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Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 Page 1 of 76       PageID #:
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  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,
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                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

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 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
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 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
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 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
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 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.
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       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
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 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.
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       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


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  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
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  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,
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  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,
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  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
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  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
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  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
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  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. Dowkin's 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. Dowkin's 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.
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        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.
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  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,
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  District 4, patrol, supported and verified the truth of Dowkin's 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-Bagorio's 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-

  Bagorio's secure work place with the aid and agreement of officers of Defendant

  City, thus conspiring to cause Ofc. Bennett-Bagorio to suffer harm.
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        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.
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        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;
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              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
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  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.
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        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
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  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=
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  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
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  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. Dowkin's or Ofc. Delgadillo's 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.
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        73.   Maj. Simmons thereafter tacitly concurred with Chief Correa's 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
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  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
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  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
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  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
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  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.
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  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
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  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
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  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
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  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
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  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
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  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,
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  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
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  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
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  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
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  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.
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        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].@
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        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
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  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
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  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
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  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 Kashimoto's 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. Dowkin's 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
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  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
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  Ofc. Bennett-Bagorio, gender, and prohibits retaliation against Plaintiffs for

  making protected complaints of discrimination (in Ofc. Bennett-Bagorio's 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
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  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
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  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
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  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
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  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
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  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
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  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
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  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
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  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

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  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.




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Dowkin et al hpd discrimination complaint
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Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
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Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint
Dowkin et al hpd discrimination complaint

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Dowkin et al hpd discrimination complaint

  • 1. 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,
  • 2. 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
  • 3. 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
  • 4. 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
  • 5. 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
  • 6. 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
  • 7. 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
  • 8. 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
  • 9. 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
  • 10. 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
  • 11. 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
  • 12. 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
  • 13. 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
  • 14. 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
  • 15. 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
  • 16. 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. Dowkin's 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. Dowkin's 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
  • 17. 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
  • 18. 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
  • 19. 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 Dowkin's 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-Bagorio's 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- Bagorio's secure work place with the aid and agreement of officers of Defendant City, thus conspiring to cause Ofc. Bennett-Bagorio to suffer harm. 19
  • 20. 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
  • 21. 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
  • 22. 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
  • 23. 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
  • 24. 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
  • 25. 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
  • 26. 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
  • 27. 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. Dowkin's or Ofc. Delgadillo's 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
  • 28. 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 Correa's 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
  • 29. 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
  • 30. 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
  • 31. 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
  • 32. 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
  • 33. 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
  • 34. 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
  • 35. 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
  • 36. 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
  • 37. 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
  • 38. 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
  • 39. 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
  • 40. 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
  • 41. 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
  • 42. 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
  • 43. 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
  • 44. 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
  • 45. 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
  • 46. 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
  • 47. 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 Kashimoto's 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. Dowkin's 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
  • 48. 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
  • 49. 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-Bagorio's 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
  • 50. 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
  • 51. 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
  • 52. 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
  • 53. 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
  • 54. 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
  • 55. 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
  • 56. 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
  • 57. 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
  • 58. 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