Hale v. Hawaii Publications, Inc., Civ. No. 05-00709 ACK-BMK.
| Decision Date | 28 December 2006 |
| Docket Number | Civ. No. 05-00709 ACK-BMK. |
| Citation | 468 F.Supp.2d 1210 |
| Parties | Abigail Lehua HALE, Plaintiff, v. HAWAII PUBLICATIONS, INC., dba The Maui Bulletin; Morgan Migita, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Andre S. Wooten, Honolulu, HI, for Plaintiff.
Jeffrey S. Harris, Tamara M. Gerrard, Torkildson Katz Fonseca Jaffe Moore & Hetherington, Charles E. McKay, Randall L.K.M. Rosenberg, Garcia Rosenberg & McKay, Honolulu, HI, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTION FOR SUMMARY JUDGMENT
On November 7, 2005, Abigail Lehua Hale ("Plaintiff') filed a Complaint in this Court against Hawaii Publications, Inc., doing business as The Maui Bulletin (the "Maui Bulletin"), and Morgan Migita ("Migita") (collectively "Defendants"). Plaintiff alleges that Defendants sexually harassed her and retaliated against her in violation of Title VII, 42 U.S.C. § 1981, and the State of Hawaii Fair Employment Act. Finally, Plaintiff claims that Defendants intentionally inflicted emotional distress upon her and that they should be liable for punitive damages.
On December 22, 2005, the Maui Bulletin filed its Answer to Plaintiffs Complaint. Migita filed his Answer on January 24, 2006.
Plaintiff was dilatory in submitting her Rule 16 Scheduling Conference statement and her attorney failed to appear at the Rule 16 Scheduling Conference on February 6, 2006. Magistrate Judge Kurren (the "Magistrate") issued an Order to Show Cause as to why the case should not be dismissed and set a hearing for February 16, 2006. On February 14, 2006, Plaintiffs counsel sent a letter to Defendants apologizing for missing the Rule 16 Scheduling Conference, attributing his absence to a calendar error. On February 16, 2006, the parties appeared before the Magistrate and conducted the Rule 16 Scheduling Conference. No action was taken on the Order to Show Cause.
On June 15, 2006, the Maui Bulletin filed a Motion to Dismiss under Rule 37(d) & 41(b) or, in the alternative, to Compel Discovery Responses and Award Sanctions. Migita filed a Joinder to the Maui Bulletin's motion on June 19, 2006. Plaintiff filed an opposition to the motion on July 5, 2006. The Maui Bulletin filed a reply on July 10, 2006.
On July 21, 2006, the Magistrate held a hearing at which he granted in part and denied in part the Maui Bulletin's motion. The effect of the order, issued August 9, 2006, was to compel Plaintiff to produce her original datebook to the Maui Bulletin's counsel for inspection. The motion was denied in all other respects.
In the meantime, the Maui Bulletin also filed a Motion for Leave to File an Amended Answer to the Complaint. On September 6, 2006, the Magistrate granted the Maui Bulletin leave to file an amended answer without a hearing. On September 21, 2006, Plaintiff filed a Statement of Non-Opposition to the Maui Bulletin's Motion for Leave to File an Amended Answer. On September 26, 2006, Migita filed a Statement of No Position to the same motion. The Maui Bulletin filed its First Amended Answer on September 22, 2006.
On September 6, 2006, the same day that the Magistrate granted the Maui Bulletin leave to file an amended answer, the Maui Bulletin filed a Motion for Summary Judgment ("Motion"). Migita filed a Motion for Joinder to the Maui Bulletin's Motion ("Joinder") on September 8, 2006. A hearing was then scheduled for November 11, 2006.
Upon realizing that it had neglected to file a concise statement of facts along with the Motion, the Maui Bulletin requested a continuation of the hearing on October 13, 2006. That same day, the Court continued the hearing until December 4, 2006.
On October 14, 2006, the Maui Bulletin filed a Concise Statement in Support of its Motion ("Motion CSF"). It attached exhibits A-G to the Motion CSF.
Plaintiff filed a Memorandum in Opposition to the Maui Bulletin's Motion ("Opposition") on November 15, 2006. At the same time, Plaintiff filed a Counter-Statement of Facts in Opposition to the Maui Bulletin's Concise Statement of Facts ("Opposition CSF"). On November 20, 2006, Plaintiff submitted an Errata to her Opposition comprised of a Table of Contents and Table of Authorities. The Maui Bulletin filed a Reply Memorandum in Support of its Motion on November 22, 2006. It then filed a substantially similar Amended Reply Memorandum ("Reply") on November 24, 2006.
The parties appeared before this Court to address the Maui Bulletin's Motion and Migita's Joinder on December 4, 2006.
Plaintiff was hired to be an advertising sales associate for the Maui Bulletin on December 18, 2002. Complaint ¶ 6; Motion at 3. She earned $300 a week plus a 15% commission on sales. Opposition CSF, Ex. 2 (Charge of Discrimination). The Maui Bulletin provided Plaintiff with a copy of its policy prohibiting sexual harassment at the time she was hired. Motion CSF ¶ 2; Motion CSF, Ex. B. On December 31, 2002, Plaintiff signed an Employee Acknowledgment form indicating that she received the Maui Bulletin's Harassment Policy and Procedures ("Company Policy"). Motion CSF, Ex. B at 1. Plaintiff states that she received the document but no accompanying discussion took place regarding the sexual harassment policies. Opposition CSF, Plaintiff Declaration ¶ 2.
In the Company Policy, the Maui Bulletin states that it "strongly disapproves of and will not tolerate harassment of any employee ... based upon ... sex ... under any circumstances." Motion CSF, Ex. B at 2. The Company Policy then defines sexual harassment and explains the types of consequences that an employee who violates the policy might face. Id. Employees who suffer such harassment are "urged to bring the matter immediately to the attention of company officials so that [they] may investigate and deal with the problem." Id. at 3.
At all relevant times, Migita was employed by the Maui Bulletin and served as Plaintiffs supervisor. Complaint ¶ 3. Plaintiff claims that Migita sexually harassed her from the time her -employment at the Maui Bulletin commenced. Id. ¶ 6. Starting as early as January 2003, Plaintiff alleges Defendant required her to complete unnecessary sales training sessions with him and to accompany him for "dining out" restaurant reviews. Opposition CSF, Plaintiff Declaration ¶¶ 23-29; Opposition CSF, Ex. 2 (Pre-Complaint Questionnaire) at 31013300078. Plaintiff believes that these activities were designed by Migita to be dates, and not professional encounters. Id. Plaintiff alleges that he made frequent calls to her home late at night and on weekends. Id. Eventually, the conduct was so persistent that Plaintiffs fiancé became suspicious of the relationship. Motion CSF, Ex. A, Plaintiff Deposition at 86:12-16. Some time near the end of March 2003, Plaintiff complained to Migita about his behavior and ended her participation in the individualized training sessions and dining-out reviews. Opposition CSF, Ex. 2 (Pre-Complaint Questionnaire).
Soon after she informed Migita that she would no longer interact with him in one on one settings, Plaintiff alleges that Migita began treating her in a way that adversely affected her work performance. She claims that he, among other things, demanded accounts of her whereabouts, unfairly distributed accounts to other sales personnel, interfered with the accounts that she held, and generally scrutinized her work. Opposition CSF, Ex. 2 Charge of Discrimination. Plaintiff also alleges that her employer attempted to dock $600 from her paycheck for unnecessary medical coverage for her daughter. Opposition CSF, Ex. 1.
In addition, throughout the first three or four months of her employment, Plaintiff claims that Migita frequently used sexually graphic language and "repeatedly made reference to explicit sexual acts." Opposition CSF, Ex. 2 (Pre-Complaint Questionnaire). Some examples of this language include: "I screwed this chick so hard she wet the bed"; telling her that he "wanted to fuck the bartender"; and describing a situation where he found himself naked outside one night after drinking excessively when a woman appeared and "gasped because she saw his anatomy." Plaintiff Deposition at 113-115. He also inquired as to whether her cousin would have "a purely sexual uninhibited relationship" with him. Opposition CSF, Ex. 2 (Pre Complaint Questionnaire). Plaintiff testified that the egregious sexual comments also stopped in March 2003.
Plaintiff explains that Migita's conduct went beyond verbal harassment and that he "touched [her] inappropriately during a sales meeting." Plaintiff Declaration ¶ 29. This allegation arises out of Plaintiff and Migita's business trip to a gym for the purpose of investigating corporate memberships. Plaintiff Deposition at 63. Plaintiff alleges that Migita forced her to work with weights and then inappropriately touched her under the guise that he was spotting her. Plaintiff Deposition at 65:10-16; 67:4-10. Plaintiff testified that this was the only time that Migita touched her. Motion, Ex. C, Plaintiff Deposition 137:3-6; 140:20-141:6.
In late April 2003, Plaintiff began keeping handwritten notes regarding Migita's conduct. Opposition CSF, Ex. 6. Thereafter, Plaintiff had an encounter with a fellow employee, Ayin Adams, where Adams discovered Plaintiff distraught over her daughter's medical insurance charges. Opposition CSF, Ex. 1. It was at this time that Plaintiff confided in Adams about the sexual harassment. Id.
Approximately one month later, on June 3, 2003, Ayin Adams confronted Kathleen Piimauna, the Maui Bulletin's Regional Accounting Manager, to report Migita's conduct. Motion CSF, Piimauna Declaration ¶ 2. In response, Piimauna conducted an investigation of Migita's behavior, during which she interviewed Plaintiff and many of her co-workers. Id. ¶¶ 3-4. At the conclusion of the investigation, the Maui...
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