Black v. City & County of Honolulu
| Decision Date | 01 September 2000 |
| Docket Number | No. 98-00259DAE.,No. CIV. 97-01086SPK.,CIV. 97-01086SPK.,98-00259DAE. |
| Citation | 112 F.Supp.2d 1041 |
| Court | Hawaii Supreme Court |
| Parties | Sharon BLACK, Plaintiff, v. CITY & COUNTY OF HONOLULU; Michael Nakamura; Joseph B. Aveiro, Jr.; Rafael Fajardo; and Doe Defendants 1-20, Defendants. |
On August 4, 2000, the following motions came on for hearing: (1) Defendant City & County of Honolulu's motion for partial dismissal; (2) Plaintiff's motion for partial summary judgment; (3) Defendant Michael Nakamura's countermotion for partial summary judgment; (4) Defendant Rafael Fajardo's motion for partial summary judgment. On August 8, 2000, this Court issued an order denying Defendant City & County of Honolulu's motion; denying Plaintiff's motion; granting in part and denying in part Defendant Nakamura's motion; and denying Defendant Fajardo's motion. In this memorandum, the Court explains the reasoning for its Order.
Plaintiff Sharon Black ("Black") is the coordinator of Project Outreach, a community-based program sponsored by the Honolulu Police Department ("HPD") that provides assistance for the homeless, families in crisis, disabled individuals, and victims of domestic violence. In 1992, then Police Chief Michael Nakamura ("Nakamura") assigned full responsibility for Project Outreach to then Assistant Chief Joseph Aveiro ("Aveiro"). Black reported directly to Aveiro. Also within Aveiro's chain of command was Major Rafael Fajardo ("Fajardo").
It is undisputed that Aveiro and Black engaged in sexual relations while she was under his supervision. Aveiro claims that their relationship was consensual. Black adamantly maintains that she involuntarily submitted to his sexual advances.
Her account of their first sexual experience hews close to the prototype of sexual harassment. In July 1992, Aveiro paid Black an unannounced visit to her apartment. Shocked that he had come, Black allowed him in and excused herself to the bathroom to decide how to handle the situation. When she came out, Aveiro was laying on her bed, stripped down to his underwear, and stroking his penis. He told her to come over to him and she complied. They then had sexual intercourse. From 1992 to 1996, they had sexual intercourse three more times. In addition, according to Black, Aveiro frequently made sexual advances toward her, referred to women in sexually derogatory terms, and described his anatomy and sexual exploits in graphic detail. In short, Black claims she was a victim of sexual harassment.1
Black alleges that she submitted to Aveiro's advances and initially kept quiet about his conduct because he led her to believe that he controlled the fate of Project Outreach. She thought her job was dependent on compliance with his demands and tolerance of his abusive behavior.
Between 1993 and 1996, Black formally requested to be transferred from Aveiro's chain of command. The HPD denied her requests. Three episodes of retaliation allegedly followed the transfer requests. First, Fajardo ordered an officer to issue to Black a counseling memo accusing her of grabbing Aveiro in a police station elevator. There turned out to be no incident of such kind. Second, Aveiro filed a complaint with the HPD's Internal Affairs department ("IA"), claiming that Black had solicited donations on the HPD's behalf without his permission. The complaint was based on an erroneous news story; in fact, the donations were for a volunteer project. The reporter of the story later informed the HPD of the error. Nevertheless, the complaint was investigated and presented to the Administrative Review Board ("ARB") for hearing and decision. Aveiro sat on the ARB and refused to recuse himself from ruling on the matter. The complaint was dismissed for lack of evidence. Third, Fajardo issued a counseling memo to Black for failure to maintain a clean office. Black claims the memo was undeserved.
In March 1996, Black told Captain Michael Nakagawa ("Nakagawa") about the July 1992 incident in which Aveiro visited her apartment. Nakagawa asked Black whether she wished to file a complaint. She declined, and Nakagawa took no further action.
On April 12, 1996, Johnny Papa ("Papa"), a friend and confidante of Black, sought assistance from Lieutenant Kathy Payne ("Payne") in ending a high ranking officer's harassment of an unnamed HPD employee. Payne in turn advised her supervisor, Captain Kenneth Tano ("Tano"), about her conversation with Papa. Black later contacted Payne and identified herself as the victim and Aveiro as the perpetrator. On April 23, 1996, Black filed a complaint of sexual harassment with the HPD. Black transferred to the command of Major Henry Lau ("Lau") that same day.
According to Black, numerous incidents of retaliation followed the filing of the complaint. She alleges that she received threatening notes and phone calls, including calls from Aveiro's sister; that she was the subject of "Operation Foxtrot," a twenty-four hour surveillance operation lasting approximately one week; that the HPD placed a wire trap on her pager; that false complaints from clients were filed against her; that her personnel file was tampered with; that she was isolated from male officers; that she was placed on administrative leave without pay for several weeks; that a police officer criticized her in front of a training academy class; and that the HPD released the confidential IA report on her complaint to the media.
Black also faults Nakamura with interfering with the investigation of her complaint. Procedural irregularities allegedly pervaded the investigation. However, the details of these allegations are not relevant to the disposition of the motions that were presently before the Court.
Aveiro received no discipline from the HPD. He retired in December 1996.
Black filed the instant lawsuit on August 20, 1997, and a First Amended Complaint on March 21, 2000. The complaint named Nakamura, Aveiro, Fajardo, and the City & County of Honolulu ("City"), among others, as defendants.2 The first amended complaint asserts twenty-one counts: (1) battery; (2) assault; (3) sexual harassment: quid pro quo; (4) hostile work environment; (5) retaliation; (6) denial of employment opportunities; (7) civil rights violation (§ 1983); (8) conspiracy to interfere with civil rights (§ 1985(3)); (9) intentional infliction of emotional distress ("IIED"); (10) negligent infliction of emotional distress ("NIED"); (11) negligent retention; (12) negligent supervision; (13) negligent training; (14) invasion of privacy; (15) negligence to prevent discrimination (§ 1986); (16) aiding and abetting discriminatory practices; (17) failure to remedy sexual harassment; (18) special and general damages; (19) punitive damages; (20) declaratory relief; (21) injunctive relief.
Before the Court were four motions: (1) the City's motion for partial dismissal; (2) Black's motion for partial summary judgment; (3) Nakamura's countermotion for partial summary judgment; and (4) Fajardo's motion for partial summary judgment. On August 8, 2000, this Court entered an Order denying all motions except for Nakamura's motion, which was granted in part and denied in part.
Before proceeding to the merits of the City's motion for partial dismissal, the Court considered the threshold question of whether the motion was timely. A motion to dismiss made pursuant to Rule 12(b)(6) must be filed before the answer or other responsive pleading is filed. See Fed. R.Civ.P. 12(b); see also Aetna Life Ins. Co. v. Alla Med. Servs., Inc., 855 F.2d 1470, 1474 (9th Cir.1988). The City filed the instant motion after it had already filed its answer.3 Cognizant of its mistake, the City requested that its motion be construed as one for judgment on the pleadings. Rule 12(c) provides that any party may move for judgment on the pleadings after the close of pleadings. See Fed. R.Civ.P. 12(c). The Court therefore construed the City's motion as a Rule 12(c) motion. The standard for deciding a Rule 12(b)(6) motion is identical to that applicable to a Rule 12(c) motion. See Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 644 (2d Cir.1998); Edwards v. City of Goldsboro, 178 F.3d 231, 243 (4th Cir. 1999).
The City sought dismissal of all negligence-based claims in this action, namely Count 10 (NIED), Count 11 (negligent retention), Count 12 (negligent supervision), Count 13 (negligent training), Count 15 (negligence to prevent discrimination), and Count 17 (failure to prevent sexual harassment). The gravamen of the City's motion was that the exclusivity provision of Hawaii's workers' compensation statute, Hawaii Revised Statutes ("HRS") § 386-5, bars all work-related actions that sound in negligence.4
HRS § 386-5 reads:
The rights and remedies herein granted [in the workers' compensation statute] to an employee or the employee's dependents on account of a work injury suffered by the employee shall exclude all other liability of the employer to the employee ... on account of the injury, except for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto, in which case a civil action may also be brought.
Haw.Rev.Stat. § 386-5. The plain language of § 386-5 states an exception for sexual...
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