McShane v. Dep't of Parks & Recreation

Decision Date23 June 2021
Docket NumberCiv. No. 20-00244-ACK-WRP
PartiesHAROLD P. MCSHANE, III, Plaintiff, v. DEPARTMENT OF PARKS AND RECREATION, CITY AND COUNTY OF HONOLULU; HONOLULU CIVIL SERVICE COMMISSION, Defendants.
CourtU.S. District Court — District of Hawaii

ORDER GRANTING THE COMMISSION'S MOTION TO DISMISS [ECF NO. 21] AND GRANTING THE CITY'S MOTION FOR JUDGMENT ON THE PLEADINGS OR IN THE ALTERNATIVE FOR SUMMARY JUDGMENT [ECF NO. 22]

This case arises from an employment dispute between Plaintiff Harold P. McShane and his employer, Defendant Department of Parks and Recreation, City and County of Honolulu (the "City"). Shortly after beginning his job with the Department of Parks and Recreation, McShane was placed on leave without pay pending an investigation of allegations of disruptive behavior and workplace misconduct. He was soon terminated in August 2017. McShane challenged his termination before Defendant Honolulu Civil Service Commission (the "Commission")—a government body that hears and decides city employees' appeals of employment decisions. The Commission found in the McShane's favor. It directed that he be reinstated, with some conditions, but it did not specify whether or not backpay should be awarded for lost wages. The Commission's ruling was affirmed in Hawai`i state court, after which McShane brought a separate lawsuit in state court seeking backpay for lost wages. Now in federal court, McShane alleges due process violations and breach of contract, both relating to his claim that he is entitled to backpay.

There are two motions before the Court. The Commission filed a Motion to Dismiss, ECF No. 21, and the City filed a Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment, ECF No. 22. Both parties filed joinders of simple agreement as to the other party's motion. ECF Nos. 25 & 27. For the reasons discussed below, the Court GRANTS the Commission's Motion to Dismiss and the City's associated Joinder, and GRANTS the City's Motion for Judgment on the Pleadings or in the Alternative for Summary Judgment and the Commission's associated Joinder.

BACKGROUND

Most of the facts in this case are not in dispute. Because the Court is deciding a motion to dismiss and motion for judgment on the pleadings, the facts are principally drawn fromthe operative complaint and the evidentiary exhibits attached to the parties' concise statements of facts ("CSFs").1

I. The Honolulu Civil Service Commission

The Honolulu Civil Service Commission is an administrative body (a merit appeals board) within the city government empowered to hear appeals of civil service employees. See Haw. Rev. Stat. ("HRS") § 76-47(a); see also Rev. City Charter City & Cnty. of Honolulu ("City Charter") §§ 6-1007, 6-1110 (am. 2017). Under the authorizing state statute and the Civil Service Rules, the Commission is empowered to hear four types of appeals:

(1) Recruitment and examination;
(2) Classification and reclassification of a particular position, including denial or loss of promotional opportunity or demotion due to reclassification of positions in a reorganization;
(3) Initial pricing of classes; and
(4) Other employment actions under this chapter, including disciplinary actions and adverse actions for failure to meet performance requirements, taken against civil service employees who are excluded from collective bargaining coverage under section 89-6.

HRS § 76-14(a); Civ. Serv. R., Ex. J to City's Mot., ECF No. 22-10, § 1-34. The statute and Civil Service Rules provide that "[a]ny civil service employee, who is suspended, discharged, ordemoted . . . may appeal to the merit appeals board within twenty days after a final decision is made under the internal complaint procedures." HRS § 76-47(e); see also Civ. Serv. R. § 1-35; Hoopai v. Civ. Serv. Comm'n, 106 Haw. 205, 208-10, 103 P.3d 365 (2004). In the event a merit appeals board finds that the employment action is not substantiated, the state statute provides that it must reinstate the employee, without loss of pay:

If the board finds that the reasons for the action are not substantiated in any material respect, the board shall order that the employee be reinstated in the employee's position, without loss of pay, but if the board finds that the reasons are substantiated or are only partially substantiated, the board shall sustain the action of the appointing authority, provided that the board may modify the action of the appointing authority if it finds the circumstances of the case so require and may thereupon order such disposition of the case as it may deem just.

HRS § 76-47(e); see also Civ. Serv. R. § 1-37.

In turn, the City Charter empowers the Commission to "reinstate [an] employee under such conditions as it deems proper." City Charter § 6-1108(1)-(2).

The Civil Service Rules and the authorizing statute impose certain requirements before an employee can be deemed a "member" of the civil service. See HRS § 76-27(a); Civ. Serv. R. § 3-2. In relevant part, employees appointed to civil service positions are not "entitled to membership in civilservice until the employee has . . . [s]uccessfully completed the initial probation period . . . ." HRS § 76-27(a); see also Civ. Serv. R. § 3-2. Even if they are not technically regular civil service employees under the statute, probationary employees that are subject to certain disciplinary action may appeal to the Commission which may then grant relief if the action is "arbitrary, capricious or discriminatory in nature." Civ. Serv. R. § 12-6.

The Civil Service Rules provide for backpay in certain circumstances:

§ 8-10 Leave pending investigation
(a) An employee may be placed on a leave of absence with or without pay pending an investigation of charges that the employee may have committed a work-related offense and/or the employee's presence at the worksite is deemed to be detrimental to the proper conduct of the investigation or the operations of the workplace. Leave without pay under this section shall be in accordance with the following:
(1) The employee shall be given an opportunity to respond in writing or in person to the appointing authority or designee as to why the employee should not be placed on leave without pay pending investigation.
(2) Notice of the proposed action must be given to the employee in writing and include the reasons for the proposed action, facts supporting the reasons, and the instructions for responding to the proposed action.
(b) A leave of absence with or without pay pending investigation may be for a period of up to thirty calendar days, provided that for good cause and with the approval of the director, the leave of absence without pay may be extended.
(c) An employee who has been placed on a leave of absence without pay shall be reinstated without loss of pay and all rights and benefits will be restored as though the employee had not been on leave if the employee is cleared during the investigation or the charge is dropped or not substantiated. In the event the employee is partially cleared, a portion of the leave may be reinstated as appropriate.

Civ. Serv. R. § 8-10. The rule applies to "civil service employees," id. § 8-7, which means "an employee who has met all the requirements for regular civil service status," including completion of the initial probationary period, id. § 2-13.

Appeals to the Commission are conducted as "contested case[s]." Id. § 1-37(a). Both the authorizing statute and the Civil Service Rules provide for specific procedures and safeguards when an employee appeals to the Commission, including the right to be heard publicly, to present evidence and be represented by counsel, and the right to examine and cross-examine witnesses. Id. §§ 1-36, 1-37; HRS § 76-47(e).

II. McShane's Employment with Department of Parks & Recreation, Leave Pending Investigation, & Termination

McShane began working as a groundskeeper for the City on July 24, 2017. Compl. ¶ 7; Pl. Opp. at 6; City Mot. at 2. As provided under the statute and Civil Service Rules described above, he began in an initial probation period. See HRS § 76-27(a); Civ. Serv. R. § 3-2; see also Pl. Opp. at 10. One week later, while still in the probationary period, McShane was notified that he was being placed on leave without pay fordisruptive behavior in the workplace. Compl. ¶ 8; Pl. Opp. at 6. McShane was then terminated effective August 28, 2017. Compl. ¶¶ 8-11; Pl. Opp. at 6; City Mot. at 2-3.

III. Appeal to Commission & State Court Appeal

On October 20, 2017, McShane—acting pro se—appealed his termination to the Honolulu Civil Service Commission. Compl. ¶ 11; see also Ex. 1 to Pl. CSF, ECF No. 33-2. In his petition of appeal, he framed his remedy requested as to be "reinstated and transfer[r]ed with justice." Ex. 1 to Pl. CSF. The Commission held three hearings on McShane's case. Compl. ¶ 12.

On November 27, 2018, the Commission issued Findings of Fact, Conclusions of Law, Decision and Order, Ex. 2 to Pl. CSF, ECF No. 33-3 (the "Commission's Order"), which found in McShane's favor. Compl. ¶ 13. The Commission reviewed the termination decision pursuant to its jurisdiction under the City Charter, the statute, and the Civil Service Rules. See Comm'n Order at 4. After rejecting the City's reasons for terminating McShane as "arbitrary, capricious or discriminatory in nature," the Commission imposed the following remedy: "(1) [McShane] shall be reinstated to the Grounds Keeper position; (2) [McShane] shall be required to undergo a new initial probationary period for the position; (3) [McShane] shall be assigned to a workplace other than Ala Moana Regional Park; (4)[McShane] shall be reinstated effective December 17, 2018; and (5) on or before January 2, 2019 [the City] shall submit a status report to the Commission setting forth the steps taken to comply with the Commission decision." Comm'n Order at 3-5; see also Compl. ¶ 13. Nowhere in the Commission's Order is backpay or any award of lost wages addressed. See Comm'n Order; Compl. ¶ 13.

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