LIHU‘E — The complaint against the county from a 28-year water safety officer hangs in limbo as the court decides whether to dismiss the case. At a hearing Wednesday afternoon in 5th Circuit Court, the County of Kaua‘i stipulated that
LIHU‘E — The complaint against the county from a 28-year water safety officer hangs in limbo as the court decides whether to dismiss the case.
At a hearing Wednesday afternoon in 5th Circuit Court, the County of Kaua‘i stipulated that the workers’ compensation claim from Myles Y. Emura was valid upon review from an independent examiner. Emura accepted $15,801.40 for his claim.
Emura’s claim does not end there, however, and his civil rights claim that decisions of supervisors created a hostile environment and forced him to take medical leave is still being litigated. As an employee of the Ocean Safety Bureau, Emura named his two supervisors, Kalani Vierra and Gerald Hurd, plus Robert Westerman in his capacity as Chief of Kaua‘i Fire Department and Ocean Safety Bureau Division.
Deputy County Attorney Mauna Kea Trask appeared for the defendants who were not present in court.
The medical claim according to Trask, satisfies the exclusive remedy provision in the Hawai‘i Workers’ Compensation Law. He argued that the law bars the defendant from “double-dipping” with a civil rights claim of retaliation, violating public policy and infringement of free speech on the part of the defendants.
Trask argued the staff structure of Ocean Safety Bureau indicates that Emura’s supervisors are not members of a management team, but instead should be seen as coworkers.
Case law included the 2012 Hawai‘i Intermediate Court of Appeals decision of Rosa Yang vs. Abercrombie & Fitch.
According to the decision, the 2007 case involves Yang, an employee of the clothing store, who was presented with a wallet containing $600 found in the store. She and a co-worker placed it in a safe and the money went missing.
A loss prevention officer pressured Yang to confess. She was humiliated and escorted in tears from the store in view of staff.
Yang won her workers’ compensation claim for stress through the Department of Labor and Industrial Relations. A year later she filed another complaint on counts including false imprisonment and harassment.
The defendants had argued this was a double-recovery by making the company liable for actions of third-party individuals.
In the Emura case, Trask said the plaintiff is attempting to receive workers’ compensation and then pursue damages for the actions of co-workers. This is why the motion to dismiss the indictment followed the compensation stipulation, he said.
Defense attorney Roman Amaguin argued that as a water safety officer, Emura is subject to direction under Vierra and Hurd, who in their capacity as supervisors act as the employer — the county. He said the exclusivity provision does not apply in this case.
The complaint says Emura was called to testify before a County Ethics Board in March, after a co-worker filed a complaint regarding the two supervisors. He testified that the supervisors ran a private business that conflicted with their official duties and were observed using county fuel and equipment for the business.
Emura says he suffered retaliation in the form of unwarranted reprimands, humiliation, harassment and threats. He stopped receiving overtime and was sent on two random urinalysis drug tests without adequate explanation.
He took medical leave and used up his vacation time as his complaints were investigated to no avail by his own supervisors. After receiving no response to his “reconsideration of investigation” that was handled internally by KFD, Emura filed the lawsuit on Sept. 20.
Trask said that no amount of legal theory could make the claim an exception to law.
Amaguin argued that the principles of case law apply to Emura and asked the court to find with his client and not dismiss the complaint. He said discrimination, public policy violation and free speech all fall within the realm of the statute.
Judge Kathleen Watanabe said the court would take arguments under advisement and inform the attorneys of her decision.
As of Thursday afternoon the decision was not announced by the court, according to Amaguin.
• Tom LaVenture, staff writer, can be reached at 245-3681 (ext. 224) or tlaventure@thegardenisland.com.
