Dowkin et al hpd discrimination complaint
Upcoming SlideShare
Loading in...5
×
 

Dowkin et al hpd discrimination complaint

on

  • 1,174 views

HPD discrimination complaint

HPD discrimination complaint

Statistics

Views

Total Views
1,174
Views on SlideShare
698
Embed Views
476

Actions

Likes
0
Downloads
1
Comments
0

3 Embeds 476

http://www.civilbeat.com 389
http://m.civilbeat.com 86
http://cb-prod.herokuapp.com 1

Accessibility

Categories

Upload Details

Uploaded via as Adobe PDF

Usage Rights

© All Rights Reserved

Report content

Flagged as inappropriate Flag as inappropriate
Flag as inappropriate

Select your reason for flagging this presentation as inappropriate.

Cancel
  • Full Name Full Name Comment goes here.
    Are you sure you want to
    Your message goes here
    Processing…
Post Comment
Edit your comment

Dowkin et al hpd discrimination complaint Dowkin et al hpd discrimination complaint Document Transcript

  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 1 of 76 PageID #: 2180 Merit Bennett Seth L. Goldstein The Bennett Firm Law Offices of Seth L. Goldstein 1050 Bishop Street, #302 2100 Garden Road, Suite H-8 Honolulu, Hawai=i 96813 Monterey, CA 93940 Telephone: (808) 531-9722 Telephone: (831) 372-9511 Facsimile: (808) 486-2833 Facsimile: (831) 372-9611 Attorneys for Plaintiffs IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF HAWAI’I SERGEANT SHERMON DEAN Case No. CV10 00087 SOM/RLP DOWKIN, OFFICER FEDERICO DELGADILLO MARTINEZ, JR., and OFFICER CASSANDRA BENNETT- THIRD AMENDED BAGORIO, COMPLAINT FOR COMPENSATORY, Plaintiffs, STATUTORY AND PUNITIVE DAMAGES vs. THE CITY AND COUNTY OF HONOLULU, FORMER CHIEF OF TRIAL DATE: July 31, 2012 POLICE BOISSE CORREA, CURRENT CHIEF OF POLICE LOUIS KEALOHA, ASSISTANT CHIEF MICHAEL TAMASHIRO, MAJOR KENNETH SIMMONS, MAJOR JOHN MCENTIRE, CAPTAIN NYLE DOLERA, LIEUTENANT MICHAEL SERRAO, LIEUTENANT DAN KWON, LIEUTENANT WILLIAM AXT, SERGEANT WAYNE FERNANDEZ, SERGEANT RALSTAN TANAKA, OFFICER COLBY KASHIMOTO, PAT AH LOO,
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 2 of 76 PageID #: 2181 THIRD AMENDED COMPLAINT FOR COMPENSATORY, STATUTORY AND PUNITIVE DAMAGES COME NOW the Plaintiffs, Honolulu Police Officers Sergeant Shermon Dean Dowkin, Officer Federico Delgadillo Martinez, Jr., and Officer Cassandra Bennett-Bagorio, by and through their undersigned counsel, and, for their Third Amended Complaint against the Defendants, respectfully state as follows: JURISDICTION AND VENUE 1. Plaintiffs bring this action pursuant to federal law and Hawai=i state law. 2. Jurisdiction over Plaintiffs= federal claims is proper under 28 U.S.C. 1331. The Court has supplemental jurisdiction over their Hawai=i state law claims, pursuant to 28 U.S.C. 1367. Venue is proper in this Court pursuant to 28 U.S.C. 1391(b). Plaintiffs have received permission from the United States Equal Employment Opportunity Commission and the Hawai=i Civil Rights Commission to file suit against Defendants in this Court. NATURE OF THE COMPLAINT 3. This is an action to recover compensatory and punitive damages brought by three Honolulu Police Officers against their employers, The Honolulu Police Department and The City and County of Honolulu (hereinafter "HPD" and the "City" respectively, and "HPD" collectively), and against numerous complicit 2
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 3 of 76 PageID #: 2182 supervising officers, for systemic racial and gender discrimination and retaliation, violation of state and federal anti-discrimination laws, violation of and conspiracy to violate federal and state constitutional rights, intentional and/or negligent infliction of emotional distress, negligent supervision and training and civil conspiracy. The Honolulu Police Department is a department of the Defendant City. 4. These Plaintiff Officers are loyal and dedicated public servants who have always worked unselfishly for the benefit and protection of the citizens of Hawai=i and specifically the residents of Oahu. Plaintiffs are saddened, dismayed and disappointed with the mistreatment directed toward them by some of their supervisors and fellow officers who have chosen to put Plaintiffs at risk of bodily harm and even death solely because of invidious racial and gender prejudice. Plaintiffs have been forced to bring this lawsuit at great personal risk, for their emotional and economic well-being and to preserve the good name of their chosen profession, in the face of intentional misconduct which is inherently dangerous and totally contrary to the spirit of Aloha. PARTIES Plaintiffs 5. Plaintiff Shermon Dean Dowkin (hereinafter "Sgt. Dowkin") is a 47- year-old Motorized Metropolitan Police Sergeant with the Honolulu Police Department ("HPD"), employed with HPD since 1988 and currently serving as a 3
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 4 of 76 PageID #: 2183 Field Sergeant on the First Watch in HPD District 4 (District 4 includes Kaneohe, Kailua and Kahuku). During his career with HPD, Sgt. Dowkin has never been disciplined, suspended, demoted nor ever received a sub-par evaluation. Sgt. Dowkin is an African-American male and was the only African-American supervisor in HPD District 4 for most of the relevant time period. He has been married for 19 years and has 4 children, ages 6-16. He served in the United States Air Force and the Air Force Reserve and became a resident of the State of Hawai=i in 1981. 6. Sgt. Dowkin=s duties as a Field Sgt. include leading, directing and managing police officers, along with civilian employees of HPD. He is required to uphold the constitutions of the United States and the State of Hawai=i. He trains officers in traffic-related areas on a continuous basis and provides a liaison between the Administrative Drivers License Revocation Office, District Courts and Prosecuting Attorneys. He insures that the officers he supervises are current on the latest issues which may affect police operations or practices in order to provide a ready, steady and consistent resource for HPD and the Oahu community. 7. Plaintiff Federico Delgadillo Martinez, Jr., (hereinafter "Ofc. Delgadillo") is a 44-year-old Motorized Metropolitan Police Officer with HPD, employed with HPD since 1998. Ofc. Delgadillo is a Mexican-American male and was the only Mexican-American police officer serving in HPD District 4 during all 4
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 5 of 76 PageID #: 2184 relevant times herein. During his career with HPD, Ofc. Delgadillo has never been disciplined, suspended nor demoted. Ofc. Delgadillo formerly served in the United States Navy in the Gulf War. He became a resident of Hawai=i in 1993. Ofc. Delgadillo is now a member of the U.S. Navy Reserve and is currently on military orders on Oahu as an Assistant Anti-Terrorism Officer/Military Police Officer. Ofc. Delgadillo is married and has 6 children, ages 17 to 2 years old. Because of the stress of the mistreatment he has suffered below, Ofc. Delgadillo was constructively discharged and forced to resign from his employment with HPD in the summer of 2011. 8. Plaintiff Cassandra Bennett-Bagorio (hereinafter "Ofc. Bennett- Bagorio") is a 44-year-old Motorized Metropolitan Police Officer with the HPD, employed with HPD since 1997. Ofc. Bennett-Bagorio is a single white female of Caucasian descent and was born and raised in Honolulu. During her career with HPD, Ofc. Bennett-Bagorio has never been disciplined, suspended or demoted. Her father, Major (Ret.) William J. Bennett, served his 35-year career as a police officer with the Honolulu Police Department, retiring in 1998. Defendants 9. Defendant City and County of Honolulu (hereinafter sometimes referred to as "City" or "City & County") is a governmental entity formed under the laws of the State of Hawai=i, operating the Honolulu Police Department to 5
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 6 of 76 PageID #: 2185 enforce the laws of the land, to include the laws of the United States of America, the State of Hawai=i and the City & County of Honolulu. Defendant City, at all times herein, is liable to Plaintiffs and sued pursuant to the doctrine of respondeat superior. The below-named individual Defendants were, at all relevant times herein, acting on behalf or in furtherance of the business of HPD and/or the City & County, thereby binding HPD and/or the City & County to any resulting liability to Plaintiffs. Upon information and belief, these Defendants, at some point during the relevant time period herein, received federal financial assistance and aid. 10. Defendant Chief of Police Boisse Correa (hereinafter "Chief Correa"), believed to be a male of Portuguese descent, was, during most of the relevant times referred to herein, the chief of police for HPD until August 26, 2009, and, at all relevant times herein, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was engaged at all times in the course and scope of his employment as an authorized representative on behalf of HPD and the City & County and was responsible for the training and supervision of the other Defendant officers and for the investigation and remediation of complaints of discrimination, specifically those of Plaintiffs referred to herein, yet Chief Correa accomplished, ratified, condoned, facilitated and/or permitted some or all of the illegal misconduct described herein committed on behalf of HPD by him and/or one or more of the supervisor Defendants. 6
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 7 of 76 PageID #: 2186 11. Defendant Chief of Police Louis Kealoha (hereinafter "Chief Kealoha"), believed to be a Hawai=ian male of mixed descent, succeeded Chief Correa as the chief of police for HPD on November 25, 2009, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, to include his adoption, ratification and perpetuation of the illegal misconduct of his predecessor directed toward these Plaintiffs, was engaged at all times in the course and scope of his employment as an authorized representative of HPD and the City & County and was and still is responsible for the training and supervision of the other Defendant officers and the investigation and remediation of Plaintiffs many complaints of discrimination and retaliation, to include specifically the complaints of these Plaintiffs which were outstanding when Defendant Kealoha assumed office in November of 2009, yet Chief Kealoha has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein committed by HPD with his knowledge and under his command and/or by one or more of the supervisor Defendants for whom Chief Kealoha was responsible in his capacity as Chief of Police. 12. Defendant Assistant Chief Michael Tamashiro (hereinafter "Asst. Chief Tamashiro"), a male of Japanese ancestry, at all times relevant herein, with respect to his illegal actions and/or inactions directed toward one or more of 7
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 8 of 76 PageID #: 2187 Plaintiffs as described herein, was engaged in the course and scope of his employment as the Assistant Chief of the Regional Patrol Bureau supervising Maj. Simmons and District 4 and an authorized representative on behalf of HPD and the City & County, and Asst. Chief Tamashiro was responsible for the training and supervision of the other Defendant officers and the investigation and remediation of complaints of discrimination, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein committed on behalf of HPD by him and/or by one or more of the supervisor Defendants. 13. Defendant Major Kenneth Simmons (hereinafter "Maj. Simmons"), a male of Caucasian and Portuguese mixed ancestry, at all relevant times herein, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was engaged in the course and scope of his employment as the supervisor of HPD District 4 and an authorized representative on behalf of HPD and the City & County and was responsible for the training and supervision of the other Defendant officers and the investigation and remediation of complaints of discrimination, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein committed on behalf of HPD by him and/or by one or more of the supervisor Defendants. 8
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 9 of 76 PageID #: 2188 14. Defendant Major John McEntire (hereinafter "Maj. McEntire"), a male of Caucasian ancestry, was, during the relevant times referred to herein, an HPD officer assigned to its Human Resources Department, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was at all times engaged in the course and scope of his employment as an officer responsible for the investigation and prevention of illegal discrimination within the HPD, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 15. Defendant Captain Nyle Dolera (hereinafter "Capt. Dolera"), a male of Hawai=ian mixed ancestry, was, during the relevant times referred to herein, a captain for HPD assigned to District 4, subordinate to Defendant Maj. Simmons and superior to Plaintiffs, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was engaged at all times in the course and scope of his employment as a supervisor of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County and was responsible for the supervision of the other Defendant officers, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or 9
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 10 of 76 PageID #: 2189 all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 16. Defendant Lieutenant William Axt (hereinafter "Lt. Axt"), a Caucasian male, was, during the relevant times referred to herein, a lieutenant for HPD, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was engaged at all times in the course and scope of his employment as a supervisor of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County and was responsible for the supervision of subordinate Defendant officers, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 17. Defendant Lieutenant Dan Kwon (hereinafter "Lt. Kwon"), a male of Korean descent, was, during the relevant times referred to herein, a lieutenant for HPD, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was at all times engaged in the course and scope of his employment as a supervisor of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County and was responsible for the supervision of subordinate Defendant officers, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the 10
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 11 of 76 PageID #: 2190 illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 18. Defendant Lieutenant Michael Serrao (hereinafter "Lt. Serrao"), a male of Portuguese ancestry, was, during the relevant times referred to herein, a lieutenant for HPD, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was at all times engaged in the course and scope of his employment as a supervisor of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County and was responsible for the supervision of subordinate Defendant officers, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 19. Defendant Lieutenant Wayne Fernandez, a male of mixed Portuguese ancestry, was, during the relevant times referred to herein, a sergeant for HPD, and, therefore, will be referred to herein as ASgt. Fernandez.@ With respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, Sgt. Fernandez was engaged in the course and scope of his employment as a supervisor of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County and was responsible for the supervision of subordinate Defendant officers, yet he has accomplished, ratified, condoned, facilitated, 11
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 12 of 76 PageID #: 2191 perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD and/or committed by him and/or by one or more of the supervisor Defendants. 20. Defendant Sergeant Ralstan Tanaka (hereinafter "Sgt. Tanaka"), a male of Japanese ancestry, was, during the relevant times referred to herein, a sergeant for HPD, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was at all times engaged in the course and scope of his employment as a supervisor of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County and was responsible for the supervision of subordinate Defendant officers, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 21. Defendant Pat Ah Loo (hereinafter "Mr. Ah Loo"), a male of Asian ancestry, was, during the relevant times referred to herein, the civilian Labor- Relations Advisor for HPD, and, with respect to his illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was at all times engaged in the course and scope of his employment as an administrator responsible, in part, for the investigation and prevention of illegal discrimination within the HPD, yet he has accomplished, ratified, condoned, facilitated, 12
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 13 of 76 PageID #: 2192 perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 22. Defendant Officer Colby Kashimoto (hereinafter "Ofc. Kashimoto"), a male of Japanese ancestry, was, during all relevant times referred to herein, an officer for HPD, and, with respect to his/her illegal actions and/or inactions directed toward one or more of Plaintiffs as described herein, was engaged in the course and scope of his employment as a co-worker of Plaintiff(s) and as an authorized representative on behalf of HPD and the City & County, yet he has accomplished, ratified, condoned, facilitated, perpetuated and/or permitted some or all of the illegal misconduct described herein on behalf of HPD committed by him and/or by one or more of the supervisor Defendants. 23. All of the foregoing Defendants owe, and during all relevant times herein owed, duties, as employers and/or as supervising and/or supporting officers of Plaintiffs in HPD=s chain of command, both to the Public and to Plaintiffs: (1) to insure that illegal racial and gender workplace discrimination and retaliation would not occur within HPD by: (a) establishing a comprehensive and zero- tolerance policy of non-discrimination and non-retaliation, (b) thoroughly training all employees of HPD with respect to such policy and (c) providing for strict discipline in the event of violation of such policy; and (2) upon receipt of notice of 13
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 14 of 76 PageID #: 2193 the occurrence of any such illegal activity, notwithstanding any of the foregoing efforts which may have been undertaken to prevent it, to insure that such illegal activity was immediately reported to their respective superiors, immediately investigated and immediately remediated (in the case of illegal discrimination and retaliation which could result in the serious bodily injury or death of targeted officers, Defendants= duties also included immediate reporting to the United States Department of Justice for potential criminal investigation of offending officers and supervisors). All of the foregoing Defendants breached these duties owed to the Public and to Plaintiffs as described below. 24. The allegations herein all arise out of the same series of transactions or occurrences and involve questions of law and fact common to all Plaintiffs and all Defendants, in satisfaction of F.R.C.P. Rule 20. INTRODUCTION 25. The Honolulu Police Department, consistent with police practices throughout the United States, and perhaps the world, requires that when a motorized patrol officer makes a traffic stop, fellow officers must immediately proceed to the scene to cover and protect the officer making the stop. Similarly, on all police calls involving any potential for violence, backup officers are immediately assigned to cover the officer initially arriving at the scene. 26. Although officially condemned, there is an unspoken practice 14
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 15 of 76 PageID #: 2194 employed by law enforcement officers to isolate and ostracize a fellow officer whom they dislike. 27. The Ablue line@ refers to a bond that binds officers in uniform together and requires unwavering loyalty and uniformity of opinion. When an officer opposes illegal practices perpetrated by his or her fellow officers, such as racism or sexism, he or she is said to have "crossed the blue line," and the chain of command of the offending officers will then close ranks around the offending officers and isolate and ostracize, or even retaliate against, the complaining officer. 28. One of the ways to punish an officer for "crossing the blue line" is to not provide him or her with backup cover on police calls and vehicle stops. This retaliatory practice places the targeted officer in danger, thereby forcing him or her to resign their employment with the department. 29. In 1998, when Shermon Dowkin was first assigned to District 4 (based in Kailua) as a patrol officer, he worked under the supervision of Sgt. Robert Mercado. 30. At that time, Defendant Sgt. Wayne Fernandez was also a sergeant on the First Watch in District 4 with Sgt. Mercado. 31. Within fifteen minutes after Officer Dowkin began his first shift on the First Watch, Sgt. Fernandez came on the radio and asked Ofc. Dowkin for his location. When Dowkin responded that he was a half mile away from the end of his 15
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 16 of 76 PageID #: 2195 beat on a highway, Defendant Fernandez, knowing that all other shift officers would hear his comments, berated Ofc. Dowkin over the radio and ordered him to come into the station. There Defendant Fernandez then scolded and humiliated Ofc. Dowkin for patrolling for traffic violations one-half mile beyond his beat, when all Dowkin was doing was driving to the next turn-around on the highway in order to reverse his travel and get back onto his beat in the other direction. 32. Soon thereafter, at a line-up at the Kailua station, when Dowkin asked Mercado a question to clarify something that Mercado had said, Mercado responded to Ofc. Dowkin in a racially pejorative manner, AWhat am I talkin=, fuckin= African [referring to Ofc. Dowkins racial heritage]?@ 33. When Dowkin reported this racial remark to the HPD administration in the form of a personnel complaint, Sgt. Mercado was removed from the shift and from his supervisory duties over Dowkin. Mercado was subsequently disciplined and, apparently, left the employ of the Honolulu Police Department as a result of Ofc. Dowkins complaint. 34. Defendant Fernandez and Sgt. Mercado were close friends. 35. When Dowkin was promoted to Sergeant, he was assigned to the Criminal Investigations Division (CID) in Honolulu. 36. In 2002, Sgt. Dowkin returned to the First Watch in District 4, where Sgt. Fernandez was still assigned. 16
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 17 of 76 PageID #: 2196 37. In 2003, Sgt. Dowkin was assigned to head an elite team to enforce DUI laws in District 4, which would require Sgt. Dowkin and the officers on his team to make potentially dangerous traffic stops of individuals under the influence of drugs and/or alcohol during the nighttime hours on sparsely traveled roadways. 38. Soon after Sgt. Dowkin commenced his command of the DUI team, regular patrol officers began to fail to provide him with backup cover when he made DUI and other traffic stops, even when he made verbal requests for cover over the radio. 39. This left him to contend with suspects alone on the roadway, in direct violation of HPD policy and jeopardizing his personal safety. 40. Even the officers working for him, including specifically Plaintiff Ofc. Delgadillo, were not receiving backup cover from other patrol officers. 41. Sgt. Dowkin made several complaints to his superior command officers, both verbally and in writing, about the failure of the regular patrol officers to provide Sgt. Dowkin and his DUI team officers with mandatory backup cover. 42. Sgt. Dowkin eventually complained in writing directly to then Chief Boise Correa, unequivocally stating in the memo to Chief Correa dated July 9, 2008, that the failure of his fellow patrol officers to provide mandatory backup cover to himself and Ofc. Delgadillo was a consequence of racial discrimination being perpetrated against him because he was African-American and against Ofc. 17
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 18 of 76 PageID #: 2197 Delgadillo because he was Mexican-American. 43. Defendant Fernandez, with the express approval of Defendant Lt. Kwon, made a specific order, in direct violation of HPD policy, to the officers of the First Watch in District 4 that they were not to provide backup cover for the DUI team (Sgt. Dowkin and Ofc. Delgadillo). 44. When Defendant Fernandez gave this order, none of the officers in the chain of command, including neither Defendant Lt. Kwon, Defendant Lt. Serrao, Defendant Capt. Dolera, Defendant Maj. McEntire, Defendant Maj. Simmons, Defendant Assistant Chief Tamashiro nor the two Chiefs of Police, Correa and Kealoha, at any time thereafter over the next 3 years, including until the filing of this Third Amended Complaint, have countermanded that order or punished Sgt. Fernandez or Lt. Kwon for giving it. 45. When Ofc. Delgadillo and Sgt. Dowkin made their racial discrimination complaint about the failure of patrol officers to provide them with backup cover, they were retaliated against by all of the Defendants who failed to stop the violations of HPD policy, failed to investigate and punish the offending Defendants and/or, by such failures, acted to provide tacit approval of such violations of HPD policy and such violations of federal and state anti- discrimination and anti-retaliation laws. 46. When Ofc. Bennett-Bagorio, then a member of the First Watch, 18
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 19 of 76 PageID #: 2198 District 4, patrol, supported and verified the truth of Dowkins and Delgadillo=s complaints, she, too, was retaliated against by her fellow patrol officers for opposing unlawful discriminatory practices directed at Sgt. Dowkin and Ofc. Delgadillo and/or because she was a female. 47. When Ofc. Bennett-Bagorio later filed a formal complaint alleging such retaliation and that she was being discriminated against because of her gender, she was further endangered and suffered a debilitating injury on October 18, 2010, months after the original complaint in this lawsuit was filed, when Defendant Tanaka, who was permitted to be her supervising officer by his Defendant superiors, in retaliation for her complaint of gender discrimination and retaliation, intentionally allowed her to go into a bar alone, without backup cover, and she was physically assaulted by a suspect, causing her to suffer serious injury. 48. On June 2, 2011, Defendant Fernandez, now a civilian, gained entry into Ofc. Bennett-Bagorios secure work place at HPD Central Receiving, with the intent to cause. or with reckless disregard that his actions would cause, Ofc. Bennett-Bagorio to suffer severe and extreme emotional distress, and Ofc. Bennett- Bagorio did, in fact, suffer severe and extreme emotional distress as a result. Although not authorized, Defendant Fernandez gained entry to Ofc. Bennett- Bagorios secure work place with the aid and agreement of officers of Defendant City, thus conspiring to cause Ofc. Bennett-Bagorio to suffer harm. 19
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 20 of 76 PageID #: 2199 49. On October 11, 2010, Sgt. Dowkin was not provided with effective backup cover at a attempted murder scene by Defendant Kashimoto, narrowly resulting in harm to Sgt. Dowkin and causing him to suffer emotional distress and associated physical symptoms of injury. 50. Beginning in 2003, Sgt. Dowkin, and since 2007, Ofc. Delgadillo, and since 2008, Ofc. Bennett-Bagorio, all have been illegally subjected to racially motivated, retaliatory and disparate treatment perpetrated by their fellow officers, their supervisors in their chain of command and the HPD administrative hierarchy. 51. This illegal, discriminatory and retaliatory mistreatment has manifested in many forms, ranging from the failure of their supervisors and fellow officers to provide protective Acover@ or Abackup@ in the field and assistance at police stations with arrestees, to being singled out for harassment by direct orders from their superiors to conform to the Aletter@ of HPD Policies, Procedures, Manual of Operation, Notices, Standards of Conduct and Police Practices, even though no other officers, including the individual Defendants, were held to the same standards. 52. In addition, several of the Defendants, as described below, have made racial comments and perpetrated other illegal mistreatment upon these Plaintiffs, causing them to suffer severe emotional, physical, psychological and financial harm, as well as imminent threat of bodily injury and death. 20
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 21 of 76 PageID #: 2200 53. When Ofc. Bennett-Bagorio came to the defense of Officers Dowkin and Delgadillo after they filed a written complaint with Defendant Chief Correa concerning the racial discrimination they were experiencing, she was immediately retaliated against by her superiors and fellow officers, which has caused her to suffer severe emotional, physical, psychological and financial harm, as well as imminent threat of bodily injury and death. 54. The Defendants have, each with one or more of the other Defendants, including with one or more of other employees of the Defendant City & County, conspired to violate the federal and state constitutional and statutory or common law rights of Plaintiffs or otherwise to cause the Plaintiffs to suffer harm. Such conspiracy involves, among others mentioned in this Third Amended Complaint, nine categories of overt acts of misconduct: A. Endangering the Plaintiffs by failing to provide backup and cover during calls for service and vehicle stops; B. Endangering the Plaintiffs by failing to properly and timely supervise officers in the Plaintiffs chain of command to insure that such officers would adhere to the HPD policy requiring fellow officers to provide backup cover to officers, such as Plaintiffs, making traffic stops, responding to potentially dangerous service calls or otherwise being placed in harms way; 21
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 22 of 76 PageID #: 2201 C. Endangering the Plaintiffs by failing to properly and timely investigate Plaintiffs complaints of illegal discrimination and violations of HPD policy being perpetrated by their fellow officers and superiors; D. Dismantling the DUI team, thereby depriving Plaintiffs Dowkin and Delgadillo of income and a preferred work assignment; E. Depriving the Plaintiffs of equal protection of the law by imposing and enforcing rules upon them that were not equally applied to other personnel of like rank and duty assignment; F. Filing false, harassing and groundless personnel complaints against Plaintiffs without proper or timely completion of the complaint investigations; G. Fabricating and filing derogatory performance evaluations to impede and inhibit Plaintiffs professional advancement and pay raises; H. Depriving Plaintiffs of opportunities for job advancement and overtime; I. Improper demotion of Plaintiffs in seniority thereby depriving Plaintiffs of their choice of days off and work assignments. 55. HPD Standards of Conduct and policy require HPD employees to immediately report violations of law and racially discriminatory conduct committed by other officers to the appropriate divisions of the City of Honolulu 22
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 23 of 76 PageID #: 2202 Police Department and Human Resources Department. 56. HPD Standards of Conduct require the direct involvement and supervision by the Chief of Police regarding any complaint made against a person of the rank of Captain or above for violations of the Standards of Conduct or HPD policies. 57. The Defendant Chiefs were and are directly responsible for the administration and affairs of the Department, including the oversight and outcome of the investigation of the complaints of Plaintiffs in this lawsuit which include claims of violations of Articles VII and VIII of the HPD Standards of Conduct by Plaintiffs fellow and superior officers, including those standards of conduct at pp. 1, 9, 11, 15 and 16 of the HPD Standards of Conduct and at pp. 7-10 of the HPD Support Operations Policy and at p. 2 of Attachment 2 to said Policy. ESSENTIAL FACTS 58. Sgt. Dowkin was assigned to supervise a Traffic Enforcement Team (also ADriving Under the Influence@ or ADUI@ Team) for HPD District 4 from November of 2003 to August 24, 2008, and Ofc. Delgadillo became a member of the Team on January 1, 2008. The DUI Team was responsible for enforcing all traffic laws on the Windward Side of Oahu at night during the AFirst Watch@ (2100 hours (9:00 p.m.) to 0545 hours (5:45 a.m.)), especially those laws designed to keep drivers under the influence of alcohol or drugs off of the public roadways. 23
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 24 of 76 PageID #: 2203 59. It is common police knowledge that the number of stops made by officers on a DUI Team is significantly more than the number of stops made by other patrol officers on a nightly basis, which also increases the likelihood of a DUI Team officer getting assaulted, struck by a vehicle or even killed. It is also common knowledge that suspects impaired by drugs and/or alcohol pose a significant risk of harm to police officers, especially if they possess weapons or outnumber the officer making the stop. 60. Under the supervision of Sgt. Dowkin and through the efforts of Sgt. Dowkin and Ofc. Delgadillo (and other team members), the DUI Team=s performance was outstanding. Fatalities, critical collisions and court costs per DUI arrest began to drop steadily as the team became more efficient. There was also a significant reduction in major crimes throughout District 4 as a result of this increased traffic enforcement. The DUI Team also performed all traffic-related training for the District=s officers, gave safety briefings to outside agencies and dramatically increased the likelihood of apprehension of impaired drivers in the District, thus markedly improving the safety of the roadways for law-abiding citizens and their families. 61. Since 2004, Sgt. Dowkin (and later Ofc. Delgadillo after he was assigned to Sgt. Dowkin=s unit) complained to Defendant Lieutenants Kwon, Serrao and Axt and to Defendant Capt. Dolera that he and his officers were not 24
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 25 of 76 PageID #: 2204 receiving required backup cover when they made traffic stops nor were they getting required assistance when they made arrests, and these Defendants did nothing to correct this dangerous situation. 62. HPD=s standard operating procedure, consistent with standards of police operations and conduct around the country, required the dispatch of the nearest officer to provide backup cover support to any officer who radioed that he or she was making a solo traffic stop at night, in order to insure that the arresting officer=s physical safety was not jeopardized. 63. Therefore, all HPD District 4 patrol officers, including Plaintiff Ofc. Bennett-Bagorio, were obligated to respond immediately to provide backup cover to fellow officers making traffic stops, including Sgt. Dowkin (and to Ofc. Delgadillo after he joined the DUI Team), as a part of their mandatory police responsibilities. 64. As is demonstrated herein and in detail below, the mandate that officers provide each other with backup cover when making roadway traffic stops, especially at night, was deliberately and/or recklessly disregarded by the direct orders and conspiratorial misconduct of the Defendants. 65. Such misconduct was designed and accomplished with a reckless disregard for Plaintiffs= physical safety, knowing that the Plaintiffs would be deprived of protection from physical harm or even death, because of Defendants= 25
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 26 of 76 PageID #: 2205 intent to discriminate against Plaintiffs Sgt. Dowkin and Ofc. Delgadillo because of their race and against Plaintiff Ofc. Bennett-Bagorio because of her gender and in retaliation for her opposition to the race discrimination being perpetrated against Plaintiffs Dowkin and Delgadillo. 66. Such misconduct was also perpetrated by Defendants in retaliation against Plaintiffs because Plaintiffs had complained to HPD about, or, in the case of Ofc. Bennett-Bagorio opposed, the illegal race and gender discrimination and retaliation directed against each of them individually and against all of them collectively by the Defendant Officers. 67. HPD allegedly "investigated" some of Plaintiffs discrimination and retaliation complaints, yet failed to sustain such complaints, thereby condoning and encouraging the ongoing perpetration of the illegal misconduct by the Defendants. In fact, the discrimination and retaliation continued to be perpetrated by all of the Defendants even after Plaintiffs filed EEOC charges of discrimination and retaliation and even after Plaintiffs filed this litigation. 68. On July 9, 2008, Sgt. Dowkin, on behalf of himself and Ofc. Delgadillo, filed an official written complaint alleging racial discrimination perpetrated against Sgt. Dowkin and Ofc. Delgadillo by their supervisors and fellow officers, by delivering it directly to Defendant Maj. Simmons, Commander of HPD District 4, addressed for subsequent delivery to then Chief of Police, 26
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 27 of 76 PageID #: 2206 Defendant Correa. 69. When he handed the written complaint to Maj. Simmons, Sgt. Dowkin clearly explained to Maj. Simmons that he and Ofc. Delgadillo were being subjected to racial discrimination that was putting their physical safety at risk. 70. This complaint to Maj. Simmons constituted a Aprotected complaint@ for which it would be illegal for Sgt. Dowkins or Ofc. Delgadillos employer (Defendant City & County) or any officers in their chain of command or any of their fellow officers to retaliate in any manner against either Sgt. Dowkin or Ofc. Delgadillo for making such a protected complaint. 71. Notwithstanding this protection offered by the law, illegal retaliation against these Plaintiff Officers immediately commenced in the variety of forms described herein. 72. Despite being told that Sgt. Dowkin and Ofc. Delgadillo were not receiving backup cover when they made nighttime traffic stops and despite advising Sgt. Dowkin that he would speak with the dispatchers and correct the problem, Maj. Simmons merely passed the complaint on to Chief Correa and otherwise did nothing to remedy the violations of HPD policy. Maj. Simmons also retaliated against Sgt. Dowkin and Ofc. Delgadillo for making their complaint of race discrimination by immediately disbanding the DUI Team, adversely affecting their career advancement and overtime pay. 27
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 28 of 76 PageID #: 2207 73. Maj. Simmons thereafter tacitly concurred with Chief Correas failure to take any appropriate action to enforce HPD policy and protect Plaintiffs Dowkin and Delgadillo, and both of these Defendants, by their decision not to act, knowingly and deliberately exposed Sgt. Dowkin and Ofc. Delgadillo to ongoing and life-threatening harm. 74. When Sgt. Dowkin and Ofc. Delgadillo filed their July 9, 2008, written complaint of racial discrimination, HPD had no specific policy in force regarding the prohibition, prevention (including training), investigation or remediation of illegal workplace racial discrimination as required by federal and Hawai=i law and by the standard of care applied to all metropolitan police departments throughout the country. 75. Upon information and belief, no such policy has been put into place as of the date of the filing of this Third Amended Complaint. 76. In addition, for the most part, officers who were assigned to special duty assignments, such as the DUI Team, did not historically lose their seniority (in terms of benefits and assignment selection preference) when they returned to the First Watch. 77. Yet, despite having been specifically told by Defendant Kwon that they would not lose seniority upon their return to regular First Watch duty, Lt. Kwon and Sgt. Fernandez caused Sgt. Dowkin and Ofc. Delgadillo to lose their 28
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 29 of 76 PageID #: 2208 seniority status after the DUI Team was disbanded by Maj. Simmons in retaliation for their filing of a race discrimination complaint. 78. On October 14, 2008, Ofc. Bennett-Bagorio was summoned by HPD Human Resources to provide testimony regarding the racial discrimination complaint filed by Sgt. Dowkin and Ofc. Delgadillo on July 9, 2008. Ofc. Bennett- Bagorio=s testimony supported Sgt. Dowkin=s and Ofc. Delgadillo=s claims of racial discrimination, including the failure of fellow officers to provide them with backup cover on traffic stops. 79. She made it clear to her Defendant superiors that she opposed the illegal mistreatment being perpetrated against Sgt. Dowkin and Ofc. Delgadillo. 80. As a direct result of being a female who expressed opposition to the racial discrimination being perpetrated against Sgt. Dowkin and Ofc. Delgadillo by their superiors Lieutenants Kwon, Serrao and Axt, Capt. Dolera and Majors Simmons and McEntire, as well as other fellow officers, including Defendant Ofc. Kashimoto, Ofc. Bennett-Bagorio suffered retaliation from all of these Defendants. 81. These Defendants retaliated against Ofc. Bennett-Bagorio by, among other things, failing to provide her with backup cover on traffic stops (thus endangering her life), denying her critical training which would enhance her promotability and increase her income, humiliating her in front of her peers, isolating her from normal workplace social contact and otherwise intimidating her 29
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 30 of 76 PageID #: 2209 and causing her to suffer severe and extreme emotional distress. Such actions were condoned and/or ratified by the Defendant Chiefs who, upon information and belief, were made aware of the Plaintiffs complaints, including the filing of EEOC charges and this lawsuit, yet acted in concert and tacit agreement with the discrimination being perpetrated by the other Defendants by failing to take any effective action to protect Ofc. Bennett-Bagorio or the other Plaintiffs. 82. Following are categories of discrimination and/or retaliation endured by Plaintiffs which were perpetrated by Defendants, either singly or in agreement with one or more of each other, for which each perpetrator=s Defendant supervisor(s) and the City & County are also liable pursuant to the doctrine of respondeat superior: (a) failing to properly train and/or supervise and/or discipline the perpetrator(s); (b) failing to adequately investigate Plaintiffs= respective complaints; and/or (b) tacitly condoning or ratifying all or some of such illegal misconduct by failing to take effective steps to protect the Plaintiffs from harm. 83. Following are specific examples of overt acts of misconduct indicating Defendants actual or tacit agreement to discriminate and/or retaliate against Plaintiffs. 84. From 2004 to 2007, Sgt. Dowkin did not consistently get required backup cover from other officers on his traffic stops, placing him in danger and risk of physical harm. Sgt. Dowkin suspected that this failure of his supervisors 30
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 31 of 76 PageID #: 2210 and fellow officers to provide backup cover was racially motivated, yet there was no overt expression of racism until December of 2007, when Lt. Kwon made a statement to Ofc. Delgadillo about him joining Sgt. Dowkin=s DUI Team, AYou know what they say, once you go black [referring to Sgt. Dowkin], you never go back.@ This racist remark was made in the presence of other officers and peers of Sgt. Dowkin. 85. In September of 2006, Ofc. Bennett-Bagorio, who was then assigned to the District 4 motorized patrol, was directly ordered, as were the other patrol officers present, by Sgt. Fernandez to not provide backup cover to the DUI Team, in direct violation of HPD policy. When Sgt. Dowkin learned that Sgt. Fernandez had ordered Ofc. Bennett-Bagorio and other patrol officers to not provide cover for the DUI Team, he reported this irresponsible and dangerous order to Lt. Serrao who said he would Ainvestigate@ the matter. Nothing was done by Lt. Serrao to reverse this discriminatory order, and Sgt. Dowkin was left to face the risk of bodily harm and death while making uncovered traffic stops. 86. Beginning in 2006 and escalating thereafter, Lt. Kwon made racially offensive comments to Ofc. Delgadillo such as, AAre you sure you can work this job, because you don=t have a green card?@ and AHey, wetback, beaner, did you hide in a car or did you swim across the border?@ 87. Sgt. Fernandez, then Ofc. Delgadillo=s supervisor, and Lt. Kwon were 31
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 32 of 76 PageID #: 2211 close friends, and Sgt. Fernandez, either influenced by Lt. Kwon=s racial prejudice against Ofc. Delgadillo or motivated by his own racial prejudice toward Mexicans, gave Ofc. Delgadillo a poor performance evaluation for 2006 which was patently unjustified. 88. Before Ofc. Delgadillo joined the DUI Team, he would routinely, pursuant to standard police procedure and HPD policy, provide backup cover for officers on the DUI Team, including Sgt. Dowkin, when a traffic stop was made. When Sgt. Fernandez ordered all non-DUI Team patrol officers, including Ofc. Delgadillo and Ofc. Bennett-Bagorio, to not provide cover to the DUI Team, specifically Sgt. Dowkin, Ofc. Delgadillo and Ofc. Bennett-Bagorio would nevertheless provide such cover, knowing that to do otherwise would endanger Sgt. Dowkin’s life. 89. When Ofc. Delgadillo would radio dispatch that he was on his way to provide cover to Sgt. Dowkin, Sgt. Fernandez would radio Ofc. Delgadillo and order him to not provide backup cover to Sgt. Dowkin, thereby deliberately increasing Sgt. Dowkin=s risk of harm or death. (Ofc. Delgadillo received these orders from Sgt. Fernandez to not provide backup cover to Sgt. Dowkin until Ofc. Delgadillo joined the DUI Team on January 1, 2008, after which Ofc. Delgadillo also became a target of Sgt. Fernandez for the denial of backup cover.) 90. In late 2006 - early 2007, because of his discomfort with Sgt. 32
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 33 of 76 PageID #: 2212 Fernandez’s racial prejudice, Ofc. Delgadillo asked Lt. Kwon for a transfer, which was summarily denied. 91. On November 29, 2006, Ofc. Bennett-Bagorio provided necessary backup cover for a traffic stop made by Sgt. Dowkin. The next day Sgt. Fernandez criticized Ofc. Bennett-Bagorio in front of her peers for providing backup cover for Sgt. Dowkin. 92. On December 12, 2006, Sgt. Fernandez told Sgt. Dowkin in the Kailua Police Station that Ofc. Bennett-Bagorio and Ofc. Robert Daclison would not be allowed to transport subjects, administer intoxilyzer tests or assist the DUI Team in any way Auntil further notice.@ Sgt. Dowkin told Sgt. Fernandez that backup cover was essential to the safety of the DUI Team, to no avail. Sgt. Dowkin also expressed his concerns about Sgt. Fernandez=s order to Lt. Kwon and Lt. Serrao, again to no avail. Sgt. Tanaka told Sgt. Dowkin that he did not agree with Sgt. Fernandez=s order, yet did absolutely nothing to get it reversed, thereby tacitly agreeing with it. 93. On December 13, 2006, Ofc. Bennett-Bagorio assisted the DUI Team with a DUI arrest and was again threatened by Sgt. Fernandez to discontinue providing cover. 94. On January 8, 2007, Sgt. Dowkin met with Lt. Kwon, Lt. Serrao and Sgt. Fernandez at the Kaneohe Police Station conference room. During this 33
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 34 of 76 PageID #: 2213 meeting, Sgt. Dowkin was informed that Ofc. Bennett-Bagorio and Ofc. Robert Daclison were no longer allowed to assist the DUI Team. Sgt. Dowkin made it clear that this order was inappropriate because it jeopardized the safety of the officers on the DUI Team, and he offered to take either of these two officers onto the DUI Team for training purposes, but Lt. Serrao snapped at him and disparagingly remarked, AI can just order you to give Dac [Ofc. Daclison] a DUI.@ At the end of this meeting, both Lt. Kwon and Lt. Serrao intentionally permitted Sgt. Fernandez=s discriminatory and dangerous order to stand. 95. In February of 2007, Sgt. Fernandez finally permitted officers to assist the DUI Team, but this Apermission@ soon proved to be selective and temporary, and Sgt. Dowkin (and later Ofc. Delgadillo) would still be exposed to imminent risk of life-threatening harm. 96. On September 14, 2007, Sgt. Fernandez actually ordered Ofc. Delgadillo over the radio to abandon his cover of Sgt. Dowkin, leaving Sgt. Dowkin alone at the scene of the traffic stop to control two impaired males, at great peril to his physical safety. 97. On September 26, 2007, Sgt. Dowkin was not supplied with requested backup cover at a DUI traffic stop or with assistance with the arrest at the Kaneohe Station, despite Lt. Kwon=s physical presence in the Station (Lt. Kwon continued to play computer games rather than assist Sgt. Dowkin while he was processing the 34
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 35 of 76 PageID #: 2214 arrest of an intoxicated suspect alone). 98. Later, on October 31, 2007, Sgt. Dowkin met with Lt. Kwon to discuss Lt. Kwon=s failure to provide backup cover and assistance with the arrest, and Lt. Kwon refused to accept responsibility for compromising the safety of Sgt. Dowkin. Accordingly, on November 3, 2007, Sgt. Dowkin filed a complaint about this incident with Capt. Dolera. On November 10, 2007, Capt. Dolera sent Sgt. Dowkin an email stating that officer safety was fundamental in police work and that Lt. Kwon=s response to Sgt. Dowkin was Areprehensible,@ yet Capt. Dolera took no effective action to stop the retaliation, thereby tacitly agreeing with it. 99. On November 16, 2007, an HPD AInformation Notice District 4,@ was issued by the District 4 Administration, instructing all officers to watch a DVD of the AStan Cook incident,@ ostensibly in order to remind everyone of the importance of covering off their fellow officers. (The AStan Cook incident@ concerned a traffic stop made by HPD Ofc. Stan Cook on August 31, 1994, in which Ofc. Cook was involved in a shootout with the driver of the vehicle he had stopped. While making a routine traffic stop for an expired safety sticker in a residential neighborhood of Waipahu in the early morning hours, Ofc. Cook was shot 11 times with an AK-47 assault rifle wielded by the driver of the stopped vehicle. Ofc. Cook finally shot and killed the suspect. Ironically, on that very morning, Sgt. Dowkin and Ofc. Cook were on the same motorcycle detail when the shootout 35
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 36 of 76 PageID #: 2215 occurred. The need to cover one=s fellow officers on all traffic stops, no matter how innocuous the stop may seem, was indelibly implanted in Sgt. Dowkin=s consciousness. 100. Therefore, when he encountered the racial discrimination perpetrated by these Defendants which was intended to cause him and his fellow officers, Ofc. Delgadillo and Ofc. Bennett-Bagorio, to risk death or serious injury, Sgt. Dowkin was disheartened and ultimately became severely distressed. 101. The showing of the Stan Cook video was an admission by the Defendants that the chain of command was aware that Sgt. Dowkin’s complaints about not receiving backup cover were indeed true and that the chain of command did not want to deal with the problem directly, but only wanted to give lip service to the requirement of backup cover so they would not be held personally accountable should a tragedy occur. 102. On November 28, 2007, Lt. Kwon sent a Memorandum to Capt. Dolera outlining his proposed Aplan@ to address the cover issue. On December 4, 2007, Capt. Dolera reminded the Sergeants of the “importance” of providing backup cover to fellow officers. Of course, Capt. Dolera never followed up nor implemented any Aplan,@ and the failure of Sgt. Dowkin (and later Ofc. Delgadillo) to receive backup cover at potentially dangerous traffic stops continued to occur. 103. At a meeting of watch supervisors in December of 2007, Lt. Kwon 36
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 37 of 76 PageID #: 2216 sought support to disband the DUI Team (without success because of its value to HPD and the community). Lt. Kwon then disappointedly remarked to all of the supervisors present, AI finally get a chance to punch Shermon [Sgt. Dowkin] in the nose for all those [no cover complaints] he wrote, and this is the kind of support I get?,@ revealing his intent to illegally discriminate against Sgt. Dowkin and anyone associated with him. 104. At the end of 2007, Sgt. Fernandez gave Ofc. Delgadillo another unjustified and racially motivated poor performance evaluation, and when Ofc. Delgadillo protested to Lt. Kwon and Lt. Axt, he was pressured by them to Anot start a war with Fernandez over this@ and to Ajust let it go.@ 105. Lieutenants Kwon and Axt, as well as Sgt. Fernandez, repeatedly ordered Sgt. Dowkin and Ofc. Delgadillo to prepare To/From memorandums explaining their actions on nonsensical and petty complaints, blemishing their personal files with documents that made them appear to be problem employees. 106. In January of 2008, Lt. Axt replaced Lt. Kwon as the supervisor of the DUI Team. Lt. Axt immediately began to continue to hold Officers Dowkin and Delgadillo to a different standard than other officers, requiring them to conduct themselves strictly in accordance with regulations while allowing other officers, including Sgt. Fernandez, to be exempted from the same rules. 107. On January 8, 2008, Sgt. Dowkin and Ofc. Delgadillo met with Lt. 37
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 38 of 76 PageID #: 2217 Axt in his office and expressed their concerns for their physical safety because they were still not getting backup cover when making DUI and other traffic stops, despite the chain of command’s lip service to the necessity of backup cover. 108. Later in the evening on January 8, 2008, Sgt. Dowkin again met with Lt. Axt, and Lt. Axt informed Sgt. Dowkin that Sgt. Dowkin would have to attend additional training because Sgt. Dowkin=s Apresence [presumably as an African- American officer] is disruptive,@ a totally nonsensical, false and racist allegation. When Sgt. Dowkin informed Lt. Axt that he had already received the referenced training, Lt. Axt was silent and appeared to be very disappointed. (If Sgt. Dowkin was again required to attend this particular training, Lt. Axt knew that it would reflect badly on Sgt. Dowkin=s otherwise exemplary police record and would have a resultant adverse impact on his reputation, ability to be promoted and would cause consequent financial instability.) 109. On January 9, 2008, Sgt. Dowkin was summoned to attend a meeting at the Kailua Police Station with Lt. Kwon, Lt. Axt and Sgt. Fernandez, at which meeting Sgt. Dowkin was again threatened with Atraining@ which would deleteriously impact his reputation and finances if he and Ofc. Delgadillo did not comply with various petty and arbitrary orders, the accomplishment of which were not required of other officers. These orders included: (1) for Sgt. Dowkin and Delgadillo to be punctual and to sign in and out of the watch properly (Lt. Kwon, 38
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 39 of 76 PageID #: 2218 Lt. Axt, Sgt. Fernandez and other officers were often late for duty); (2) for Sgt. Dowkin and Ofc. Delgadillo to always wear proper attire while on duty (other officers, including Sgt. Fernandez, were often not in full uniform attire while on duty); and (3) for Sgt. Dowkin and Ofc. Delgadillo to not mount their blue lights on their vehicles until they arrived at the station for duty and to remove their blue lights at the station when they signed out (their blue lights had previously been mounted on their vehicles while traveling to and from work so that they could perform DUI and other traffic stops if necessary, and other officers were not subject to this new restriction). At this meeting, Sgt. Dowkin again reported that backup cover was not being provided to the DUI Team, specifically to Sgt. Dowkin and Ofc. Delgadillo, and that Ofc. Delgadillo, in fact, had been ordered by Sgt. Fernandez to not provide backup cover to Sgt. Dowkin when Sgt. Dowkin was making a traffic stop on September 14, 2007. Sgt. Dowkin expressed his concern for his safety and the safety of his fellow officers on the DUI Team. Lt. Kwon became very angry that Sgt. Dowkin voiced this concern and ordered Sgt. Dowkin to order Ofc. Delgadillo to put his complaint against Sgt. Fernandez in writing (Ofc. Delgadillo later did this, but no disciplinary action was ever taken against Sgt. Fernandez). 110. Sgt. Dowkin was also required by Lt. Axt to submit a report on a three year-old Miscellaneous Public Complaint case he had handled even though such a 39
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 40 of 76 PageID #: 2219 complaint did not require a written report. 111. Notwithstanding complaining about the lack of backup cover directly to their superiors throughout the whole of 2008, Sgt. Dowkin and Ofc. Delgadillo continued to be deprived of backup cover on stops and arrests despite their radio requests, even when there were plenty of officers available to provide them with assistance (on at least two occasions, numerous on-duty and available officers were observed eating at the Zippy=s restaurant in Kailua, deliberately choosing to not respond to Sgt. Dowkin=s or Ofc. Delgadillo=s calls for backup cover). 112. Specific instances of the failures to cover are as follows: On February 22, 2008; February 29, 2008; March 8, 2008, at which time Lt. Axt was the officer on duty; March 16, 2008, March 26, 2008, at which time Lt.=s. Axt and Kwon and Sgt. Fernandez were on duty; April 6, 2008, at which time Lt. Axt and Sgt. Tanaka were on duty; April 19, 2008, Sgt. Dowkin was not provided with backup cover for a traffic stop and arrest, despite his request for same, at which time Lt. Axt and Sgt. Tanaka were on duty; on two occasions on June 7, 2008, Sgt. Dowkin and Ofc. Delgadillo were not provided with assistance in the field or at the station, and on another occasion on June 7, 2008, Sgt. Dowkin was not provided with backup in the field or assistance at the station, at which time Lt. Axt and Sgt. Fernandez were on duty; twice on July 30, 2008, Sgt. Dowkin was not provided with backup cover at which time Lt. Axt, Sgt. Fernandez and Ofc. 40
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 41 of 76 PageID #: 2220 Kashimoto were on duty; twice on August 2, 2008, Sgt. Dowkin and Ofc. Delgadillo were not provided with backup cover for a traffic stop and arrest, despite their request for same; on August 3, 2008, Sgt. Dowkin was not provided with backup cover, at which time Lt. Kwon was the officer in charge; once each on August 15, 2008, Ofc. Kashimoto was directly responsible for failure to cover Delgadillo (Ofc. Kashimoto had often disparagingly referred to Ofc. Delgadillo as a Abig-nosed Mexican” and to Sgt. Dowkin as “Apopolo” (pejorative Hawai’ian slang for “African-American”)); on August 16, 2008, Sgt. Dowkin; on August 21, 2008, Sgt. Dowkin and Ofc. Delgadillo; on August 23, 2008, Sgt. Dowkin; then twice more on August 23, 2008, both Sgt. Dowkin and Ofc. Delgadillo were not provided with backup cover on two simultaneous arrests; on August 24, 2008, Ofc. Delgadillo; on August 27, 2008, Ofc. Delgadillo; and on August 29, 2008, Ofc. Delgadillo, at which time Lt. Serrao was the officer in charge. 113. In May of 2008, Ofc. Delgadillo was subjected by Lt. Kwon, Lt. Axt and Sgt. Tanaka to petty and harassing requests regarding his uniform or vehicle use, and Ofc. Leroy Meheula told him that the mistreatment was directed at him because he was a AMexican.@ 114. On July 9, 2008, Sgt. Dowkin filed the written (and protected) complaint of race discrimination described above with Maj. Simmons. 115. On the very same day, Lt. Kwon made racially offensive statements to 41
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 42 of 76 PageID #: 2221 Ofc. Delgadillo indicating that AMexicans can only drive BMW=s or Mercedes if they are stolen.@ 116. Lt. Kwon also made a viciously racist remark to Ofc. Delgadillo disparaging Ofc. Delgadillo=s family, whom he was helping to immigrate into the United States, AWhy don=t you fuckin= get a coyote [illegal human trafficker] and do it the >traditional= way [illegally have his family cross the border].@ 117. After Lt. Kwon learned of the filing of the racial discrimination complaint, he would disparagingly address Ofc. Delgadillo in front of other HPD officers and employees as ASenorita,@ further evidencing his prejudice against Ofc. Delgadillo because of his race/nationality. 118. Immediately after Sgt. Dowkin and Ofc. Delgadillo filed their discrimination complaint and in obvious retaliation for their opposition to illegal racial discrimination, one or more of these Defendants (including Maj. Simmons) caused the DUI Team to be disbanded, depriving Officers Dowkin and Delgadillo of overtime income and causing them to lose their seniority. 119. On October 14, 2008, Ofc. Bennett-Bagorio was summoned by HPD Human Resources to provide testimony regarding the racial discrimination complaint filed by Sgt. Dowkin and Ofc. Delgadillo on July 9, 2008. As stated above, Ofc. Bennett-Bagorio=s testimony supported the claims of racial discrimination. 42
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 43 of 76 PageID #: 2222 120. Immediately after Ofc. Bennett-Bagorio’s supposedly confidential testimony was given, it was leaked to her chain of command, and illegal retaliation against her ensued immediately thereafter. 121. On November 10, 2008, Sgt. Dowkin and Ofc. Delgadillo each filed Charges of Racial Discrimination and Retaliation with the United States Equal Opportunity Commission Office in Honolulu and with the Hawai=i Civil Rights Commission, which Charges were subsequently amended from time to time, as additional acts of retaliation continued to be perpetrated by Defendants against Officers Dowkin and Delgadillo. 122. On November 23, 2008, Ofc. Bennett-Bagorio was verbally embarrassed by Sgt. Fernandez=s remarks made over the police radio and overheard by an audience of her peers. 123. On December 1, 2008, Ofc. Bennett-Bagorio was not provided with backup cover for her response to a temporary order violation incident (involving the potential for further violence), despite her request for same. 124. On February 13, 2009, Ofc. Bennett-Bagorio received no backup cover, despite her request for same, as her cover was deliberately called off by Ofc. Kashimoto. 125. On February 18, 2009, Sgt. Tanaka told Ofc. Bennett-Bagorio in an angry tone, AI hate that fuckin= Rico [Ofc. Delgadillo].@ 43
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 44 of 76 PageID #: 2223 126. On February 19, 2009, Ofc. Bennett-Bagorio was wrongfully denied participation in an intoxilyzer test class, and her slot was then given to a male officer, all because she was a woman and in retaliation for her opposition to illegal discrimination, causing her to suffer embarrassment, emotional distress and financial harm. 127. On February 20, 2009, Ofc. Bennett-Bagorio was told by Ofc. Kashimoto that Capt. Dolera had wrongfully breached the confidentiality of her protected complaint of discrimination and retaliation by disclosing, without her consent, its full contents to Ofc. Kashimoto, a fellow line officer who was perpetrating discrimination against her in conspiracy with her Defendant supervisors. 128. In February of 2009, Sgt. Dowkin and Ofc. Delgadillo were falsely accused of selling tamales while on duty. (The retaliatory Ainvestigation@ was still Apending@ at the time of the original filing of this lawsuit and was instituted by HPD in an effort to discourage these officers from pursuing legal redress for their racial discrimination and retaliation claims.) On November 15, 2011, HPD found that Ofc. Delgadillo was guilty of this offense, despite all impartial evidence to the contrary. 129. On April 28, 2009, Maj. Simmons, by way of written memorandum, ordered Ofc. Delgadillo to exchange his vehicle=s Ablue light bar@ for a less- 44
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 45 of 76 PageID #: 2224 luminous Asingle strobe light@ which would result in Ofc. Delgadillo being less safe at night when making traffic stops. On or about April 21, 2009, Ofc. Bennett- Bagorio received a false and negative performance evaluation authored by Sgt. Fernandez and approved by Lt. Kwon and Capt. Dolera, which was prepared in retaliation for her opposition to the racial discrimination perpetrated against Sgt. Dowkin and for filing a written protected complaint of discrimination and retaliation with HPD on February 20, 2009. 130. On April 28, 2009, Ofc. Bennett-Bagorio filed a Charge of Gender Discrimination and Retaliation against the Honolulu Police Department, based upon Defendants’ violation of her federal and Hawai=i state civil rights concerning gender discrimination and retaliation (for opposing the racial discrimination perpetrated by HPD and the other Defendants against Sgt. Dowkin and Ofc. Delgadillo), with the United States Equal Opportunity Commission and the Hawai=i Civil Rights Commission. 131. In May of 2009, Sgt. Dowkin was ordered to rewrite Ofc. Delgadillo=s performance rating, which he did, giving Ofc. Delgadillo a A5@ rating. Maj. Simmons, in conspiracy with Asst. Chief Tamashiro, Maj. McEntire and Mr. Ah Loo, thereafter reduced the rating to a A4@ and did not permit Ofc. Delgadillo to respond to the arbitrary reduction, in retaliation against Ofc. Delgadillo for filing his complaint of discrimination and retaliation. The stress inflicted upon Sgt. 45
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 46 of 76 PageID #: 2225 Dowkin by the Defendants in connection with this order, in addition to the accumulation of the events described above perpetrated by the Defendants, caused Sgt. Dowkin to be hospitalized for a heart ailment for the first time in his life. The events described below, especially those perpetrated by Defendant Kashimoto, exacerbated this physical injury. 132. On June 3, 2009, at a shift briefing conducted by Sgt. Fernandez, with Sgt. Dowkin and Lt. Axt present, openly racist and sexist comments were permitted by Sgt. Fernandez and Lt. Axt without reprimand, indicating their discriminatory intent toward women and African-Americans. 133. On June 4, 2009, Lt. Axt authored an email in which he admitted Ofc. Bennett-Bagorio=s complaint about his preventing her from going to a class that would qualify her for earning more overtime using the intoxilizer for drunk drivers. 134. The failure to cover Plaintiffs on traffic stops and investigative calls continued: July 3, 2009, Sgt. Dowkin was not provided with backup cover for a traffic stop and arrest, despite his request for same, while the watch commanders and officers were eating at the Kailua Zippy=s Restaurant; on August 1, 2009, Sgt. Dowkin received no back-up at which time Lt. Axt was available, yet failed to respond. 135. In September of 2009, Sgt. Dowkin was wrongfully given a less-than- deserved performance rating by Defendants Lt. Axt and Maj. Simmons in 46
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 47 of 76 PageID #: 2226 retaliation for his filing of protected complaints of discrimination and retaliation. 136. On two occasions on December 3, 2009, Ofc. Bennett-Bagorio was not provided with backup cover as required, despite her request for same. 137. At approximately 3 a.m. on October 11, 2010, Sgt. Dowkin was put in danger of bodily harm by Defendant Ofc. Colby Kashimotos deliberate and/or malicious failure to promptly provide backup cover and by Defendant Kashimoto=s deliberate and/or malicious failure to actively engage in Sgt. Dowkins assistance at the scene of a stabbing. 138. At approximately 1:30 a.m. on October 18, 2010, Ofc. Bennett- Bagorio suffered a serious injury because her fellow HPD officers, including her supervising officer on scene, Defendant Sgt. Ralstan Tanaka, failed to provide her with backup cover when she entered a local bar to respond to a report of an altercation. Ofc. Bennett-Bagorio was physically attacked by a suspected male felon, causing her to suffer a debilitating injury to her lumbar spine while shielding her firearm from her assailant. 139. Defendant Tanaka was the supervising officer on scene, and he deliberately and/or maliciously and/or negligently failed to order his subordinate officers to provide back-up cover to Ofc. Bennett-Bagorio, knowing that she would likely suffer harm as a result and thus causing her to suffer said physical injury. 140. In April, 2011, while undergoing his deposition, under oath, Lt. Kwon 47
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 48 of 76 PageID #: 2227 admitted making racially derogatory remarks, claiming they were “in jest.” 141. Other officers have testified in this case that they heard both Lt. Kwon and Sgt. Fernandez use racially derogatory remarks towards Sgt. Dowkin and Ofc. Delgadillo that were definitely not in jest. 142. In November of 2011, the Defendant City via HPD informed Plaintiff Dowkin that all of his complaints of racial discrimination were not sustained against any of the Defendants, despite all of the aforementioned facts, thereby confirming the existence of a conspiracy to discriminate and retaliate against Plaintiff Dowkin by the Defendants. FIRST CAUSE OF ACTION Violations of Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991 Discrimination in Terms and Conditions of Employment Because of Race and Gender 42 U.S.C., Section 2000e-2, et seq. (All Plaintiffs Against Defendant City & County) 143. Plaintiffs reallege and incorporate by reference every allegation stated herein. 144. Title VII of the Civil Rights Act of 1964, as amended by the Civil Rights Act of 1991, 42 U.S.C., Section 2000e-2, et seq., prohibits discrimination by this Defendant against its employees, Plaintiffs herein, regarding the terms and conditions of Plaintiffs employment, because of Plaintiffs race and, in the case of 48
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 49 of 76 PageID #: 2228 Ofc. Bennett-Bagorio, gender, and prohibits retaliation against Plaintiffs for making protected complaints of discrimination (in Ofc. Bennett-Bagorios case, for protesting the unlawful discrimination perpetrated against the other Plaintiffs and for complaining of gender discrimination). This statute is intended to protect the class of individuals such as Plaintiffs who are employed by this Defendant. 145. Defendant City & County, by and through its employees and agents, including the individual Defendants, has violated and continues to violate this statute by permitting, enabling, directing, facilitating and/or ratifying pervasive and unlawful discrimination against: (1) Plaintiffs Sgt. Dowkin and Ofc. Delgadillo in the terms and conditions of their employment with the City & County because of these Plaintiffs respective racial derivations/national origins; (2) Plaintiff Ofc. Bennett-Bagorio because of her gender; and (3) retaliation against all Plaintiffs because they complained about and/or opposed unlawful discrimination, as evidenced by the misconduct described above, all of which evidence illegal disparate treatment, hostile work environment and illegal retaliation. 146. The violations of this statute by Defendants, while acting within the course and scope of their employment with the City & County, have resulted and continue to result in damage to Plaintiffs, to include, but not limited to, loss of front and back pay and other economic loss, emotional distress and fear of bodily 49
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 50 of 76 PageID #: 2229 harm and death and injury to reputation, for which Plaintiffs are entitled to recover from this Defendant. 147. In addition, these Defendants, while acting within the course and scope of their employment with the City & County have inflicted and continue to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from this Defendant an additional award of punitive damages to be imposed by the jury in order to punish this Defendant for its illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. SECOND CAUSE OF ACTION Violations of Title VI of the Civil Rights Act of 1964, Discrimination Under Federally Assisted Programs Because of Race, Color or National Origin 42 U.S.C., Section 2000d, et seq. (Plaintiffs Sgt. Dowkin and Ofc. Delgadillo Against Defendant City& County) 148. Plaintiffs reallege and incorporate by reference every allegation stated herein. 149. Title VI of the Civil Rights Act of 1964, 42 U.S.C., Section 2000d, et 50
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 51 of 76 PageID #: 2230 seq., prohibits discrimination by this Defendant against these Plaintiffs under federally assisted programs because of these Plaintiffs= race, color or national origin and prohibits retaliation against these Plaintiffs for making protected complaints of such discrimination. 150. This statute is intended to protect the class of individuals such as these Plaintiffs who are employed by this Defendant, and upon information and belief, this Defendant receives federal assistance. 151. Defendant City & County has violated and continues to violate this statute by permitting, enabling, directing, facilitating and/or ratifying pervasive and unlawful racial and national origin discrimination against Plaintiffs Sgt. Dowkin and Ofc. Delgadillo in the terms and conditions of their employment with this Defendant because of these Plaintiffs respective racial derivations, color and/or national origins and because of the Defendants= acts of retaliation against these Plaintiffs because they complained about and/or opposed unlawful discrimination, as evidenced by the misconduct described in above. 152. The violations of this statute by these Defendants, accomplished by and through the other individually named Defendants, have resulted and continue to result in damage to Plaintiffs, to include, but not limited to, loss of front and back pay and other economic loss, emotional distress and fear of bodily harm and death and injury to reputation, for which Plaintiffs are entitled to recover from 51
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 52 of 76 PageID #: 2231 these Defendants. 153. In addition, this Defendant has inflicted and continues to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from this Defendant an additional award of punitive damages to be imposed by the jury in order to punish Defendant for its illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. THIRD CAUSE OF ACTION Violations of the Hawai’i Civil Rights Law Denial of Equal Protection and Due Process of Law; and Discrimination in the Terms and Conditions of Employment Because of Race and Gender Hawai=i Revised Statutes, Section 378-2 (All Plaintiffs Against Defendant City & County; and Against Defendants Tanaka, Kashimoto, Fernandez and Kwon with respect to Section 378-2(3)) 154. Plaintiffs reallege and incorporate by reference every allegation stated herein. 155. Defendants have deprived and continue to deprive Plaintiffs of the aforestated rights, privileges and protections, causing Plaintiffs to suffer harm and 52
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 53 of 76 PageID #: 2232 fear of serious bodily injury or even death. Such deprivation has been and is currently perpetrated by Defendants through the denial of Plaintiffs rights to due process, equal protection and free speech by Defendants systemic, pervasive, egregious and life-threatening illegal discrimination and retaliation because of Plaintiffs race and, in the case of Ofc. Bennett-Bagorio, gender. 156. Defendants have violated and continue to violate these statutes by aiding, abetting, inciting, compelling, coercing, permitting, enabling, directing and/or ratifying pervasive and unlawful (1) discrimination and harassment against Plaintiffs Officers Dowkin and Delgadillo, in the terms and conditions of their employment with these Defendants because of Plaintiffs respective racial derivations/national origins, (2) discrimination and harassment against Plaintiff Ofc. Bennett-Bagorio, in the terms and conditions of her employment with these Defendants because of her gender and (3) retaliation against all Plaintiffs because they complained about and/or opposed unlawful racial and/or gender discrimination and/or harassment. The individual Defendants, in perpetrating the foregoing, were motivated by malice and not by an otherwise proper purpose. 157. The violations of these statutes by Defendants have resulted and continue to result in damage to Plaintiffs, to include, but not limited to, front and back pay and other economic loss, emotional distress and fear of bodily harm and death and injury to reputation, for which Plaintiffs are entitled to recover from 53
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 54 of 76 PageID #: 2233 these Defendants. 158. In addition, these Defendants have inflicted and continue to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from these Defendants an additional award of punitive damages to be imposed by the jury in order to punish Defendants for their illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. FOURTH CAUSE OF ACTION Negligent Training (All Plaintiffs Against Tanaka, Kwon, Fernandez and the City & County) and Negligent Retention, Failure to Report and Investigate (All Plaintiffs Against Kashimoto, Tanaka, Kwon, Fernandez and the City & County) 159. Plaintiffs reallege and incorporate by reference every allegation stated herein. 160. The City & County, Lt. Kwon, Sgt. Tanaka and Sgt. Fernandez, by virtue of their administrative and supervisory roles, owed duties to Plaintiffs to effectively and adequately implement anti-discrimination policies and procedures and, in connection therewith, to train and supervise employees of HPD (1) 54
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 55 of 76 PageID #: 2234 regarding federal and state prohibitions against illegal racial and gender discrimination and retaliation and (2) regarding the development and application of policies, procedures and systems designed to insure the physical safety of motorized patrol officers, such as Plaintiffs, when making traffic stops or investigating other crime scenes by, among other things, insuring mandatory, adequate and immediate backup cover. The City is responsible for the development of effective anti-discrimination policies and procedures to prevent illegal discrimination and to terminate and not retain employees who violate such policies and procedures. Lt. Kwon, Sgt. Tanaka and Sgt. Fernandez are responsible and mandated by HPD Standards of Conduct to report illegal discrimination when encountered, to investigate illegal discrimination when reported or discovered, to punish illegal discrimination and to remediate the consequences of illegal discrimination. 161. The City, Lt. Kwon, Sgt. Tanaka and Sgt. Fernandez also owed duties to Plaintiffs to effectively and adequately investigate all complaints made by Plaintiffs concerning alleged illegal discrimination and retaliation and concerning violations of HPD policies and procedures with respect to discipline and safety and, in the event any such investigation revealed the commission of such misconduct by employees of HPD, to immediately discipline said employees or seek to terminate and not retain their employment with HPD. Ofc. Kashimoto 55
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 56 of 76 PageID #: 2235 owed a duty to Plaintiffs to abide by the aforementioned policies and practices so as not to endanger Plaintiffs. 162. The City=s failure to properly investigate and sustain Plaintiffs= complaints regarding discrimination and retaliation despite the abundant testimony and evidence establishing that these acts occurred does not meet the standard of care and evidences its negligence. 163. Defendants= negligent acts and omissions as set forth hereinabove breached all of the aforesaid duties, resulting in harm to Plaintiffs. 164. The breaches of these duties by Defendants have resulted and continue to result in damage to Plaintiffs, to include, but not limited to, front and back pay and other economic loss, emotional distress and fear of bodily harm and death and injury to reputation, for which Plaintiffs are entitled to recover from these Defendants. 165. In addition, these Defendants have inflicted and continue to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from these Defendants an additional award of punitive damages to be imposed by the jury in order to punish Defendants for their alleged illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their 56
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 57 of 76 PageID #: 2236 employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. The individual Defendants, in perpetrating the foregoing, were motivated by malice and not by an otherwise proper purpose. FIFTH CAUSE OF ACTION Intentional Infliction of Emotional Distress (All Plaintiffs Against Tanaka and Kashimoto; Plaintiffs Dowkin and Delgadillo Against Axt; and Plaintiff Bennett-Bagorio Against Fernandez) 166. Plaintiffs reallege and incorporate by reference every allegation stated herein. 167. By committing the acts and omissions described above, Defendants Tanaka and Kashimoto inflicted emotional distress on all of the Plaintiffs; Defendant Axt inflicted emotional distress on Plaintiffs Dowkin and Delgadillo; and Defendant Fernandez inflicted emotional distress on Plaintiff Bennett-Bagorio (regarding his intentional November 28, 2011entry into Ofc. Bennett-Bagorio’s secure HPD workplace on June 2, 2011, described in Paragraph 49 above). 168. The acts of these Defendants as alleged herein were and continue to be extreme, outrageous, intentional, malicious and/or deliberately calculated to cause and did cause Plaintiffs to suffer anxiety, severe and extreme emotional and physical distress and suffering. All of Defendants= conduct was and is still being 57
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 58 of 76 PageID #: 2237 accomplished with a willful, wanton and/or reckless disregard of the consequences to Plaintiffs= physical and economic welfare, rights and feelings. 169. Defendants’ misconduct has resulted and continue to result in damage to Plaintiffs, to include, but not limited to, front and back pay and other economic loss, emotional distress and fear of bodily harm and death and injury to reputation, for which Plaintiffs are entitled to recover from these Defendants. 170. In addition, these Defendants have inflicted and continue to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from these Defendants an additional award of punitive damages to be imposed by the jury in order to punish Defendants for their illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. The individual Defendants, in perpetrating the foregoing, were motivated by malice and not by an otherwise proper purpose. 58
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 59 of 76 PageID #: 2238 SIXTH CAUSE OF ACTION Negligent Infliction of Emotional Distress (Plaintiff Dowkin Against City & County, Kwon and Fernandez; Plaintiff Bennett-Bagorio Against City & County and Tanaka) 171. Plaintiffs reallege and incorporate by reference every allegation stated herein. 172. By committing the acts described above, Defendants City & County, Kwon and Fernandez inflicted emotional distress on Plaintiff Dowkin resulting in physical injury to Plaintiff Dowkin, and Defendants City & County and Tanaka inflicted emotional distress on Plaintiff Bennett-Bagorio resulting in physical injury to Plaintiff Bennett-Bagorio. 173. Defendants, in their special relationships with Plaintiffs, had the duty to exercise ordinary care regarding Plaintiffs’ safety. 174. Defendants negligently breached their duties to Plaintiffs, thus causing Plaintiffs to suffer emotional distress and associated physical injury. 175. In committing the negligent acts and omissions herein alleged, Defendants engaged in courses of conduct which were grossly negligent, extreme and outrageous. 176. These Defendants knew, or in the exercise of reasonable care should have known, that the foregoing conduct would cause Plaintiffs to suffer severe and extreme emotional distress and physical injury. Defendants owed Plaintiffs a duty 59
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 60 of 76 PageID #: 2239 of care not to cause Plaintiffs to undergo such distress or to suffer physical injury in connection therewith, yet Defendants breached that duty of care. 177. The breaches of these duties by Defendants have resulted and continue to result in damage to Plaintiffs, to include, but not limited to, front and back pay and other economic loss, emotional distress and fear of bodily harm and death and injury to reputation, and pain and suffering and physical impairment for which Plaintiffs are entitled to recover from these Defendants. 178. In addition, these Defendants have inflicted and continue to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from these Defendants an additional award of punitive damages to be imposed by the jury in order to punish Defendants for their illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. The individual Defendants, in perpetrating the foregoing, were motivated by malice and not by an otherwise proper purpose. 60
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 61 of 76 PageID #: 2240 SEVENTH CAUSE OF ACTION Conspiracy to Interfere with Civil Rights 42 U.S.C., Section 1985 (All Plaintiffs Against all Defendants) 179. Plaintiffs reallege and incorporate by reference every allegation stated herein. 180. To establish a Section 1985 conspiracy claim, the plaintiff must show: A[1] the existence of a conspiracy to deprive the plaintiff of the equal protection of the laws; [2] an act in furtherance of the conspiracy; and [3] a resulting injury.@ Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir.1998). 181. The Defendants, acting individually and in their capacities as supervisory and administrative officials of the City & County and its Police Department (HPD), conspired, planned, and agreed, each with one or more of the others, to violate the rights of the Plaintiffs, and to retaliate against, harass, intimidate and/or cause economic and psychological injury to the Plaintiffs. See Dooley v City of Philadelphia, 153 F.Supp.3d 628, 661 (E.D.Pa.2001). 182. Defendants, each with one or more of the others, verbally and/or tacitly by their acts and/or omissions, agreed to the commission of the aforesaid wrongful acts perpetrated against the Plaintiffs, which wrongful acts caused Plaintiffs to suffer the above-described harm and damage, and Defendants are therefore jointly and severally liable to Plaintiffs for all resulting harm and damage suffered by 61
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 62 of 76 PageID #: 2241 Plaintiffs. 183. Each Defendant was aware that one or more of the other Defendants planned to not provide Plaintiffs with backup cover pursuant to HPD policy and/or otherwise retaliate against Plaintiffs for making protected complaints of race and gender discrimination and retaliation, yet each of the Defendants agreed, by their acts and/or omissions and/or by their tacit consent and/or ratification of such misconduct, that said wrongful acts nevertheless be committed. 184. Under color of law, prejudiced against race and gender and in retaliation for Plaintiffs Dowkin’s and Delgadillo’s race discrimination complaint and Bennett-Bagorio’s gender discrimination complaint, all of the Defendants committed the acts and/or omissions described above, with animus, and in furtherance of a conspiracy to deprive all Plaintiffs of their constitutional rights of due process and equal protection of the laws of the United States. 185. The above-described acts and omissions of the Defendants constitute a violation of those rights by failing to prevent disparate discriminatory mistreatment against Plaintiffs, by permitting a hostile work environment to exist for Plaintiffs, by allowing illegal race and gender discrimination against Plaintiffs to interfere with the enforcement of workplace rules and regulations, by failing to prevent harassment against Plaintiffs in the workplace and by failing to prevent retaliation against Plaintiffs for making protected complaints about discrimination, all 62
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 63 of 76 PageID #: 2242 protections guaranteed to the Plaintiffs by substantive equal protection and due process provisions of the Fourteenth Amendment to the Constitution of the United States and of the Hawai’i Constitution. 186. HPD Standards of Conduct require that personnel complaints that involve violations of those Standards be submitted to the HPD Administrative Review Board after they are reviewed by the Division Commander who commands the employee involved. 187. The Chief of Police, according to the City and County Employment Standards and HPD Standards of Conduct, is required to direct, control, train, equip, supervise and ensure that those rights granted to HPD employees pursuant to the constitutions of the State of Hawai=i and the United States are protected. 188. In his deposition, Chief Correa admitted that the ultimate responsibility for decisions in the Honolulu Police Department regarding disciplinary actions and enforcement of rules and regulations lies with the Chief of Police. “I’m the manager, administrator and where the buck stops at the police department as to the chief.” He testified that the command staff that he promoted were selected by him because of his agreement and concurrence with their abilities to carry out those duties he delegates, including decisions on disciplinary matters, enforcement of policies and practices and the protection of those constitutional rights described above. 63
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 64 of 76 PageID #: 2243 189. Furthermore, he testified that the memorandums pertaining to the actions of his subordinate command officers reflect a signature of each command officer in the chain of command between the Chief of Police and the level upon which the decision and or action was made or initiated. 190. The significance of the signature is to verify that the command officer has reviewed, concurs and will abide by the decision or procedure discussed in the memorandum. 191. On July 9, 2008, Sgt. Dowkin submitted his official complaint of racial discrimination directly to Chief Correa, via Maj. Simmons and Assistant Chief Tamashiro. 192. When Sgt. Dowkin submitted on July 9, 2088, his and Ofc. Delgadillo’s first race discrimination complaint (involving life-threatening failures to provide backup cover) to Chief Correa via the chain of command, all command officers (Maj. Simmons, Assistant Chief Tamashiro) involved in the handling of such complaint were required to acknowledge the complaint and concur with whatever action or inaction that was ultimately taken in response thereto. 193. Therefore, all of these Defendants tacitly agreed and ratified that the “best” response to such a serious complaint was to only show the Stan Cook video, which response was woefully inadequate to address the serious nature of the claims these Plaintiffs were making. 64
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 65 of 76 PageID #: 2244 194. These Defendants gave lip service to the Plaintiffs’ no cover complaint by only issuing memorandums reminding officers of their obligation to provide cover, but never initiated any adequate investigation or made any immediate and affirmative effort to insure that Plaintiffs were receiving required backup cover, despite ongoing incidents of failures to provide cover. 195. These Defendants, by their inaction and/or totally inadequate response, therefore tacitly condoned and/or ratified the violations of HPD policy and Plaintiffs’ rights. 196. In November of 2011, Sgt. Dowkin received notice that HPD had failed to sustain his complaints of racial discrimination, yet the City continues to this date to allow discrimination and retaliation to be perpetrated against the Plaintiffs by the Defendants still employed by the City. 197. The individual Defendants in the chain of command at the time Sgt. Dowkin made his initial complaints about the failure of his supervisors and fellow officers to provide backup cover were Defendants Lt.’s Kwon, Axt and Serrao, Capt. Dolera, Maj. Simmons, Assistant Chief Tamashiro and Chief Boisse Correa. 198. When subsequent complaints were made, the same chain of individuals were involved until the current Chief of Police, Louis Kealoha, took over as Chief in November of 2009. 199. The Chief of Police directly supervises the Professional Standards 65
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 66 of 76 PageID #: 2245 Office (PSO). This office investigates personnel complaints such as those made against Sgt. Dowkin and Ofc. Delgadillo for allegedly selling tamales while on duty, the discrimination complaints made by the three Plaintiffs and the complaints made about the failures to provide backup cover for Sgt. Dowkin and Ofc. Delgadillo. 200. The complaint about the alleged sale of tamales, pursued by Maj. Simmons in conjunction with Assistant Chief Tamashiro, Lieutenant=s Kwon and Serrao, Sergeants Fernandez and Tanaka, Ofc. Kashimoto and Capt. Dolera, would have been overseen by Chief Correa himself. 201. The contrivance of this complaint, initiated by Ofc. Kashimoto, Sgt. Tanaka and others, furthered by Lt. Serrao, Capt. Dolera and Maj. Simmons, represents an agreement to fabricate and perpetuate that accusation in order to retaliate against the Plaintiffs for complaining about racial discrimination. 202. Chief Kealoha succeeded Chief Correa in November of 2009 as Chief of Police. In February of 2010, this lawsuit was filed, and Chief Kealoha was served with the complaint, along with the subordinate command officers who are also Defendants in this matter. 203. At no time before or after the filing of the lawsuit did anyone in the chain of command, from Sgt. Fernandez through all of the Defendants up to and including Chief Correa and Chief Kealoha, do anything to separate the parties, 66
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 67 of 76 PageID #: 2246 prevent retaliation or enforce the rule requiring officers to provide backup cover on traffic stops and police calls. This tacit agreement among all of the individual Defendants to do nothing in these regards led to the unnecessary and completely avoidable injuries sustained by Plaintiffs Dowkin and Bennett-Bagorio. 204. Upon information and belief, and discoverable only if the Court permits the depositions of Chief Correa and Chief Kealoha, following the filing of Plaintiffs’ EEOC complaints in 2008 and 2009 and the filing of the lawsuit in February of 2010, one or more of the Defendants met, conferred and/or agreed to permit the Plaintiffs to remain at risk of harm, knowing that harm to them would likely occur as a result. 205. According to the letter dated September 13, 2011, informing Sgt. Dowkin of the disposition of his complaint No. 11-0025, the HPD “investigation” was reviewed by the Administrative Review Board. This board is comprised of staff officers below the rank of Chief and above the rank of Division Commander. The Chief himself must approve the final disposition concerning the Plaintiffs’ complaints. It is logically inferred that Chief Kealoha and the command level staff concurred with the disposition that nothing be done in response to Plaintiffs’ complaints of discrimination and retaliation nor to take any action to separate the Plaintiffs. This conspiracy “to do nothing” has caused and will continue to cause the Plaintiffs to suffer harm. 67
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 68 of 76 PageID #: 2247 206. On or about July 9, 2008, Assistant Chief Tamashiro was the direct supervisor of Maj. Simmons, who supervised Capt. Dolera, who supervised Lieutenant=s Axt, Sorreo and Kwon. 207. After the complaint alleging discrimination was given by Sgt. Dowkin to Maj. Simmons on July 9, 2008, Maj. Simmons met with Assistant Chief Tamashiro, and Maj. Simmons then forwarded the complaint to Chief Correa, and they all apparently agreed that nothing would be done to separate the Plaintiffs from the alleged offending officers in the HPD workplace so that no further harm to Plaintiffs would occur. As a result of this agreement to do nothing, harm did, in fact, occur, including the infliction of additional emotional distress and objective physical injury upon Plaintiffs. 208. It is known that Maj. Simmons and Assistant Chief Tamashiro met and agreed to order Sgt. Dowkin to revise and downgrade Ofc. Delgadillo=s performance evaluation for the year 2008-2009. Other Defendants who were involved in the agreement to have Sgt. Dowkin revise that performance evaluation were Defendants Maj. John McEntire, Mr. Pat Ah Loo, Capt. Dolera, Lt. Axt and Lt. Serrao. These Defendants were all named in the Ae-mail chain@ attached to Ofc. Delgadillo’s downgraded performance evaluation, reflecting each of their approval and concurrence with the retaliatory downgrade. 209. As a result of the complaints Sgt. Dowkin made about no cover and 68
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 69 of 76 PageID #: 2248 racial discrimination, Maj. Simmons, Lt.=s Kwon and Axt, Sgt. Fernandez and Pat Ah Loo met and agreed that Sgt. Dowkin be sent to CID (because he was “disruptive”), which is an assignment that is considered to be a punishment and which would result in a pay cut because of the lack of any opportunity for Sgt. Dowkin to earn overtime. 210. On October 28, 2008, Maj. Simmons ordered Capt. Dolera to order Lt. Kwon to file a complaint against and to investigate Sgt. Dowkin for a supposedly tardy submission of a single overtime card: more conspiratorial agreement; more overt acts in furtherance thereof. 211. Maj. Simmons then falsely represented to the EEOC investigator that Sgt. Dowkin had been disciplined for the tardy timecard submission, when in fact, it was Lt. Kwon who was disciplined for failure to timely complete the investigation of that supposed violation. 212. Maj. Simmons also met with Capt. Dolera and agreed to limit the overtime that Sgt. Dowkin and Ofc. Delgadillo were incurring as a result of their DUI arrests, while allowing other officers to exceed the supposed limit of overtime. 213. On January 18, 2007, Lt.=s Kwon and Serrao, along with Sgt. Fernandez, met with Sgt. Dowkin and informed him that they had agreed that Ofc. Bennett-Bagorio and another officer were to be ordered not to assist the DUI team, thereby evidencing a conspiratorial agreement to deny mandated backup to 69
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 70 of 76 PageID #: 2249 Plaintiffs. 214. In January, 2008, Maj. Simmons, Lt. Kwon and Lt. Axt agreed to selectively enforce the HPD rule that officers not drive to and from work or other non-police functions with their blue lights mounted upon their vehicles. They ordered only Sgt. Dowkin and Ofc. Delgadillo to remove their blue lights at the end of their shift and not to again affix them to their vehicles until they returned to their duty assignment, while allowing other officers and even themselves to violate this “rule.” 215. Maj. John McEntire oversaw the “investigations” conducted by the Internal Affairs Division and concurred with the decision to not separate the aggrieved parties during the pendency of the investigations. 216. On October 3, 2008, Capt. Dolera and Lt. Serrao agreed to order Sgt. Dowkin to prepare a report on a three year-old incident that normally required no written documentation. 217. Capt. Dolera and Lt. Axt conspired to remove Ofc. Bennett-Bagorio from a training session that would qualify her to operate the intoxilizer machine and thereby be eligible to accrue overtime pay. 218. In December, 2007, Capt. Dolera conspired with one or more of the other Defendants to cover-up and fail to investigate the complaints of the Plaintiffs that Lt. Kwon had made racist comments. 70
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 71 of 76 PageID #: 2250 219. Lt. Kwon and Lt. Axt, along with Sgt. Fernandez, conspired to complain about Sgt. Dowkin=s and Ofc. Delgadillo=s attendance records, complaining that these Plaintiffs were coming to work late, when these Defendants would often be late themselves and there would be no adverse action taken against them. 220. Capt. Dolera and Lt. Axt conspired to fabricate complaints about Sgt. Dowkin=s performance and downgraded his performance evaluation (PAR) for the time period May 3, 2009, through September 7, 2009. 221. Maj. Simmons, Capt. Dolera and Lt. Axt conspired to selectively enforce the rule about timely submission of overtime cards, ordering Ofc. Delgadillo to submit written explanations about his conduct when other officers did not have to do so. 222. Capt. Dolera, Lt. Kwon and Lt. Axt conspired to assign Sgt. Dowkin and Ofc. Delgadillo to Kahuku for DUI enforcement where they would be isolated and at least fifteen (15) minutes away from the closest cover officer, thereby further endangering them and subjecting them to undue stress. 223. Sgt. Fernandez and Lt. Axt conspired to fabricate derogatory comments in order to downgrade Ofc. Delgadillo=s performance review (PAR), planting negative comments in the PAR without Ofc. Delgadillo=s knowledge. 224. Sgt. Tanaka did not provide cover to Sgt. Dowkin or Ofc. Delgadillo, 71
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 72 of 76 PageID #: 2251 thereby evidencing his agreement with the order made by Sgt. Fernandez not to provide backup cover to these Plaintiffs. 225. Sgt. Tanaka was present as the supervising officer at the scene on October 18, 2010, when he deliberately failed to provide or order backup cover for Ofc. Bennett-Bagorio who was allowed by Tanaka to enter Porkey=s Bar alone and sustain a serious back injury when she was attacked by the suspect, thereby demonstrating his agreement with the other Defendants to not provide backup cover to Ofc. Bennett-Bagorio as an act of retaliation against her for making the protected complaints set forth herein. 226. On information an belief, Mr. Pat Ah Loo, in his capacity as the human resource advisor to HPD, either directed or concurred with the actions and inactions of the other Defendants regarding the investigation and disposition of the various complaints of discrimination and retaliation as described herein. 227. Ofc. Kashimoto also conspired against and openly disparaged Sgt. Dowkin, calling him a AFuckin Papolo.@ His tacit agreement with the other Defendants not to provide effective backup cover to the Plaintiffs resulted in injury to Sgt. Dowkin on October 11, 2010, as described above. 228. Ofc. Kashimoto conspired to harass Plaintiffs on several occasions, confronting Ofc. Bennett-Bagorio about her confidential interviews with Internal Affairs concerning the racial discrimination complaints. He also repeatedly failed 72
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 73 of 76 PageID #: 2252 to cover the DUI team when they called for back-up, demonstrating his agreement with Sgt. Fernandez’s order not to provide backup cover to the DUI Team. 229. On October 11, 2010, Kashimoto responded slowly to a stabbing scene where Sgt. Dowkin had already arrived and was dealing with a drunk suspect alone, again demonstrating his agreement with his co-conspirator Defendants to not provide required backup cover to the Plaintiffs. EIGHTH CAUSE OF ACTION Civil Conspiracy (All Plaintiffs Against All Defendants) 230. Plaintiffs reallege and incorporate by reference every allegation stated herein. 231. Each of Defendants conspired, and are continuing to conspire, with one or more of the other Defendants to accomplish one or more of the violations of law set forth herein in order to cause one or more of the Plaintiffs to suffer harm, and such conspiratorial misconduct did cause, and is still causing, Plaintiffs to sustain damage, including, but not limited to, front and back pay and other economic loss, emotional distress and fear of bodily harm and death and injury to reputation, for which damage Plaintiffs are entitled to recover from Defendants. 232. By committing those overt acts and omissions described in the Seventh Claim for Relief above, which are incorporated herein, these Defendants have 73
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 74 of 76 PageID #: 2253 engaged and are still engaging in a civil conspiracy to deprive Plaintiffs of their civil and other rights and to intentionally inflict emotional distress upon Plaintiffs and other cause them to suffer harm and damage. 233. In addition, Defendants have inflicted and continue to inflict such harm willfully, wantonly and/or with a reckless disregard for Plaintiffs legal rights, emotional well-being and/or physical safety, thereby entitling Plaintiffs to recover from Defendants an additional award of punitive damages to be imposed by the jury in order to punish Defendants for their illegal activity, to deter other employers or those in positions of authority in our community from considering the perpetration of similar illegal misconduct in the future against their employees or subordinates and to clearly establish the type of misconduct that is totally repugnant to a civil society and is not to be tolerated in the State of Hawai=i. The individual Defendants, in perpetrating the foregoing, were motivated by malice and not by an otherwise proper purpose. DAMAGES 234. Defendants= acts of discrimination and retaliation as set forth herein have caused Plaintiffs to suffer past and future economic loss for which Defendants are jointly and severally liable to Plaintiffs. 235. Defendants acts of discrimination and retaliation as set forth herein have caused Plaintiffs to suffer severe and extreme emotional and psychological 74
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 75 of 76 PageID #: 2254 pain and suffering, including fear of death, for which Defendants are jointly and severally liable to Plaintiffs. 236. Defendants= acts herein were extreme, cruel, malicious and outrageous, and thus, Defendants are jointly and severally liable to Plaintiffs for punitive damages in order to punish Defendants and to deter Defendants and others from engaging in similar misconduct. 237. Defendants, pursuant to federal and state statutes, are also liable to Plaintiffs for Plaintiffs reasonable attorneys fees and associated court costs and litigation expenses. JURY DEMAND 238. Plaintiffs hereby demand and are entitled to a trial by jury on all of the above causes of action. WHEREFORE, IT IS PRAYED THAT, after all due proceedings, judgment (in an amount to include actual, compensatory, punitive and statutory damages) be entered in favor of Plaintiffs and against Defendants, in a total amount which a jury may deem to be appropriate in view of the egregious misconduct of these Defendants and the irreparable harm they have inflicted on these Plaintiffs, together with pre- and post-judgment interest, costs and statutory attorney=s fees, and for all other available and appropriate statutory and equitable relief. Respectfully submitted, 75
  • Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 76 of 76 PageID #: 2255 THE BENNETT FIRM LAW OFFICES OF SETH L. GOLDSTEIN By /s/ Merit Bennett By /s/ Seth L. Goldstein Merit Bennett Seth L. Goldstein 460 St. Michael’s Drive, Ste. 703 2100 Garden Road, Ste. H-8 Santa Fe, New Mexico 87505 Monterey, CA 93940 (505) 983-9835 (831) 372-9511 Attorney for Plaintiffs Attorney for Plaintiffs 76