, the Perry Motion is denied and the County Defendants' Joinder is granted in part and denied in part. Further, in light of Begley v. County of Kaua`i, et al., NO. CAAP-16-0000192, 2018 WL 6259318 (Hawai`i Ct. App. Nov. 30,2018) ("ICA Opinion"), the portions of Plaintiff's remaining state law claims based on acts related to the County's Return to Work Program ("RTWP") are stayed.
Plaintiff worked for KPD from 1989 to 1994, and then from March 1996 to the present. In January 2011, Plaintiff, who was a Deputy Chief at the time, became the Assistant Chief of the Administrative and Technical Bureau ("ATB"). [Pltf.'s counterstatement of facts in supp. of Pltf.'s opp. to Perry Motion ( ), filed 10/29/18 (dkt. no. 389), Aff. of Mark N. Begley (" ") at ¶ 2.] Plaintiff has been on stress leave, receiving workers' compensation benefits, since March 2012. [Id. at ¶ 14.]
Asher states that, sometime in January 2011, KPD Officer Darla Abbatiello expressed to him that she was interested in transferring to the vice section, but Asher points out that, pursuant to KPD policy, such requests had to be made in writing. The vice section is part of the Investigative Services Bureau ("ISB"), which Asher oversees. [Concise statement of facts in supp. of Asher Motion ("Asher CSOF"), filed 6/20/18 (dkt. no. 313), Decl. of Roy Asher ("Asher Decl.") at ¶¶ 2-3.] Asher therefore "made an 'x' with the index fingers of both hands and said, 'No, no, no.'" [Id. at ¶ 3.] At some point duringJanuary 2011, Plaintiff learned about this "inappropriate gesture" by Asher. [Pltf. Perry Aff. at ¶ 10.] Plaintiff states the incident occurred on January 13, 2011. [Id.]
Plaintiff spoke with Asher and confirmed that Asher "made the gesture and that he did not want Officer Abbatiello in his Bureau because of the prior complaint she had made against the County of Kauai." [Id.] On January 24, 2011, Plaintiff verbally informed Perry about the incident, and Perry said "Asher's behavior could get KPD sued for 'big bucks' and he said he would take care of it." [Id. at ¶ 11.]
On August 22, 2011, Plaintiff had a meeting with Officer Abbatiello, and they discussed the incident with Asher. Id. at ¶ 5 & Exh. Q (Pltf.'s notes of meeting); see also Perry's concise statement of facts in supp. of Perry Motion ("Perry CSOF"), filed 6/20/18 (dkt. no. 310), Decl. of Darryl Perry ("Perry Decl.") at ¶ 4 (), Exh. 1 (). Plaintiff's notes about his meeting with Officer Abbatiello are consistent with Asher's description of the incident. See Pltf. Perry Aff., Exh. Q; Asher Decl. at ¶ 3. On October 3, 2011 Plaintiff completed a report to Perry regarding Officer Abbatiello's incident with Asher. [Perry Decl., Exh. 1.]Officer Abbatiello submitted a County Policy Against Discrimination and Harassment Complaint Form, dated October 18, 2011, regarding the incident with Asher and two other incidents. [Suppl. Decl. of Clare E. Connors ( ), filed 11/13/18 (dkt. no. 416), Exh. EE.2] Officer Abbatiello's form and Plaintiff's oral and written reports about the incident will be referred to collectively as the "Abbatiello Complaint."
On October 10, 2011, Perry emailed Plaintiff and instructed him to hire an outside investigator to handle the Abbatiello Complaint. Plaintiff responded: "Ok, we will work on it." [Perry Decl. at ¶ 5; Suppl. decl. of Greg H. Takase re: Perry Motion ( ), filed 7/2/18 (dkt. no. 326), Exh. 2 (email string between Perry and Plaintiff).3] The Timeline Email states that, inter alia, on January 23, 2012, Perry "inquired with Captain Henry Barriga on the status of the investigator; pending, informed that Assistant Chief Begley is working on it" and, on January 26, 2012, Perry made an inquirywith Plaintiff and was informed that the "status was still pending." [Perry Decl., Exh. 1.] Perry states that Plaintiff's lack of response to the Timeline Email led Perry to believe "Plaintiff was still in the process of retaining an outside investigator." [Perry Decl. at ¶ 4.]
However, Plaintiff admits that, on November 15, 2011, he took steps to have G. Todd Withy, Esq., retained as the outside investigator to handle the Abbatiello Complaint. [Perry CSOF at ¶ 5; Pltf. Perry CSOF at ¶ 5 ( Perry's ¶ 5 is admitted).] Mr. Withy was retained on December 29, 2011 under a purchase order, and a retainer was paid on January 23, 2012. [Perry Decl. at ¶ 4.]
Plaintiff asserts the adverse actions taken against him for his involvement with the Abbatiello Complaint included Plaintiff's "removal from Defendant Perry's calendar and his removal on December 16, 2011, from the position of Acting Deputy Chief." [Mem. in opp. to Perry Motion ("Perry Opp."), filed 10/29/18 (dkt. no. 387), at 14 (some citations omitted) .]
Plaintiff wrote a memorandum, dated December 29, 2011, to Deputy County Attorney Marc Guyot regarding the AbbatielloComplaint and how Perry was handling the complaint ("12/29/11 Guyot Memo"). [Pltf. Perry Aff., Exh. U.]
On January 25, 2012, Officer Abbatiello submitted a complaint the Kauai Police Commission ("Commission") primarily addressing Assistant Chief Alejandre Quibilan's ("AC Quibilan") hostile conduct toward her, but also noting that she "lost trust in" Perry because of his handling of her 2011 complaint about Asher ("Abbatiello Commission Complaint"). [Suppl. Connors Decl., Exh. GG (Abbatiello Commission Complaint) at 5.]
On January 30, 2012, Perry sent an email to the Commission members that: noted Asher and AC Quibilan were placed on administrative leave pending the outcome of Officer Abbatiello's complaints; stated the County Mayor put Perry on notice that morning that the investigation was looking into Perry's involvement with the complaint against AC Quibilan; requested that the Commission approve Perry's request to be placed on administrative leave with pay; and stated Contrades would be the Acting Chief and Plaintiff would be the Acting Deputy Chief during Perry's leave. [Perry Decl. at ¶ 7 & Exh. 5.] Perry asked to be placed on administrative leave "to protect the integrity of the investigation and not to interfere with" it. [Perry Decl. at ¶ 7.]
On February 1, 2012, Contrades sent an email to all of KPD stating that he had been appointed Acting Chief and Plaintiffhad been appointed Acting Deputy Chief. However, Contrades stated, while he was in Virginia for training, Plaintiff would be Acting Chief. [Perry CSOF at ¶ 7; Pltf. Perry CSOF at ¶ 7 ( Perry's ¶ 7 is admitted).] The email also stated Contrades would be returning to the office on March 19, 2012. [Perry CSOF, Decl. of Greg H. Takase ("Takase Decl."), Exh. 6.]
Plaintiff contends the retaliation against him began soon after he verbally informed Perry on January 24, 2011 of Asher's "inappropriate gesture" to Officer Abbatiello. The alleged retaliation included the following actions and incidents relevant to the Perry Motion and the County Joinder.
On February 22, 2012, Contrades sent Plaintiff an email informing him that Perry was returning to work and instructing Plaintiff to ensure that Perry's weapon, badge, and identification card were returned to Perry. [Perry CSOF at ¶ 8; Pltf. Perry CSOF at ¶ 8 (...
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