Dowkin et al hpd discrimination complaint

Merit BennettThe Bennett Firm1050 Bishop Street, #302Honolulu, Hawai=i 96813Telephone: (808) 531-9722Facsimile: (808) 486-2833

Seth L. GoldsteinLaw Offices of Seth L. Goldstein2100 Garden Road, Suite H-8Monterey, CA 93940Telephone: (831) 372-9511Facsimile: (831) 372-9611

Attorneys for Plaintiffs

IN THE UNITED STATES DISTRICT COURTFOR THE DISTRICT OF HAWAI’I

SERGEANT SHERMON DEANDOWKIN, OFFICER FEDERICODELGADILLO MARTINEZ, JR., andOFFICER CASSANDRA BENNETT-BAGORIO,

Plaintiffs,

vs.

THE CITY AND COUNTY OFHONOLULU, FORMER CHIEF OFPOLICE BOISSE CORREA, CURRENT CHIEF OF POLICE LOUIS KEALOHA, ASSISTANT CHIEFMICHAEL TAMASHIRO, MAJORKENNETH SIMMONS, MAJOR JOHNMCENTIRE, CAPTAIN NYLE DOLERA, LIEUTENANT MICHAELSERRAO, LIEUTENANT DAN KWON,LIEUTENANT WILLIAM AXT,SERGEANT WAYNE FERNANDEZ,SERGEANT RALSTAN TANAKA, OFFICER COLBY KASHIMOTO, PATAH LOO,

Case No. CV10 00087 SOM/RLP

THIRD AMENDEDCOMPLAINT FOR COMPENSATORY,STATUTORY AND PUNITIVEDAMAGES

TRIAL DATE: July 31, 2012

Case 1:10-cv-00087-SOM-RLP Document 221 Filed 01/17/12 of 76 PageID #: 2180

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

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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

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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


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


of complaints of discrimination, yet he has accomplished, ratified, condoned,


described herein committed on behalf of HPD by him and/or by one or more of the


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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,


described herein on behalf of HPD committed by him and/or by one or more of the


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


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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




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


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




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




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

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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

24


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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


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 Origin42 U.S.C., Section 2000d, et seq.

(Plaintiffs Sgt. Dowkin and Ofc. Delgadillo Against Defendant City& County)


herein.

149. Title VI of the Civil Rights Act of 1964, 42 U.S.C., Section 2000d, et

50


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


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 LawDenial of Equal Protection and Due Process of Law;

and Discrimination in the Terms and Conditionsof 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))


herein.

155. Defendants have deprived and continue to deprive Plaintiffs of the

aforestated rights, privileges and protections, causing Plaintiffs to suffer harm and

52


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



53


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




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)


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


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


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



these Defendants.





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


56




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)


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


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.





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




The individual Defendants, in perpetrating the foregoing, were motivated by

malice and not by an otherwise proper purpose.

58


SIXTH CAUSE OF ACTION

Negligent Infliction of Emotional Distress(Plaintiff Dowkin Against City & County, Kwon and Fernandez;

Plaintiff Bennett-Bagorio Against City & County and Tanaka)


herein.

172. By committing the acts described above, Defendants City & County,

Kwon and Fernandez inflicted emotional distress on Plaintiff Dowkin resulting in

physical injury to Plaintiff Dowkin, and Defendants City & County and Tanaka

inflicted emotional distress on Plaintiff Bennett-Bagorio resulting in physical

injury to Plaintiff Bennett-Bagorio.

173. Defendants, in their special relationships with Plaintiffs, had the duty

to exercise ordinary care regarding Plaintiffs’ safety.

174. Defendants negligently breached their duties to Plaintiffs, thus

causing Plaintiffs to suffer emotional distress and associated physical injury.

175. In committing the negligent acts and omissions herein alleged,

Defendants engaged in courses of conduct which were grossly negligent, extreme

and outrageous.

176. These Defendants knew, or in the exercise of reasonable care should

have known, that the foregoing conduct would cause Plaintiffs to suffer severe and

extreme emotional distress and physical injury. Defendants owed Plaintiffs a duty

59


of care not to cause Plaintiffs to undergo such distress or to suffer physical injury

in connection therewith, yet Defendants breached that duty of care.

177. The breaches of these duties by Defendants have resulted and continue

to result in damage to Plaintiffs, to include, but not limited to, front and back pay

and other economic loss, emotional distress and fear of bodily harm and death and

injury to reputation, and pain and suffering and physical impairment for which

Plaintiffs are entitled to recover from these Defendants.

178. In addition, these Defendants have inflicted and continue to inflict such

harm willfully, wantonly and/or with a reckless disregard for Plaintiffs' legal rights,


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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SEVENTH CAUSE OF ACTION

Conspiracy to Interfere with Civil Rights42 U.S.C., Section 1985

(All Plaintiffs Against all Defendants)


herein.

180. To establish a Section 1985 conspiracy claim, the plaintiff must show:

A[1] the existence of a conspiracy to deprive the plaintiff of the equal protection of

the laws; [2] an act in furtherance of the conspiracy; and [3] a resulting injury.@

Scott v. Ross, 140 F.3d 1275, 1284 (9th Cir.1998).

181. The Defendants, acting individually and in their capacities as

supervisory and administrative officials of the City & County and its Police

Department (HPD), conspired, planned, and agreed, each with one or more of the

others, to violate the rights of the Plaintiffs, and to retaliate against, harass,

intimidate and/or cause economic and psychological injury to the Plaintiffs. See

Dooley v City of Philadelphia, 153 F.Supp.3d 628, 661 (E.D.Pa.2001).

182. Defendants, each with one or more of the others, verbally and/or tacitly

by their acts and/or omissions, agreed to the commission of the aforesaid wrongful

acts perpetrated against the Plaintiffs, which wrongful acts caused Plaintiffs to

suffer the above-described harm and damage, and Defendants are therefore jointly

and severally liable to Plaintiffs for all resulting harm and damage suffered by

61


Plaintiffs.

183. Each Defendant was aware that one or more of the other Defendants

planned to not provide Plaintiffs with backup cover pursuant to HPD policy and/or

otherwise retaliate against Plaintiffs for making protected complaints of race and

gender discrimination and retaliation, yet each of the Defendants agreed, by their

acts and/or omissions and/or by their tacit consent and/or ratification of such

misconduct, that said wrongful acts nevertheless be committed.

184. Under color of law, prejudiced against race and gender and in

retaliation for Plaintiffs Dowkin’s and Delgadillo’s race discrimination complaint

and Bennett-Bagorio’s gender discrimination complaint, all of the Defendants

committed the acts and/or omissions described above, with animus, and in

furtherance of a conspiracy to deprive all Plaintiffs of their constitutional rights of

due process and equal protection of the laws of the United States.

185. The above-described acts and omissions of the Defendants constitute a

violation of those rights by failing to prevent disparate discriminatory mistreatment

against Plaintiffs, by permitting a hostile work environment to exist for Plaintiffs,

by allowing illegal race and gender discrimination against Plaintiffs to interfere

with the enforcement of workplace rules and regulations, by failing to prevent

harassment against Plaintiffs in the workplace and by failing to prevent retaliation

against Plaintiffs for making protected complaints about discrimination, all

62


protections guaranteed to the Plaintiffs by substantive equal protection and due

process provisions of the Fourteenth Amendment to the Constitution of the United

States and of the Hawai’i Constitution.

186. HPD Standards of Conduct require that personnel complaints that

involve violations of those Standards be submitted to the HPD Administrative

Review Board after they are reviewed by the Division Commander who commands

the employee involved.

187. The Chief of Police, according to the City and County Employment

Standards and HPD Standards of Conduct, is required to direct, control, train, equip,

supervise and ensure that those rights granted to HPD employees pursuant to the

constitutions of the State of Hawai=i and the United States are protected.

188. In his deposition, Chief Correa admitted that the ultimate responsibility

for decisions in the Honolulu Police Department regarding disciplinary actions and

enforcement of rules and regulations lies with the Chief of Police. “I’m the

manager, administrator and where the buck stops at the police department as

to the chief.” He testified that the command staff that he promoted were selected

by him because of his agreement and concurrence with their abilities to carry out

those duties he delegates, including decisions on disciplinary matters, enforcement

of policies and practices and the protection of those constitutional rights described

above.

63


189. Furthermore, he testified that the memorandums pertaining to the

actions of his subordinate command officers reflect a signature of each command

officer in the chain of command between the Chief of Police and the level upon

which the decision and or action was made or initiated.

190. The significance of the signature is to verify that the command officer

has reviewed, concurs and will abide by the decision or procedure discussed in the

memorandum.

191. On July 9, 2008, Sgt. Dowkin submitted his official complaint of racial

discrimination directly to Chief Correa, via Maj. Simmons and Assistant Chief

Tamashiro.

192. When Sgt. Dowkin submitted on July 9, 2088, his and Ofc.

Delgadillo’s first race discrimination complaint (involving life-threatening failures

to provide backup cover) to Chief Correa via the chain of command, all command

officers (Maj. Simmons, Assistant Chief Tamashiro) involved in the handling of

such complaint were required to acknowledge the complaint and concur with

whatever action or inaction that was ultimately taken in response thereto.

193. Therefore, all of these Defendants tacitly agreed and ratified that the

“best” response to such a serious complaint was to only show the Stan Cook video,

which response was woefully inadequate to address the serious nature of the claims

these Plaintiffs were making.

64


194. These Defendants gave lip service to the Plaintiffs’ no cover

complaint by only issuing memorandums reminding officers of their obligation to

provide cover, but never initiated any adequate investigation or made any

immediate and affirmative effort to insure that Plaintiffs were receiving required

backup cover, despite ongoing incidents of failures to provide cover.

195. These Defendants, by their inaction and/or totally inadequate response,

therefore tacitly condoned and/or ratified the violations of HPD policy and

Plaintiffs’ rights.

196. In November of 2011, Sgt. Dowkin received notice that HPD had

failed to sustain his complaints of racial discrimination, yet the City continues to

this date to allow discrimination and retaliation to be perpetrated against the

Plaintiffs by the Defendants still employed by the City.

197. The individual Defendants in the chain of command at the time Sgt.

Dowkin made his initial complaints about the failure of his supervisors and fellow

officers to provide backup cover were Defendants Lt.’s Kwon, Axt and Serrao,

Capt. Dolera, Maj. Simmons, Assistant Chief Tamashiro and Chief Boisse Correa.

198. When subsequent complaints were made, the same chain of individuals

were involved until the current Chief of Police, Louis Kealoha, took over as Chief

in November of 2009.

199. The Chief of Police directly supervises the Professional Standards

65


Office (PSO). This office investigates personnel complaints such as those made

against Sgt. Dowkin and Ofc. Delgadillo for allegedly selling tamales while on

duty, the discrimination complaints made by the three Plaintiffs and the complaints

made about the failures to provide backup cover for Sgt. Dowkin and Ofc.

Delgadillo.

200. The complaint about the alleged sale of tamales, pursued by Maj.

Simmons in conjunction with Assistant Chief Tamashiro, Lieutenant=s Kwon and

Serrao, Sergeants Fernandez and Tanaka, Ofc. Kashimoto and Capt. Dolera, would

have been overseen by Chief Correa himself.

201. The contrivance of this complaint, initiated by Ofc. Kashimoto, Sgt.

Tanaka and others, furthered by Lt. Serrao, Capt. Dolera and Maj. Simmons,

represents an agreement to fabricate and perpetuate that accusation in order to

retaliate against the Plaintiffs for complaining about racial discrimination.

202. Chief Kealoha succeeded Chief Correa in November of 2009 as Chief

of Police. In February of 2010, this lawsuit was filed, and Chief Kealoha was served

with the complaint, along with the subordinate command officers who are also

Defendants in this matter.

203. At no time before or after the filing of the lawsuit did anyone in the

chain of command, from Sgt. Fernandez through all of the Defendants up to and

including Chief Correa and Chief Kealoha, do anything to separate the parties,

66


prevent retaliation or enforce the rule requiring officers to provide backup cover on

traffic stops and police calls. This tacit agreement among all of the individual

Defendants to do nothing in these regards led to the unnecessary and completely

avoidable injuries sustained by Plaintiffs Dowkin and Bennett-Bagorio.

204. Upon information and belief, and discoverable only if the Court

permits the depositions of Chief Correa and Chief Kealoha, following the filing of

Plaintiffs’ EEOC complaints in 2008 and 2009 and the filing of the lawsuit in

February of 2010, one or more of the Defendants met, conferred and/or agreed to

permit the Plaintiffs to remain at risk of harm, knowing that harm to them would

likely occur as a result.

205. According to the letter dated September 13, 2011, informing Sgt.

Dowkin of the disposition of his complaint No. 11-0025, the HPD “investigation”

was reviewed by the Administrative Review Board. This board is comprised of

staff officers below the rank of Chief and above the rank of Division Commander.

The Chief himself must approve the final disposition concerning the Plaintiffs’

complaints. It is logically inferred that Chief Kealoha and the command level staff

concurred with the disposition that nothing be done in response to Plaintiffs’

complaints of discrimination and retaliation nor to take any action to separate the

Plaintiffs. This conspiracy “to do nothing” has caused and will continue to cause

the Plaintiffs to suffer harm.

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206. On or about July 9, 2008, Assistant Chief Tamashiro was the direct

supervisor of Maj. Simmons, who supervised Capt. Dolera, who supervised

Lieutenant=s Axt, Sorreo and Kwon.

207. After the complaint alleging discrimination was given by Sgt. Dowkin

to Maj. Simmons on July 9, 2008, Maj. Simmons met with Assistant Chief

Tamashiro, and Maj. Simmons then forwarded the complaint to Chief Correa, and

they all apparently agreed that nothing would be done to separate the Plaintiffs from

the alleged offending officers in the HPD workplace so that no further harm to

Plaintiffs would occur. As a result of this agreement to do nothing, harm did, in

fact, occur, including the infliction of additional emotional distress and objective

physical injury upon Plaintiffs.

208. It is known that Maj. Simmons and Assistant Chief Tamashiro met and

agreed to order Sgt. Dowkin to revise and downgrade Ofc. Delgadillo=s

performance evaluation for the year 2008-2009. Other Defendants who were

involved in the agreement to have Sgt. Dowkin revise that performance evaluation

were Defendants Maj. John McEntire, Mr. Pat Ah Loo, Capt. Dolera, Lt. Axt and

Lt. Serrao. These Defendants were all named in the Ae-mail chain@ attached to Ofc.

Delgadillo’s downgraded performance evaluation, reflecting each of their approval

and concurrence with the retaliatory downgrade.

209. As a result of the complaints Sgt. Dowkin made about no cover and

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racial discrimination, Maj. Simmons, Lt.=s Kwon and Axt, Sgt. Fernandez and Pat

Ah Loo met and agreed that Sgt. Dowkin be sent to CID (because he was

“disruptive”), which is an assignment that is considered to be a punishment and

which would result in a pay cut because of the lack of any opportunity for Sgt.

Dowkin to earn overtime.

210. On October 28, 2008, Maj. Simmons ordered Capt. Dolera to order Lt.

Kwon to file a complaint against and to investigate Sgt. Dowkin for a supposedly

tardy submission of a single overtime card: more conspiratorial agreement; more

overt acts in furtherance thereof.

211. Maj. Simmons then falsely represented to the EEOC investigator that

Sgt. Dowkin had been disciplined for the tardy timecard submission, when in fact, it

was Lt. Kwon who was disciplined for failure to timely complete the investigation

of that supposed violation.

212. Maj. Simmons also met with Capt. Dolera and agreed to limit the

overtime that Sgt. Dowkin and Ofc. Delgadillo were incurring as a result of their

DUI arrests, while allowing other officers to exceed the supposed limit of overtime.

213. On January 18, 2007, Lt.=s Kwon and Serrao, along with Sgt.

Fernandez, met with Sgt. Dowkin and informed him that they had agreed that Ofc.

Bennett-Bagorio and another officer were to be ordered not to assist the DUI team,

thereby evidencing a conspiratorial agreement to deny mandated backup to

69


Plaintiffs.

214. In January, 2008, Maj. Simmons, Lt. Kwon and Lt. Axt agreed to

selectively enforce the HPD rule that officers not drive to and from work or other

non-police functions with their blue lights mounted upon their vehicles. They

ordered only Sgt. Dowkin and Ofc. Delgadillo to remove their blue lights at the end

of their shift and not to again affix them to their vehicles until they returned to their

duty assignment, while allowing other officers and even themselves to violate this

“rule.”

215. Maj. John McEntire oversaw the “investigations” conducted by the

Internal Affairs Division and concurred with the decision to not separate the

aggrieved parties during the pendency of the investigations.

216. On October 3, 2008, Capt. Dolera and Lt. Serrao agreed to order Sgt.

Dowkin to prepare a report on a three year-old incident that normally required no

written documentation.

217. Capt. Dolera and Lt. Axt conspired to remove Ofc. Bennett-Bagorio

from a training session that would qualify her to operate the intoxilizer machine and

thereby be eligible to accrue overtime pay.

218. In December, 2007, Capt. Dolera conspired with one or more of the

other Defendants to cover-up and fail to investigate the complaints of the Plaintiffs

that Lt. Kwon had made racist comments.

70


219. Lt. Kwon and Lt. Axt, along with Sgt. Fernandez, conspired to

complain about Sgt. Dowkin=s and Ofc. Delgadillo=s attendance records,

complaining that these Plaintiffs were coming to work late, when these Defendants

would often be late themselves and there would be no adverse action taken against

them.

220. Capt. Dolera and Lt. Axt conspired to fabricate complaints about Sgt.

Dowkin=s performance and downgraded his performance evaluation (PAR) for the

time period May 3, 2009, through September 7, 2009.

221. Maj. Simmons, Capt. Dolera and Lt. Axt conspired to selectively

enforce the rule about timely submission of overtime cards, ordering Ofc.

Delgadillo to submit written explanations about his conduct when other officers did

not have to do so.

222. Capt. Dolera, Lt. Kwon and Lt. Axt conspired to assign Sgt. Dowkin

and Ofc. Delgadillo to Kahuku for DUI enforcement where they would be isolated

and at least fifteen (15) minutes away from the closest cover officer, thereby further

endangering them and subjecting them to undue stress.

223. Sgt. Fernandez and Lt. Axt conspired to fabricate derogatory

comments in order to downgrade Ofc. Delgadillo=s performance review (PAR),

planting negative comments in the PAR without Ofc. Delgadillo=s knowledge.

224. Sgt. Tanaka did not provide cover to Sgt. Dowkin or Ofc. Delgadillo,

71


thereby evidencing his agreement with the order made by Sgt. Fernandez not to

provide backup cover to these Plaintiffs.

225. Sgt. Tanaka was present as the supervising officer at the scene on

October 18, 2010, when he deliberately failed to provide or order backup cover for

Ofc. Bennett-Bagorio who was allowed by Tanaka to enter Porkey=s Bar alone and

sustain a serious back injury when she was attacked by the suspect, thereby

demonstrating his agreement with the other Defendants to not provide backup cover

to Ofc. Bennett-Bagorio as an act of retaliation against her for making the protected

complaints set forth herein.

226. On information an belief, Mr. Pat Ah Loo, in his capacity as the human

resource advisor to HPD, either directed or concurred with the actions and inactions

of the other Defendants regarding the investigation and disposition of the various

complaints of discrimination and retaliation as described herein.

227. Ofc. Kashimoto also conspired against and openly disparaged Sgt.

Dowkin, calling him a AFuckin Papolo.@ His tacit agreement with the other

Defendants not to provide effective backup cover to the Plaintiffs resulted in injury

to Sgt. Dowkin on October 11, 2010, as described above.

228. Ofc. Kashimoto conspired to harass Plaintiffs on several occasions,

confronting Ofc. Bennett-Bagorio about her confidential interviews with Internal

Affairs concerning the racial discrimination complaints. He also repeatedly failed

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to cover the DUI team when they called for back-up, demonstrating his agreement

with Sgt. Fernandez’s order not to provide backup cover to the DUI Team.

229. On October 11, 2010, Kashimoto responded slowly to a stabbing scene

where Sgt. Dowkin had already arrived and was dealing with a drunk suspect alone,

again demonstrating his agreement with his co-conspirator Defendants to not

provide required backup cover to the Plaintiffs.

EIGHTH CAUSE OF ACTION

Civil Conspiracy(All Plaintiffs Against All Defendants)


herein.

231. Each of Defendants conspired, and are continuing to conspire, with one

or more of the other Defendants to accomplish one or more of the violations of law

set forth herein in order to cause one or more of the Plaintiffs to suffer harm, and

such conspiratorial misconduct did cause, and is still causing, Plaintiffs to sustain

damage, including, but not limited to, front and back pay and other economic loss,

emotional distress and fear of bodily harm and death and injury to reputation, for

which damage Plaintiffs are entitled to recover from Defendants.

232. By committing those overt acts and omissions described in the Seventh

Claim for Relief above, which are incorporated herein, these Defendants have

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engaged and are still engaging in a civil conspiracy to deprive Plaintiffs of their

civil and other rights and to intentionally inflict emotional distress upon Plaintiffs

and other cause them to suffer harm and damage.

233. In addition, Defendants have inflicted and continue to inflict such harm

willfully, wantonly and/or with a reckless disregard for Plaintiffs' legal rights,


from Defendants an additional award of punitive damages to be imposed by the jury

in order to punish Defendants for their illegal activity, to deter other employers or

those in positions of authority in our community from considering the perpetration

of similar illegal misconduct in the future against their employees or subordinates

and to clearly establish the type of misconduct that is totally repugnant to a civil

society and is not to be tolerated in the State of Hawai=i. The individual

Defendants, in perpetrating the foregoing, were motivated by malice and not by an

otherwise proper purpose.

DAMAGES

234. Defendants= acts of discrimination and retaliation as set forth herein

have caused Plaintiffs to suffer past and future economic loss for which Defendants

are jointly and severally liable to Plaintiffs.

235. Defendants' acts of discrimination and retaliation as set forth herein

have caused Plaintiffs to suffer severe and extreme emotional and psychological

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pain and suffering, including fear of death, for which Defendants are jointly and

severally liable to Plaintiffs.

236. Defendants= acts herein were extreme, cruel, malicious and outrageous,

and thus, Defendants are jointly and severally liable to Plaintiffs for punitive

damages in order to punish Defendants and to deter Defendants and others from

engaging in similar misconduct.

237. Defendants, pursuant to federal and state statutes, are also liable to

Plaintiffs for Plaintiffs' reasonable attorneys' fees and associated court costs and

litigation expenses.

JURY DEMAND

238. Plaintiffs hereby demand and are entitled to a trial by jury on all of the

above causes of action.

WHEREFORE, IT IS PRAYED THAT, after all due proceedings, judgment

(in an amount to include actual, compensatory, punitive and statutory damages) be

entered in favor of Plaintiffs and against Defendants, in a total amount which a jury

may deem to be appropriate in view of the egregious misconduct of these

Defendants and the irreparable harm they have inflicted on these Plaintiffs, together

with pre- and post-judgment interest, costs and statutory attorney=s fees, and for all

other available and appropriate statutory and equitable relief.

Respectfully submitted,

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THE BENNETT FIRM LAW OFFICES OF SETH L.GOLDSTEIN

By /s/ Merit Bennett By /s/ Seth L. Goldstein Merit Bennett Seth L. Goldstein460 St. Michael’s Drive, Ste. 703 2100 Garden Road, Ste. H-8Santa Fe, New Mexico 87505 Monterey, CA 93940(505) 983-9835 (831) 372-9511Attorney for Plaintiffs Attorney for Plaintiffs

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Dowkin et al hpd discrimination complaint

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