Monday, December 7, 2009


R-E-S-P-E-C-T: The “old boys club” on Kaua`i is certainly not the province of a single gender anymore. The phrase is merely an anachronistic remnant of he days when only boys would and could be boys.

Today, regardless of gender, any jerkwad who has the self-initiative to step forward and “wrestle with the pigs” for a few years- developing a reputation for being willing to do and say just about anything to defend the privilege of the higher-ups by deflecting and absorbing the not-so-outrageous slings and arrows of public outrage at their future cronies' corruption- can live the dream of a becoming a “made man”- or woman... a mid-level “untouchable” as activist Ray Chuan used to call them.

But that doesn’t mean that they or their benefactors don’t still live in the dark ages when it comes to the on-the-job treatment of women- especially those that don’t respect the system that protects the protected and spits out dissidence.

A year ago this week we reported on the lawsuit of “Kaua`i Bus” driver Kathleen M. Ah Quin who has sued the Kaua`i Transpiration Agency- specifically, Executive on Transportation Janine Rapozo- for what appears to be a pervasive hostile atmosphere toward women at the agency.

As we wrote at the time:

Just as appalling as the actual discrimination is the fact the lawsuit was filed only because a year went by after Ah Quin’s filing of Hawai`i Civil Rights Commission (HCRC) and Equal Employment Opportunity Commission (EEOC) complaints without any attempt by the county to respond or even attempt to investigate the charges.

Then in April we reported on the case of former long time Deputy County Attorney Margaret (Hanson) Sueoka who has filed an EEOC complaint that has so far has resulted in the county attorney’s securing of $50,000 from the council to defend the charge. Her case remains under seal with the county apparently having responded to the EEOC case, unlike when Ah Quin’s case was ignored.

But the county still apparently hasn’t learned to respond to EEOC cases before they become lawsuits- where the specific details are publicly made available- and they apparently still haven’t learned much about responding to on-the-job sexual harassment claims or doing anything to stop them before they begin... much less disciplining the harassers.

These cases and others over the years however pale in comparison to the case of Kristan C. Hirakawa who, in a lawsuit filed in US District Court, alleges that even though she had won her 2001 EEOC case against the county while working for, surprise-surprise the Kaua`i Police Department (KPD), when the county, as required by the settlement, “reassigned” her to the Liquor Commission, she was further harassed at her new job.

The original filing had apparently never seen the light of reporting because EEOC complaints are considered confidential under federal law and are therefore exempt from the state’s sunshine and open records laws. The EEOC does however issue “Right to Sue” letters giving “permission” for a suit to arise from the complaint if the defendant doesn’t “settle” during the EEOC phase as it appears happened in Hirakawa’s current case.

According to the lawsuit filed through her attorneys, former state Attorney General Margery S. Bronster and local attorney Daniel G. Hempey:

(p)reviously, in approximately 2001, Plaintiff was employed as a dispatcher for the Kauai Police Department when she was sexually harassed by a co-worker. Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission ("EEOC"). As a result of the previous case, Plaintiff suffered serious physiological injury due to the sexual harassment, improper response to her legitimate complaint and loss of privacy that was inflicted on her while working in the Kauai Police Department. The matter settled without admitting fault.

Defendant County of Kauai agreed to identify and assist Plaintiff with obtaining another County job as a result of settlement negotiations in the previous case. Ultimately, Plaintiff obtained employment at the Kauai County Liquor Commission.

But that didn’t stop her new supervisor, Dexter Shimatsu, from continuing the typical cycle of sexual harassment followed by retaliation for whistle-blowing or the county’s, not just indifference but, apparently active aiding and abetting of Shimatsu’s actions

According to the suit,

(Hirakawa’s) situation within the Kauai County Liquor Commission remained relentless as the discrimination and harassment increased to the point of disabling her with severe emotional distress. Per doctor's orders, she has stopped working as a result, and remains unable to work in her County job due to the Defendant's failure and/or refusal to properly address the discrimination, harassment and retaliation she has suffered in the workplace.

We could characterize or pick and edit only the highlights of the sordid details but, with no space limitation and the fact that the allegations in the suit paint such a good portrait of Shimatsu and the county’s specific alleged actions- including the county attorney’s office’s alleged failure to investigate the EEOC claim and their decisions to rather fight it without any inquiry- we will print the pertinent section of the “Predicate Facts” contained in the suit.


Predicate Facts 9-36

The County of Kauai, obviously aware of Plaintiffs previous case and emotional condition, placed her in a workplace with a known sexual harasser as a co-worker and a supervisor with no prior training in sexual harassment law. On information and belief, the County of Kauai has consistently failed to meet its legal obligations to identify and prevent sexual harassment in the workplace.

Upon relocation to the Kauai County Liquor Commission, Plaintiff was immediately subject to offensive conduct on the basis of her sex. Her supervisor, Dexter Shimatsu, made sarcastic comments about sexual harassment to Plaintiff, often alluding to her history of having made a sexual harassment complaint. Shimatsu complained to Plaintiff that he had to order all of the posters [of scantily clad women] removed from the workplace because the "County made me hire you."'

During the course of her employment Plaintiff was often the subject of ridicule, sexual innuendo, sexual emails and insults from her supervisor. Shimatsu called her holistic medical practitioner a "witch doctor", and wrote an email to her saying: Use your common sense...I think you'll stay healthy...Oh yeah, and sleep with your clothes on. You could catch a cold, the flu and get pregnant without your clothes on...all bad ailments.

Shimatsu's demeaning conduct continued. After Plaintiff entered her baby into a contest (which she did not win), Shimatsu left a newspaper clipping of the winning baby in her mail bin where all her co-workers could see it. Above the picture of the winning mother and baby Shimatsu wrote a note saying: I really think the baby won because the mother was cute. With that in mind, you really need to do something about your baby can win. Your baby did her part by being cute... it's now up to you.

In May 2007, Shimatsu called Plaintiff into his office to tell her he heard from someone that her boyfriend was getting deployed to the Middle East. He stated, "You should buy your boyfriend a lot of condoms because there are a lot of prostitutes where he'll be stationed." He followed up in an email saying he doesn't think there are really prostitutes there.

At work the sexual harassment was incessant. Shimatsu continued degrading Plaintiff calling her such names as "tonta," meaning slow, dumb or stupid, and "shibai." Shimatsu made insolent comments about Plaintiff when she made a mistake but did not treat her co-workers rudely.

When she requested vacation time to care for her four month-old baby, Shimatsu responded in a memo stating: Your request for Vac/ Ct...was approved after much discussion...Lady, you give me a headache... always asking for special treatment as a female. I kind of feel its sexual harassment and should look into it. I think that's the only way I'm going to get rid of this nasty headache...what you think?

Plaintiff noted that other employees were not subject to insolent comments when asking for time off.

On another occasion, Shimatsu emailed to Plaintiff a photo of an attractive female dressed only in a tiny, diamond studded bikini. Shimatsu typed "You Wish" on the email before sending the email to Plaintiff from his work computer.

Plaintiff was unable to be in such a virulent environment where working meant being in constant dialogue with the perpetrator. She took leave on a disability claim. She sought medical help and counseling because of the harassment and discrimination at the Kauai County Liquor Commission. Under direction of Plaintiffs medical providers, she was not allowed to resume working while the harasser remained there or until the situation had been corrected.

In June of 2007, Plaintiff reported the sexual harassment to the County and sought disability leave from work.

The County did not pay on Plaintiffs disabilities claim and did not separate her from Shimatsu.

The County has failed to properly respond to or address the alleged sexual harassment complaint raised by Plaintiff.

The County broke its own County policy on sexual harassment as promised to Plaintiff and other County employees in a number of respects. First, the County promises that complaints of sexual harassment will be investigated within two weeks time. No timely investigation was done in Plaintiff's case. Secondly, County policy promises that the findings and results of an investigation into a complaint of sexual harassment will be made available to the complainant. The results of any investigation into sexual harassment have still not been made available to Plaintiff. And thirdly, County policy promises that corrective action will be taken when a County employee suffers from sexual harassment. On information and belief, no such corrective action has been taken.

Upon information and belief, the County's policy on sexual harassment in the workplace was intended to comply with applicable law.

Furthermore, the County ignored State and Federal law regarding the matter being pursued. The County instead protected the accused, her supervisor Shimatsu, offering no remedial action to Plaintiff and failing to conduct even a basic investigation for several months.

In many cases, County policy directs employees to report allegations of sexual harassment to the Office of the County Attorney to ensure, among other things, that the County acts in compliance with State and Federal law. However, in this case, the Office of the County Attorney chose to arbitrarily dispute Plaintiff's claim without adequate investigation and contrary to State and Federal law.

Upon information and belief, the County used a woman with no prior training or experience in sexual harassment investigations to perform the investigation of Plaintiffs complaint of sexual harassment.

A few months later, Plaintiff, through counsel, asked the Office of the County Attorney if she could have the results of its investigation(s) in Plaintiff's report of sexual harassment. The request was made pursuant to Haw. Rev. Stat. Ch. 92F et seq. (The Hawaii Public Records Act), but the Office of the County Attorney failed and/or refused to provide the results of the investigation to Plaintiff's attorney.

In August 2007, the County contacted Plaintiff and informed her that an interview was forthcoming, but it wasn't until September 14, 2007 when Ann Wooten, the chosen investigator, interviewed Plaintiff.

On information and belief, the County never asked Shimatsu if the Plaintiffs allegations against him were true.

The investigation was only performed after Plaintiff's disability pay had expired. The County left Plaintiff, a single mother of two, in a precarious financial position because of the delay in investigating her complaint and the lack of corrective action taken.

Plaintiff remains unable to resume working in direct contact with the same supervisor. Her accumulated losses approximate $50,000.00 even after mitigating wages lost by securing lower-paying employment. Her new position pays significantly less than her employment with the County.

The aforesaid events have changed the course of Plaintiff's life and career.

Plaintiff has complied with the administrative procedural requirements for maintaining a civil action for discrimination on the basis of sex and for retaliation under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Plaintiff filed the aforesaid charges with the United States Equal Employment Opportunity Commissions, and the EEOC has made a determination of cause to believe that the alleged sexual harassment occurred.

On November 13, 2008 the EEOC found that "The Commission's investigation determined that there is reasonable cause to believe that Charging Party was subjected to sexual harassment because of her sex, female."

Thereafter the EEOC issued a "Right to Sue" letter and Plaintiff, and timely filed this action with 90 days of issuance of her Right to Sue letter, issued on March 3, 2009.

At all relevant times herein, the acts of the County were undertaken within the course and scope of Plaintiff's employment.

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