Mcnally v. Univ. of Hawaii

Decision Date28 January 2011
Docket NumberCiv. No. 09–00363 SOM/KSC.
Citation780 F.Supp.2d 1037,270 Ed. Law Rep. 727
PartiesKathleen McNALLY, Plaintiff,v.UNIVERSITY OF HAWAII; et al., Defendants.
CourtU.S. District Court — District of Hawaii


Andre S. Wooten, Honolulu, HI, for Plaintiff.Christine Tamashiro, Ryan M. Akamine, University of Hawaii, Office of Vice–President for Legal Affairs, Gregg M. Ushiroda, Office of the General Counsel for the University of Hawaii, Honolulu, HI, for Defendants.



Before the court are Defendants' motions for summary judgment. The court grants the motions on the ground that McNally fails to raise genuine issues of fact that would preclude judgment as a matter of law.

Plaintiff Kathleen McNally alleges that she was not retained as the Athletic Director of Defendant University of Hawaii at Hilo (UHH) on the Big Island of Hawaii because she had complained about violations of Title IX. McNally claims to have been terminated for complaining that her salary was not equal to that of the male Athletic Director of the University of Hawaii at Manoa (UHM) and that she had not received a multiyear contract.

McNally sues 1) UHH, 2) Rose Tseng, UHH's Chancellor, 3) Keith Miser, UHH's Vice Chancellor of Student Affairs, 4) Luoluo Hong, Miser's replacement as UHH's Vice Chancellor of Student Affairs, 5) Bill Chen, UHH's Vice Chancellor for Administration, and 6) Alyson Y. Kakugawa–Leong, UHH's Director of Media Relations. Tseng, Miser, Hong, Chen, and Kakugawa–Leong (collectively “Individual Defendants) are named in both their individual and official capacities. The Complaint asserts violations of Title IX (Cause of Action I), §§ 1981 and 1981A (Cause of Action II), § 1983 (Cause of Action III), and section 378–2 of the Hawaii Revised Statutes (Cause of Action IV). The Complaint also asserts claims for intentional infliction of emotional distress (“IIED”) (Cause of Action V) and slander and libel (Cause of Action VI), and seeks punitive damages.

UHH and the Individual Defendants have filed separate motions for summary judgment. The motions are granted.

The court denies McNally's requests for a continuance to take discovery, as McNally fails to demonstrate that she has diligently pursued discovery in the past and fails to show why such discovery is necessary to oppose the present motions.

The court strikes the declaration of Christine Grant,McNally's expert who purports to state facts and who fails to demonstrate any expertise making her opinions helpful to a decisionmaker.


McNally received an executive appointment to be UHH's athletic director in January 2001. See University of Hawaii Payroll Notification Form, ECF No. 39–2. McNally's appointment was not renewed in 2008.

McNally filed the present Complaint on August 7, 2009, naming UHH and various individuals as defendants.

McNally sues Keith Miser, the former Vice Chancellor of Student Affairs at UHH who now works for UHH's Chancellor. Miser worked with UHH's athletic department with respect to its program and budget issues. Miser also did McNally's annual employment evaluations and performance reviews. See Declaration of Keith Miser, Oct. 20, 2010, ECF No. 39–13. At the hearing on the present motions, McNally explained that she is suing Miser because he wanted to use $500,000 that the state legislature had appropriated for UHH's Title IX compliance for UHH's general expenses, not for things directly related to Title IX compliance. Although at one point McNally alleged that Miser had spoken about a desire to hire a “Japanese Male,” see Complaint ¶ 14, McNally later clarified that she is not charging Miser with any wrongdoing in that regard, as she has concluded that Miser made no such statement. See ECF Nos. 72–36 and 72–37.

McNally sues Luoluo Hong, Miser's replacement as the Vice Chancellor for Student Affairs at UHH. Hong joined UHH in that position on January 1, 2008. See Declaration of Luoluo Hong, Oct. 20, 2010, ECF No. 39–19; Deposition of Kathleen McNally at 276, Dec. 8, 2010, ECF No. 80–3.

McNally sues Rose Tseng, the retired Chancellor of UHH. See Deposition of Rose Tseng at 5, Dec. 14, 2010, ECF No. 80–6 (indicating that Tseng retired at the end of June 2010).

McNally sues Bill Chen, the Vice Chancellor for Administration of UHH. McNally says that Chen, along with Tseng and Miser, refused to increase UHH's athletic budget to address Title IX issues. See Complaint ¶¶ 6, 18. At the hearing on the present motions, McNally clarified that Chen is named as a Defendant because he was in charge of UHH's budget and because McNally allegedly suffered retaliation after complaining about UHH's use of $500,000 designated for Title IX compliance for other UHH expenses.

McNally sues Alyson Y. Kakugawa–Leong, UHH's Director of Media Relations, asserting that she made slanderous and libelous statements in press releases about McNally's termination. McNally clarified at the hearing and in her deposition that she is suing Kakugawa–Leong only for defamation, not for actions violative of Title IX or any other law. See also Deposition of Kathleen McNally at 202–03, Dec. 8.2010, ECF No., 80–3. McNally presents no direct evidence of what Kakugawa–Leong actually said and is instead relying on a newspaper article to show that Kakugawa–Leong made statements about McNally. As discussed below, however, the newspaper does not actually state that Kakugawa–Leong made any such statement.

There is no dispute that, in the first years of her employment, McNally received favorable employment reviews and merit raises. Over time, the reviews indicated increasing concern regarding fiscal spending and budgetary shortfalls. See ECF No. 39–14 (positive performance review for 2002–03 academic year); ECF No. 39–15 (positive performance review for 2003–04 academic year); ECF No. 39–8 (merit raise effective July 1, 2004); ECF No. 39–16 (generally positive performance review for 2004–05 academic year); ECF No. 39–9 (merit raises effective July 1, 2006); ECF No. 39–17 (mostly positive performance review for 2005–06 year, but notation that UHH's athletic department failed to stay within budget and was expected to run a $40,000 to $80,000 deficit for the 2005–06 fiscal year as a result of many purchases that did not use the requisition system); ECF No. 39–10 (merit raise effective July 1, 2007); ECF No. 39–18 (performance review for 2006–07 year noting concerns about management, planning, and financial stability and telling McNally to reduce expenditures to keep them within the operating budget, and also noting that expenses had skyrocketed in every department and that the athletic department had to adjust its budget to control spending).

In 2006, McNally asked UHH to review her salary, saying that it was her fourth such request in four years. McNally argued that she should receive compensation equal to that of the Athletic Director of UHM, the university's flagship campus located in Honolulu. The UHM athletic director was a male who was paid significantly more than McNally. McNally also requested a five-year contract. See Letter from Kathleen McNally to Rose Tseng, Aug. 4, 2006, ECF No. 39–11.

On October 10, 2006, UHH responded to McNally's request that her compensation be equivalent to that of UHM's Athletic Director and to the request for a multi-year contract. UHH's Director of Human Resources, Kerwin Iwamoto, told McNally that McNally's responsibilities, scope of work, number of personnel, and budget were not comparable to those of UHM's Athletic Director, as UHM was a larger, NCAA Division I school, with a much larger athletic department. Iwamoto told McNally that “Salary comparisons in the UH system use the CUPA salary scales for comparisons” and that McNally's salary was above the 40th percentile for institutions of similar size and character. Iwamoto told McNally that no executive/managerial employee at UHH, including the Chancellor, had a multi-year contract. See Letter from Kerwin Iwamoto to Kathleen McNally, Oct. 10, 2006, ECF No. 39–12.

As of January 28, 2008, UHH was projecting a deficit of $453,763 for its athletic department. See Email from Lois Fujiyoshi to many recipients, including Kathleen McNally, Jan. 28, 2008, ECF Nos. 72–33 and 80–4. Defendants' Concise Statement alleges that McNally was informed of this projected deficit. See Concise Statement ¶ 41, ECF No. 80. McNally does not controvert these assertions relating to the projected deficit in her own concise statement. Accordingly, pursuant to Local Rule 56.1(g), they are deemed admitted.

On January 30, 2008, newly hired Hong sent McNally an email, telling McNally to take certain actions to minimize the current fiscal year's deficit and to ensure that no deficit occurred in the 2008–09 fiscal year. See Email from Luoluo Hong to Kathleen McNally, Jan. 30, 2008, ECF No. 39–20. Via a separate email the same day, Hong suspended McNally's “signing authority” while UHH sought to manage its budget. See Email from Luoluo Hong to Kathleen McNally, Jan. 30, 2008, ECF No. 39–21.

On February 8, 2008, Hong sent an email to all of UHH's coaches, informing them that Hong and McNally had met and discussed fiscal matters. Hong told the coaches that, effective immediately, all coaches, as well as the Associate Director and Business Manager, were to report directly to Hong, and that all decisions affecting the budget required consultation with Hong. See Email from Luoluo Hong to various coaches, Feb. 8, 2008, ECF No. 39–23.

On February 19, 2008, Hong sent McNally a letter saying that, because it was virtually impossible for McNally to do anything that would not affect UHH's budget, McNally was to “refrain from participating substantively in any administrative activities.” See Letter from Luoluo Hong to Kathleen McNally, Feb. 19, 2008, ECF No. 39–25.

On March 1, 2008,...

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