Appendix — Caldeira v. County of Kauai

Supreme Court brief1989

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83966A

IN THE

Supreina Geurt US,

Fide: D

JUN < 1909

JOSEPH F. SPANIOL, JR.

SUPREME COURT OF THE = CLERK

STATES

October Term, 1988

RONALD CALDEIRA, Petitioner

COUNTY OF KAUAI;

HAWAII GOVERNMENT EMPLOYEES

ASSOCIATION,

AFSCME LOCAL 152, AFL-CIO,

et al., Respondents

ON CERTIORARI TO THE

UNITED STATES COURT OF APPFALS

FOR THE NINTH CIRCUIT

INDEX TO APPENDICES

APPENDICES

AFFIDAVIT OF SERVICE BY MAIL

L. RICHARD FRIED, JR.

Suite 1900

Davies Pacific Center

841 Bishop Street

Honolulu, HI 96813

Tel (808) 524-

Attorney for

1433

Ronald Caldeira

Petitioner

e INDEX TO APPENDICES

App Date Description

Arr. A n/a Constitutional and

Statutory Provisions

APP. B 2/2/89 Ninth Circuit _

Decision in Caldeira

v. County of Kauai,

et al., 866 F. 2d

ta Cir.

1989), Docket No.

87-2959

APP. C 1/15/85 Arbitration Award of

Arbitrator Stanley

Ling, Esq.

APP. D 9/25/87 Transcript of Hering

Before the Hawaii

Fifth Circuit Judge

Kei Hirano

APP. E 9/25/87 Order Confirmation

Arbitration Award

[Judge Hirano]

APP. F- 10/9/87 Order by United

States District

Judge Harold W. Fong

piers Motion for

ummary Judgment and

to Dismiss

APP. G 10/15/87 Transcript of

Hearing Before Judge

Hirano

APP. H 12/15/87 Order by Judge

Hirano Denying

Motion to Reconsider

€ and Motion to Vacate

& APP. I 10/13/87 Judgment in a Civil

Case

APP. J. 10/26/87 Order Denying

Plaintiff's Motion

for Reconsideration

APP. K 11/1/88 Order by Hawaii

Labor Relations

Board [formerly

Hawaii Public

Employee Relations

Board] Granting

Motion for Summary

Judgment

APP. L 12/22/88 Joint Letter From

All Counsei Advising

Ninth Circuit of

HPERB Decision

APP. M 9/16/87 Caldeira's frial

Memorandum Part I

(The Facts)

iii

@: Constitutional and Statutory Provisions

U.S. CONSTITUTION, ART. IV §1

Full Faith and Credit shall be

given in each State to the public

Acts, Records, and judicial

Proceedings of every other State.

And the Congress may by general

Laws prescribe the Manner in which

such Acts, Records and Proceedings

shall be proved, and the Effect

thereof.

28 U.S.C. §1738

The records and proceedings of any

court of any such State, Territory

or Possession, or copies thereof,

shall be proved or admitted in

other courts within the United

States and its Territories and

Possessions by the attestation of

the clerk and seal of the court

annexed, if a seal exists, together

with a certificate of a judge of

the court that the said attestation

is in proper form.

Such Acts, records and

judicial proceedings or copies

thereof, so authenticated, shall

have the same full faith and credit

in every court within the United

States and its Territories and

Possessions as they have by law or

usage in the courts of such State,

Territory or Possession from which

they are taken.

42 U.S.C. Section 1983

Section 1983 Civil action for

deprivation of rights.

Every person who, under color of

any statute, ordinance, regulation,

custom, or usage, of any State or

Territory or the District of Columbia,

subjects, or causes to be subjected,

any citizen of the United States or

other person within the jurisdiction

thereof to the deprivation of any

rights, privileges, or immunities

secured by the consitution and laws,

shall be liable to the party injured in

an action at law, suit in equity, or

other proper proceeding for redress,

For the purposes of this section, any

Act of Congress applicable exclusively

to the District of Columbia shall be

considered to be a statute of the

District of Columbia.

R.S. section 1979; Pub. L. 96-170,

section l, Dec. 29, 1979, 93 Stat. 1284

ee, ied ..

CIVIL RIGHTS

Ch. 21 41 § 1985

§ 1985. Conspiracy to interfere with

civil rights

Preventing officer from

performing duties

(1) If two or more persons in any

State or Territory conspire to prevent, by

force, intimidation, or threat, any person

from accepting or holding any office,

trust, or place of confidence under the

United States, or from discharging any

duties thereof; or to induce by like means

any officer of the United States to leave

any State, district, or place, where his

duties as an officer are required to be

performed, or to injure him in his person

or property on account of his’ lawful

discharge of the duties of his office, or

while engaged in the lawful discharge

thereof, or to injure his property so as

to molest, interrupt, hinder, or impede

him in the discharge of his official

duties;

1ii

Obstructing justice;

intimidating party, witness or juror

(é) If two or more persons in any

State or Territory conspire to deter, by

force, intimidation, or threat, any party

Or witness in any court of the United

States from attending such court, or from

testifying to any matter pending therein,

freely, fully, and truthfully, or to

injure such party or witness in his person

or property on account of his having so

attended or testified, or to influence the

verdict, presentment, or indictment of any

grand or petit juror in any such court, or

to injure such juror in his person or

property on account of any verdict,

presentment or indictment lawfully

assented to by him, or of his being or

having been such juror; or if two or more

persons conspire for the purpose of

impeding, hindering, obstructing, or

defeating, in any manner, the due course

of justice in any State or Territory, with

intent to deny to any citizen the equal

protection of the laws, or to injure him

or his property for lawfully enforcing, or

attempting to enforce, the right of any

person, or class of persons, to the equal

protection of the laws;

Depriving persons of

rights or privileges

(3) If two or more persons in any

State or Territory conspire or go in

disguise on the highway or on the premises

of another, for the purpose of depriving,

either directly or indirectly, any person

or class of persons of the equal

protection of the laws, or of equal

_ privileges and immunities under the laws;

or for the purpose of preventing or

hindering the constituted authorities of

any State or Territory from giving or

securing to all persons within such State

of Territory the equal protection of the

laws; or if two or more persons conspire

to prevent by force, intimidation, or

threat, any citizen who is’7 lawfully

entitled to vote, from giving his support

or advocacy in a legal manner, toward or

in favor of the election of any lawfully

qualified person as an elector (for

President or Vice President, or as a

Member of Congress of the United States;

or to injure any citizen in person or

property on account of such support or

advocacy; in any case of conspiracy set

forth in this section, if one or more

persons engaged therein do, or cause to be

done, any act in furtherance of the object

of such conspiracy, whereby another is

injured in his person or property, or

deprived of having and exercising any

right or privilege of a citizen of the

United States, the party so injured or

deprived may have an action for the

recovery of damages occasioned by such

injury or deprivation, against any one or

more of the conspirators.

R.S. § 1980.

CHAPTER 658

ARBITRATION AND AWARDS

SECTION

658-1 AGREEMENT TO SUBMIT

658-2 AGREEMENT TO SUBMIT

EXISTING CONTROVERSY

658-3 COMPELLING COMPLIANCE WITH

AGREEMENT; JURY TRIAL WHEN

658-4 NAME ARBITRATORS

658-5 NO TRIAL IF ISSUE REFERABLE

TO ARBITRATION

658-6 APPLICATION TO COURT HEARD

IN SUMMARY WAY

658-7 WITNESSES; ATTENDANCE

658-8 AWARD; CONFIRMING AWARD

658-9 VACATING AWARD

658-10 MODIFYING OR CORRECTING

AWARD

658-11 NOTICE OF MOTION TO VACATE,

MODIFY, OR CORRECT; STAY

658-12 ENTRY OF JUDGMENT

658-13 RECORD TO BE FILED WITH

MOTION

658-14 EFFECT OF JUDGMENT

658-15 APPEAL WHEN

§658-1 Agreement to submit. A

provision in a written contract to settle

by arbitration a controversy thereafter

arising out of the contract or the refusal

to perform the whole or any part thereof,

Or an agreement in writing to submit an

existing controversy to arbitration

pursuant to section 658-2, shall be valid,

enforceable, and irrevocable, save only

upon such grounds as exist for. the

revocation of any contract. [cc 1859,

§925; RL 1925, §2924; am L 1925, c 276, pt

of §1; RL 1935, §4170; RL 1945, §8701; RL

1955, §188-1; HRS §658-1; am L 1972, c 90,

§2(a)]

§658-2 Agreement to submit existing

controversy. Save in the case of an

infant, or a person incompetent to manage

the person’s affairs, two or more persons

may agree in writing to submit to the

arbitration of one or more arbitrators any

controversy existing between them at ‘the

time of the agreement to submit which

arises out of a contract, or the refusal

to perform the whole or any part thereof,

or the violation of any other obligation.

They may also so agree that a judgment of

a circuit court shall be rendered upon the

award made pursuant to the submission.

They may also specify the judicial circuit

in which the judgment shall be entered.

If the writing does not specify the

viii

judicial circuit, the judgment may be

entered in any judicial circuit. [CC

1859, §926; RL 1925, §2925; am L 1925, c

276, pt of 81; RL 1935, §4171; RL 1945,

§8702; RL 1955, §188-2; HRS §658-2; am imp

L 1984, c 90, §1]

§658-3 Compelling compliance with

agreement; jury trial when. A party

aggrieved by the failure, neglect, or

refusal of another to perform under an

agreement in writing providing for

arbitration, may apply to the circuit

court for an order directing that the

arbitration proceed in the manner provided

* notice

for in the agreement. Five days

in writing of the application shall be

served upon the party in default. Service

thereof shall be made in the manner

provided for service of a summons. The

court shall hear the parties, and upon

being satisfied that the making of the

agreement oor the failure to comply

therewith is not in issue, the court

hearing the application shall make an

order directing the parties to proceed to

arbitration in accordance with the terms

of the agreement. If the making of the

agreement or the default is in issue, the

court shall proceed summarily to the trial

thereof.

A jury trial may be demanded by

either party before or at the time of the

return and if such demand is made, the

issue shall be tried before a jury,

otherwise the court shall hear and

determine the issue.

If the jury, if tried by a jury, or

the court, if tried by the court, finds

that no agreement in writing providing for

arbitration was made or that there is no

default in proceeding thereunder, the

proceeding shall be dismissed. If the

jury, if the trial is before the jury, or

the court, if the trial is before the

court, finds that a written provision for

arbitration was made and that there is a

default in proceeding thereunder, the

court’ shall make an order’ summarily

directing the parties to proceed with the

arbitration in accordance with the terms

thereof. [CC 1859, §927; RL 1925, §2926;

am L 1925, c 276, pt of §1; RL 1935,

§4172; RL 1945, §8703; RL 1955, 8188-3;

HRS §658-3; am L 1972, c 90, §2(b), (c)]

§658-4 Naming arbitrators. zf; in

the agreement, provision is made for a

method of naming or appointing an

arbitrator or arbitrators or an umpire,

such method shall be followed. If no

method is provided therein, or if a method

is provided and any party thereto fails to

avail himself of the method, or for any

other reason there is a lapse in the

naming of an arbitrator or arbitrators, or

umpire, or in filling a vacancy, then,

upon application by either party to the

controversy, the circuit court shall

designate and appoint an arbitrator or

arbitrators, or umpire, as the case may

require, who shall act under the agreement

with the same force and effect as if he or

they had been specifically named therein.

Unless otherwise provided, the arbitration

shall be by a single arbitrator. [cc

1859, §928; RL 1925, §2927; am L 1925, c

276, pt of 81; RL 1935, 84173; RL 1945,

§8704; RL 1955, §188-4; HRS §658-4]

§658-5 No trial if issue referable

to arbitration. If any action or

proceeding is brought upon any issue

referable to arbitration under an

agreement in writing, the circuit court,

upon being satisfied that the issue

involved in the action or proceeding is

referable to arbitration under such an

agreement in writing, shall stay the trial

of the action or proceeding until the

arbitration has been had in accordance

with the isin of the agreement, provided

the applicant for the stay is not in

default in proceeding with the

arbitration. [CC 1859, §929; RL 1925,

Xiil

§2928; am L 1925, c 276, pt of §1; RL

1935, §4174; RL 1945, §8705; RL 1955,

§188-5; HRS §658-5; am L 1972, c 90,

§2(d)]

§658-6 Application to court heard in

summary way. Any application to the

court hereunder shall be made and heard in

a summary way in the manner provided for

the making and hearing of motions, except

as otherwise herein expressly provided.

[CC 1859, §930; RL 1925, §2929; am L 1925,

c 276, pt of §1; RL 1935, §4174; RL 1945,

§8706; RL 1955, §188-6; HRS §658-6; am L

1972, c 90, §2(e)]

§658-7 Witnesses; attendance. The

arbitrators selected either as prescribed

in this chapter, or otherwise, or a

majority of then, his sali in writing

any person to attend before them or any of

them as a witness and in a proper case to

bring with him or them a book or paper.

The fees for attendance shall be the same

as the fees of witnesses before circuit

xXxili

courts. The summons shall issue in the

name of the arbitrator or arbitrators or

a majority of them, shall be signed by the

arbitrators or a majority of them, shall

be directed to such person and shall be.

laiwad: th the same manner as subpoenas to

testify before a court of record. If any

person so summoned to testify refuses or

neglects to obey the ian upon

petition the circuit court may compel the

attendance of such person before the

arbitrator or arbitrators, or punish such

person for contempt in the same manner now

provided for the attendance of witnesses

or the punishment of them in the circnit

court. [CC 1859, §931; RL 1925, §2930; am

L 1925, ¢ 276, pt of §1; RL 1935, $4176;

RL 1945, §8707; RI. 1955, §188-7; HRS §658-

7 J

§658-8 Award; confirming award.

The award shall be in writing and

acknowledged or proved in like manner as

a deed for the conveyance of real estate,

X1V

and delivered to one of the parties or the

party’s attorney. A copy of the award

shall be served by the arbitrators on each

of the other parties to the arbitration,

personally or by registered or certified

mail. At any time within one year after

the award is made and served, any party to

the arbitration may apply to the circuit

court specified in the agreement, or if

none is specified, to the circuit court of

the judicial circuit in which the

arbitration was had, for an order

confirming the award. Thereupon the court

shall grant such an order, unless the

award is vacated, modified, or corrected,

as prescribed in sections 658-9 and 658-

10. The record shall be filed with the

motion as provided by section 658-13, and

notice of the motion shall be served upon

the adverse party, or the adverse party’s

attorney, as prescribed for service of

notice of a motion in an action in the

same court. [CC 1859, §932; RL 1925, §&

2941; am L 1925, c 276, pt of §1; RL 1945,

§8708; am L 1949, c 347, 81; RL 1955,

§188-8; HRS §658-8; am L 1972, c 90,

§2(f); am imp L 1984, c 90, 81]

§658-9 Vacating award. In any of

the following cases, the court may make an

order vacating the award, upon the

application of any party to the

arbitration:

(1) Where the award was procured by

corruption, fraud, or undue

means;

(2) Where there was evident

partiality or corruption in the

arbitrators, or any of then;

(3) Where the - arbitrators were

guilty of misconduct, in

refusing to postpone the

hearing, upon sufficient cause

shown, or in refusing to hear

evidence, pertinent and material

to the controversy; or of any

other misbehavior, by which the

XV1

rights of any party have been

prejudiced;

(4) Where the arbitrators exceeded

their powers, or so imperfectly

executed them, that a mutual,

final, and definite ward, upon

the subject matter submitted,

was not made,

Where an award is vacated and the

time, within which the agreement required

the award to be made, has not expired, the

court may in its discretion direct a

rehearing by the arbitrators. [cc 1859,

§933; RL 1925, §2932; am L 1925, c 276, pt

of §1; RL 1935, §4178; RL 1945, §8709; RL

1955, §188-9; HRS §658-9]

§658-10 Modifying or correcting

award. In any of the following cases,

the court may make an order modifying or

correcting the award, upon the application

of any party to the arbitration:

(1) Where there was an- evident

miscalculation of figures, or an

XVii

evident mistake in the

description of any person,

thing, or property, referred to

in the award;

(2) Where the arbitrators have

warded upon a matter not

submitted to them, unless it is

a matter not affecting the

merits of the decision upon the

matters submitted;

(3) Where the award is imperfect in

a matter of form, not affecting

the merits of the controversy.

The order may modify and correct the

award, so as to effect the intent thereof,

and promote justice between the parties.

[CC 1859, §934; am L 1911, © 115, §1; RL

1925, §2933; am L 1925, c 276, pt of §1;

RL 1935, §4179; RL 1945, §8710; RL 1955,

188-10; HRS §658-10]

658-11 Notice of motion to vacate,

modify, or correct; stay. Notice of a

motion to vacate, modify, or correct an

XViil

award, shall be served, in the manner

prescribed for service of notice of a

motion in an action, upon the adverse

party or the adverse party’s attorney

within ten days after the award is made

and served. For the purposes of the

motion any judge who might make an order

to stay the enforcement of a judgment, in

an action brought in the same court, may

make an order to be served with the notice

of motion, staying the proceedings of the

adverse party to enforce the award. The

record shall be filed with the motion as

provided by section 658-13. foc 1859,

§935; RL 1925, §2934; am L 1925, c 276, pt

of §1; RL 1935, §4180; RL 1945, §8711; RL

1955, §188-11; HRS §658-11; am L 1972, c

90, §2(g); am imp L 1984, c 90, §1]

§658-12 Entry of judgment. Upon

the granting of an order, confirming,

modifying, or correcting an award, the

same shall be filed in the office of the

clerk of the circuit court and this shall

xix

constitute the entry of judgment. An

appeal may be taken from such judgment as

hereinafter set forth. [CC 1859, §936; am

L 1911, ¢©¢ 115, §2; RL 1925, §2935; am 14

1925, c 276, pt of §1; RL 1935, §4181; RL

1945, §8712; RL 1955, §188-12; HRS §658-

i2; em L 1972, ¢ 90, 82th) }

§658-13 Record to be filed with

motion. (a) The party moving for an

order confirming, vacating, modifying, or

correcting an award shall at the time the

motion is filed with the clerk also file

the following papers with the clerk:

(1) The agreement; the selection or

appointment, if any, of an

additional arbitrator, or

umpire; and each written

extension of the time, if any,

within which to make the award;

and

(2) The award.

(b) Each notice, affidavit, or other

paper, used or to be used upon an

application to confirm, vacate, modify,or

correct the award, and a copy of each

order of the court upon such an

application, shall be filed with the clerk

the same as in a civil action. [L 1925,

c 276, pt of 81; RL 1935, §4182; RL 1945,

§8713; RL 1955, §188-13; HRS 8658-13; am

L 1972, c 90, §2(i)])

§658-14 Effect of judgment. The

judgment entered in accordance with

section 658-12 has the same force and

effect, in all respects as, and is subject

to ail provision of law relating to, a

judgment in an action; and it may be

enforced, as if it had been rendered in an

action in the court in which it is

entered. [L 1925, ec 276, pt of §1; RL

1935, §4183; RL 1945, §8714; RL 1955,

§188-14; HRS 8658-14; am L 1972, c 90,

§2(j)]

§658-15 Appeal when. Unless the

agreement for award provides that no

appeal may be taken an appeal may be taken

XXi

from an order vacating an award, or from

a judgment entered upon an award, as from

an order or judgment in an action,

otherwise no appeal may be had. [L 1925,

c 276, pt of 81; RL 1935, $4184; RL 1945,

§8715; RL 1955, §188-15; HRS §658-15]

XX11

APPENDIX B

FOR PUBLICATION

UNITED STATES COURT APPEALS

FOR THE NINTH CIRCUIT

RONALD CALDEIRA, ’

Plaintiff-Appellant, No. 87-2959

Vv q D.C. No.

. * CV-85-0869-HMF

COUNTY OF KAUAI, et al.,

Defendants-Appellees. OPINION

Appeal from the United States District Court

for the District of Hawaii

Harold M. Fong, Chief Judge, Presiding

Argued and Submitted

November 18, 1988—Honolulu, Hawaii

Filed February 2, 1989

Before: Richard H. Chambers, Diarmuid F. O’Scanniain

and Stephen S. Trott, Circuit Judges. .

Opinion by Judge Trott

SUMMARY

Courts and Procedure

Affirming a judgment finding a termination proper, the

court held that arbitration proceedings are entitled to preclu-

sive effect in subsequent federal proceedings.

Appellant Ronald Caldeira alleged, pursuant to 42 U.S.C.

§ 1983, that his employer, County of Kauai, violated his con-

957

APPENDIX B

958 CALDEIRA v, COUNTY OF KAUAI

stitutional rights when it terminated his employment. He also

alleged his former union was liable as a co-conspirator with

derendant Countv under 42 U.S.C. § 1985(3). Caldeira

asserted twelve “episodes” of alleged wrongdoing by the

detendants which were ostensibly designed to effect his ulti-

mate discharge. “Episode” eleven was the crux of his section

1983 claims. He disobeyed an order to do some yard and jani-

torial work because he considered it a demotion. As a result,

he was suspended and discharged. An arbitrator found that

the work orders were proper. Caldeira was insubordinaie. and

the County had proper cause to dismiss him. The Hawai

Fifth Circu:t aifirmed. The district court granted defendants’

mouon tor summary judgment. The district court judge ruled

that ne was oreciuded from considering “episode” eleven

because the Hawaii state court had confirmed the arbitration

award, making '* biading upon the federal district court

under the Fuil i ath and Credit Statute.

{i] The state court’s confirmation of the arbitration award

constitutes 2 juaicial proceeding for purposes of 28 U.S.C.

§ 1738 and must be given the full faith and credit it would

receive under state law. [2] Three basic questions musi be

answered in the affirmative before collateral estoppel may be

applied. [3] Because the same occurrence underlies both

actions, the first prerequisite of issue preclusion is met. [4]

The state court’s confirmation of the arbitrator’s award was a

hnal judgment on the merits. [5] The same parties were

involved in both the state and federal proceedings. [6]

Because the minimal procedural requirements of the due pro-

cess clause were satisfied, [7] Caldeira was properly barred

from pursuing his section 1983 claims in federal court by the

prior Hawaii proceedings. [8] Because the defendants alleged

wrongdoings arising from “episodes” one through ten consti-

tuted neither the cause in fact nor the proximate cause of

Caldeira’s injury [9] the district court correctly concluded

that Caldeira was collaterally estopped from attempting to

establish some other “improper” cause for his discharge. [10]

CALDEIRA Vv, COUNTY OF KAUAI 959

Finally, Caldeira failed to prove his 42 U.S.C. § 1985(3)

claim.

COUNSEL

Robert A. Smith, Honolulu, Hawaii, for the plaintuff/

appellant.

Warren C.R. Perry, Lihue, Hawaii, for the defendant/

appellee County of Kauai.

Charles K.Y. Khim, Honolulu, Hawaii, for the defendant/

appellee Hawaii Government Employees’ Association.

OPINION

TROTT, Circuit Judge:

Ronald Caldeira appeals from an adverse summary judg-

ment in his civil rights action against his former employer

and union. Caldeira alleged, pursuant to 42 U.S.C. § 1983.

that his employer, County of Kauai (“County”), violated his

constitutional rights when it terminated his employment.

Caldeira also alleged his former union, Hawaii Government

Employee's Association (“Union”), was liable as a co-

conspirator with defendant County under 42 U.S.C.

§ 1985(3). The district court granted summary judgment in

favor of both the County and the Union. We affirm.

FACTS AND PROCEEDINGS

Ronald Caldeira was hired as a lifeguard by defendant

County in 1978. Caldeira held this position from 1978 until

960 CALDEIRA Vv, COUNTY OF KAUAI

he was discharged on October 11, 1983. Caldeira alleged that

beginning in late 1978 or early 1979, the County developed

and engaged in a conspiracy to effect his discharge without

just cause. Caldeira also alleged that defendant Union joined

in this conspiracy with the County beginning in June 1980.

The gravamen of Caldeira’s civil rights claim is that he had

a substantive due process right to employment by virtue of

the clause in a collective bargaining agreement which pro-

vided that, as a county employee, he would not be terminated

except for proper cause. To substantiate his claim, Caldeira

asserted twelve “episodes” of alleged wrongdoing by the

defendants which were ostensibly designed to effect his ulti-

mate discharge.

The district court approached the disposition of the defen-

dants’ summary judgment motion in terms of the alleged

twelve “episodes.” “Episodes” one through ten involved

alleged wrongdoing by defendant County to develop a nega-

tive work record and hostile work environment for Caldeira

in order to effect his eventual discharge. “Episodes” three

through ten also involved wrongdoing by defendant Union,

in which Caldeira claimed it conspired with the County by

acquiescing in the scheme to effect his discharge by failing to

represent him adequately and thereby promote the develop-

ment of his negative work record and hostile work environ-

ment.

As the disirict court recognized, “episode” eleven was “the

crux of [Caldeira’s] section 1983 claims against defendant

County.” Excerpt of Record (ER) 78 at 3. It involved inci-

dents occurring during the pool’s closing in 1983, when

Caldeira was ordered to do some yard and janitorial work.

Because he considered this a demotion in his work status,

Caldeira disobeyed these work orders. As a result, Caldeira

was suspended and discharged by the County. Pursuant to the

collective bargaining agreement with the County, defendant

CALDEIRA Vv. COUNTY OF KAUAI 961

Union invoked the arbitration procedure and represented the

plaintiff therein.

“Episode” twelve involved the alleged wrongdoing of the

defendants to distort and misrepresent the record presented

to the arbitrator to prevent Caldeira from having a fair hear-

ing and thereby recover his job.

On January 15, 1985, the arbitrator found that the work

orders were proper, Caldeira was insubordinate, and the

County had just and proper cause to dismiss him. On July 16,

1985, Caldeira filed this action in the federal district court.

On September 25, 1987, the Hawaii Fifth Circuit affirmed the

arbitration decision.

On October 9, 1987, the district court granted defendants’

motion for summary judgment. The district court judge, Har-

old M. Fong, ruled that he was precluded from considering

“episode” eleven because the Hawaii state court had con-

firmed the arbitration award, making it binding upon the fed-

eral district court under the Full Faith and Credit Statute, 28

U.S.C. § 1738. Judge Fong concluded that once the

“linchpin” (“episode” eleven) of Caldeira’s §§ 1983 and 1985

causes of action was removed, “episodes” one through ten

were not sufficient to sustain Caldeira’s claims, as they were

not the cause of Caldeira’s discharge. Judge Fong then ruled

that, as to “episode” twelve (the arbitration itself), Caldeira

had presented no evidence from which a jury could infer the

existence of a conspiracy between the two defendants.

Judgment was entered dismissing Caldeira’s action on

October 13, 1987. On October 26, 1987, the district court

denied Caldeira’s motion for reconsideration. Caldeira

timely appeals.

962 CALDEIRA v. COUNTY OF KAUAI

ISSUES ON APPEAL

1. Did the district court err in giving preclusive effect to the

Hawaii state court judgment upholding Caldeira’s dis-

charge?

2. Did the district court err in failing to find a conspiracy

between defendant County and defendant Union?

III

STANDARD OF REVIEW

We review de novo a district court’s ruling on the availabil-

ity of res judicata both as to claim preclusion and issue pre-

clusion. Guild Wineries and Distilleries v. Whitehall Co., 853

F.2d 755, 758 (9th Cir. 1988). If available, we review the dis-

trict court’s application of the doctrine for abuse of discre-

tion. Eilrich v. Remas, 839 F.2d 630, 632 (9th Cir.), cert.

denied, 109 S.Ct. 60 (1988). A grant of summary judgment is

reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876

(9th Cir. 1986).

DISCUSSION

A. Preclusive Effect of State Proceedings

It is well established that, even in a suit under section 1983,

28 U.S.C. § 1738 requires federal courts give the same “full

faith and credit” to the records and judicial proceedings of

any state court that they would receive in the state from

which they arise.’ Migra v. Warren City School Dist. Bd. of

Title 28 U.S.C. § 1738 provides in pertinent part:

The records and judicial proceedings of any court of any .. . state

CALDEIRA Vv. COUNTY OF KAUAI 963

Educ., 465 U.S. 75 (1984): Allen v. McCurry, 449 U.S. 90

(1980). It ts equally well settled that 28 U.S.C. § 1738 requires

federal courts give an administrative adjudication reviewed

by a state court the same “full faith and credit” the adjudica-

tion would enjoy in the state’s own courts. Mack v South Bay

Beer Dist., Inc.. 798 F.2d 1279, 1283 (9th Cir. !986)(citing

Marrese v. American Academy of Orthopaedic Surgeons, 470

U.S. 373 (1985); McDonald v. City of West Branch, 466 U:S.

284 (1984)).?

While the Supreme Court has not directly addressed the

issue Of whether an arbitrator’s decision that has been

reviewed by a state court is entitled to preclusive effect, see,

e.g., Byrd, 470 U.S. at 223 (“The question of what preclusive

effect, if any, the arbitration proceedings might have is not yet

before us ... and we do not decide it”), it has consistently

held that an unreviewed arbitration decision does not pre-

clude a federal court action. See, e.g., McDonald, 466 U.S. at

288-92; Barrentine v. Arkansas-Best Freight System, Inc., 450

U.S. 728, 742-45 (1981); Alexander v. Gardner-Denver Co.,

415 U.S. 36, 56-60 (1974).

... Shall have the same full faith and credit in every court within

the United States . . . as they have by law or usage in the courts of

such state ... from which they are taken.

*The federal courts have frequently: fashioned federal common law rules

of preclusion where § 1738 does not: apply. In the context of unreviewed

administrative proceedings, issue preclusion has been upheld in subse-

quent lawsuits where the administrative agency acted in a “judicial

capacity” in resolving disputed issues of fact properly before it which the

parties have had an adequate opportunity to litigate. University of Tennes-

see v. Elliott, 478 U.S. 788, 797-98 (1986) quoting United States v. Utah

Constr. & Mining Co., 384 U.S. 394, 421-422 (1966)); Eil/rich v. Remas, 839

F.2d at 632. This common law rule of preclusion, however, has not been

extended to arbitration hearings, “in part on the ground that arbitration

cannot provide an adequate substitute for a judicial proceeding in protect-

ing the federal statutory and constitutional rights that § 1983 is designed to

safeguard.” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 223 (1985).

964 CALDEIRA v. COUNTY OF KAUAi

[1] However, the considerations that motivated the

Supreme Court to deny preclusive effect to unreviewed arbi-

tration decisions are not present in a case like the one before

us, which involves a reviewed arbitration decision. The

Supreme Court has declined to create a common law bar to

relitigation of unreviewed arbitration decisions, reasoning

that because arbitration is not a “judicial proceeding” within

the meaning of section 1738, preclusion is not statutorily

required. See McDonald, 466 U.S. at 288. Here, in contrast,

the plain language of section 1738 controls, requiring us to

give the state court’s determination preclusive effect. The

state court’s confirmation of the arbitration award constitutes

a judicial proceeding for purposes of section 1738, and thus

must be given the full faith and credit it would receive under

state law. See Rider v. Pennsylvania, 850 F.2d 982, 994 (3d

Cir. 1988), cert. denied, — S.Ct. —, (U.S. Dec. 12, 1988)(No.

88-488)(giving preclusive effect in a subsequent Title VII suit

to a state court’s review of an arbitrator’s decision).

To determine whether the requirements of issue preclusion

have been satisfied, this court must look to the law of the state

in question. Takahashi v. Board of Trustees, 783 F.2d 848,

850 (9th Cir.), cert. denied, 476 U.S. 1182 (1986); 28 U.S.C.

§ 1738. If, under Hawaii law, Caldeira is precluded from liti-

gating his claims in state court, he cannot pursue them in fed-

eral court unless the prior state proceedings did not provide

him a full and fair opportunity to present his claims. Kremer

v. Chemical Constr. Corp., 456 U.S. 461, 480-81 (1982).

1. Preclusion Under Hawaii Law

As the district court noted, the “linchpin” of Caldeira’s sec-

tion 1983 action rests on the allegation that defendant

County terminated his employment “when no good cause

existed therefore.” ER 34 at 5. The district court concluded

that this substantive due process claim had been raised and

decided by the state circuit court. It held that Hawaii preclu-

CALDEIRA Vv. COUNTY OF KAUAI 965

sion law would therefore prevent Caldeira from relitigating

the claim in state court.

{2] Under Hawaii law, as generally, three basic questions

must be answered in the affirmative before “collateral

estoppel,” or issue preclusion, may be applied: “(i) Was the

issue decided in the prior action identical with the issue pres-

ented in the present action? (2) Was there a final judgment on

the merits in the prior action? (3) Was the party against whom

the doctrine is asserted a party or in privity with a party to the

previous adjudication?” Silver v. Queen's Hospital, 63 Haw.

430, 436, 629 P.2d 1116, 1121 (1981)(citation omitted).

[3] Isolating the alleged wrongful act is critical to the first

inquiry—identity of the issue. In this case, a single event, the

October 11, 1983 discharge, gave rise to both state and fed-

eral proceedings. Pursuant to the Union’s collective bargain-

ing agreement, Caldeira availed himself of an arbitration

hearing to challenge the termination of his employment.

After a two-day arbitration hearing, the arbitrator found that

Caldeira was insubordinate in the face of reasonable and

legitimate work orders, and that “proper and just cause”

existed for the October discharge. CR 60 at 32. The state cir-

cuit court, in confirming the arbitrator’s award, necessarily

determined that proper cause existed for Caldeira’s discharge

due to insubordination. This was the identical issue raised by

Caldeira in “episode” eleven of his federal claim. By invoking

the Constitution and section 1983, Caldeira has merely pres-

ented a new legal theory upon which he seeks to recover. See

Mir v. Little Co. of Mary Hosp., 844 F.2d 646, 651-52 (9th

Cir. 1988); see also Takahashi, 783 F.2d at 851 (section 1983

action barred when it merely asks to look at contractual right

of employment from a different angle). Because the same

occurrence underlies both actions, the first prerequisite of

issue preclusion is met.

[4] Similarly, it cannot be seriously contested that the state

court’s confirmation of the arbitrator’s award was anything

966 CALDEIRA v, COUNTY OF KAUAI

but a final judgment on the merits. Confirmation of the arbi-

tration decision constitutes an entry of judgment under

Hawaii Rev. Stat. § 658-12. Section 658-12 provides:

Upon the granting of an order confirming, modi-

fying, or correcting an award, the same shall be filed

in the office of the clerk of the circuit court and this

shall constitute the entry of judgment. An appeal

may be taken from such judgment as hereinafter set

forth.

Furthermore, Hawaii Rev. Stat. § 658-14 specifies the effect

of that judgment:

The judgment entered in accordance with Section

658-12 has the same force and effect in all respects

as, and is subject to all the provisions of law relating

to, a judgment in an action; and it may be enforced,

as if it had been rendered in an action in the court in

which it is entered.

[5] Finally, the third prerequisite of issue preclusion is eas-

ily satisfied. The same parties were involved in both the state

and federal proceedings.

Appellant relies largely on Bottini v. Sadore Management

Corp., 764 F.2d 116 (2d Cir. 1985), to support his proposition

that arbitration proceedings are never entitled to preclusive

effect in a subsequent federal proceeding, even where a state

court has reviewed the arbitrator’s decision. Such reliance is

misplaced.

Bottini involved a building superintendent who was dis-

charged for unsatisfactory job performance due, at least in

part, to his absence from work on Sunday mornings while

attending meetings of the Jehovah Witnesses. An arbitrator

subsequently found good cause for the discharge. The arbitra-

tor’s decision was challenged by Bottini in state court. After

CALDEIRA v. COUNTY OF KAUAI 967

his petition was denied, Bottini brought no further appeal. He

then commenced a Title VII action in federal district court,

aileging religious discrimination. That action was dismissed

on res judicata grounds. On appeal, the Second Circuit

reversed, holding that the state proceedings did not constitute

a judgment on the merits of Bottini’s Title VII action, and did

not afford Bottini a full and fair opportunity to litigate his

Title VII claim.

Bottini is clearly distinguishable from the instant case.

Unlike Hawaii Rev. Stat. §§ 658-12 and 658-14, the New

York statute involved in Bottini, Article 75, CPLR, allowing

for review of an arbitrator’s award, does not provide that con-

firmed arbitration awards have the effect of a state court judg-

ment and may be enforced as such.

Furthermore, unlike the arbitration and state court pro-

ceedings in this case—each of which were concerned with

whether proper cause existed for Caldeira’s discharge—

neither the arbitration nor the state court proceedings in

Bottini addressed the religious discrimination claim. See also

Rider, 850 F.2d at 992 n.12 (distinguishing Bottini on similar

grounds).

2. Full and Fair Opportunity : Litigate

Before a person can be denied access to federal courts

through the preclusive effect of a state court proceeding, it

must be established that he received a “full and fair

opportunity” to litigate his claim in the state proceedings.

Kremer, 456 U.S. at 480-81; see also Haring v. Prosise, 462

U.S. 306, 317-18 (1983)(“As a general matter, even when

issues have been raised, argued, and decided in a prior pro-

ceeding, and are therefore preclusive under state law,

‘{r]Jedetermination of [the] issues [may nevertheless be] war-

ranted if there is reason to doubt the quality, extensiveness,

or fairness of procedures followed in prior litigation’ ”)

968 CALDEIRA Vv. COUNTY OF KAUAI

(quoting Montana v. United States, 440 U.S. 147, 164 n.11

(1979)).

When determining whether a party received a full and fair

opportunity to litigate an issue, the inquiry is whether the

minimum due process requirements guaranteed by the four-

teenth amendment are satisfied. The Supreme Court, in

Kremer, explained this inquiry in the following manner:

Our previous decisions have not specified the source

or defined the content of the requirement that the

first adjudication offer a full and fair opportunity to

litigate. But for present purposes, where we are

bound by the statutory directive of § 1738, state pro-

ceedings need do no more than satisfy the minimum

procedural requirements of the Fourteenth Amend-

ment’s Due Process Clause in order to qualify for the

full faith and credit guaranteed by federal law.

456 U.S. at 481.

[6] The minimal procedural requirements of the due pro-

cess clause were clearly satisfied in this case. Caldeira had a

“full opportunity to present [his contentions] on the record”

during the state proceedings. Kremer, 456 U.S. at 483; see

also Rider, 850 F.2d at 991-92 (due process requirements

examined in light of both the arbitration and state court pro-

ceedings). Caldeira was represented by counsel during the

course of the two-day arbitration hearing where he submitted

documentary evidence and exhibits, called witnesses, cross-

examined witnesses, and testified on his own behalf. His

attorney objected to evidence on the record and submitted

post-hearing briefs.

Caldeira was duly served with defendant County’s motion

for confirmation of the arbitration award, filed a memoran-

dum in opposition to the motion, and made oral argument

during a hearing before the state circuit court. He filed a

CALDEIRA v. COUNTY OF KAUAI 969

motion for reconsideration of the order confirming the arbi-

tration award, submitted an original as well as a supplemental

memorandum, and made oral argument in support of the

motion. This motion was subsequently denied.’ Pursuant to

Hawaii Rev. Stat. § 658-9, Caldeira filed a motion to vacate

the arbitration award in which he argued the award was pro-

cured by “corruption, fraud or undue means.” This motion

was denied for lack of evidence.

Still undaunted, Caldeira filed a petition for writ of manda-

mus, prohibition or certiorari to the Hawaii Supreme Court,

on the assumption that this was his only means of seeking

review of the state court’s confirmation order. The petition

was dismissed. Caldeira then appealed the denial of his

motion to vacate, as well as the order confirming the arbitra-

tion award, to the Hawaii Supreme Court. This appeal was

dismissed as untimely.* One might ask, “How many games

must the defendant win before the match is finally over?”

3Caldeira objects to the summary manner in which the state court’s con-

firmation order was rendered. Specifically, he draws attention to the fact

that Hawaii Rev. Stat. § 658-13 requires only the arbitration agreement and

the arbitrator’s award be filed as the record in conjunction with a motion

for confirmation. The record indicates, however, that the state court was

presented with more than the collective bargaining agreement and the

award before rendering its confirmation order. Nevertheless, as the Elev-

enth Circuit has recognized, “(t]he teaching of Kremer ... is that federal

courts must accord preciusive effect to issues litigated and decided on the

merits, even though the review on the merits is sharply limited.” Sykes v.

McDowell, 786 F.2d 1098, 1103 (i ith Cir. 1986).

Caldeira similarly objects to the limited argument held on the County’s

motion for confirmation of the arbitration award. During oral argument on

the County’s motion, however, Caldeira elected only to argue that the

County’s motion was time-barred. Thus, Caldeira is hardly in a position to

complain; he had adequate opportunity to challenge the arbitrator’s award

on a variety of other grounds. See Hawaii Rev. Stat. §§ 658-9 and 658-10.

In any event, the subsequent motion for reconsideration, and argument

held on that motion, squarely attacked the menits of the arbitrator’s deci-

sion.

*Caldeira was apparently under the mistaken belief that the state circuit

court’s confirmation order was unappealable. Thus, by the time his errone-

ous assessment was corrected, it was too late to do so. In any event, his fail-

ure “to avail himself of the full procedures provided by state law does not

constitute a sign of their inadequacy.” Kremer, 456 U.S. at 485.

970 CALDEIRA Vv. COUNTY OF KAUAI

[7] [t is overly apparent that Caldeira received a full and

fair opportunity to litigate his claim as measured by minimal

due process. He is thus barred from pursuing his section 1983

claims in federal court by the prior Hawaii proceedings.

3. “Episodes” One Through Ten

[8] The district court noted that the substance of Caldeira’s

federal claim was the alleged wrongful termination of his

employment arising from “episode” eleven. Because it had

been decided in the judicially confirmed arbitration award

that the discharge was self-inflicted by Caldeira’s insubordi-

nation in the face of a valid work order, the court found itself

“bound to accept this causal connection.” ER 82 at 4. Accord-

ingly, the district court found that the alleged wrongdoings of

the defendants arising from “episodes” one through ten con-

stituted neither the cause in fact nor the proximate cause of

Caldeira’s injury. Jd. We agree.

{9} Summary judgment in favor of the defendants was

appropriate in regard to these alleged “episodes.” The district

court correctly concluded that, as a matter of law, Caldeira

was collaterally estopped from attempting to establish some

other “improper” cause for his discharge. See, e.g., Wozniak

v. DuPage County, 845 F.2d 677 (7th Cir. 1988)(where it was

determined in a prior mandamus action that proper cause

existed for denying plaintiff an excavation permit, subse-

quent § 1983 action alleging defendants conspired to refuse

issuance of the permit was properly dismissed on collateral

estoppel grounds).

B. Section 1985(3) Conspiracy Claim

[10] The substance of Caldeira’s.section 1985(3) claim was

that the Union conspired with the County to effect his dis-

charge by allegedly failing to adequately represent him during

grievance and arbitration proceedings. On appeal, he con-

CALDEIRA Vv. COUNTY OF KAUAI 971

tends the district court erred in granting summary judgment

on this claim. We find no error.

First, to prove a section 1985 conspiracy between a private

party and the government under section 1983. the plaintiff

must show an agreement or “meeting of the minds” by the

defendants to violate his constitutional rights. Fonda v. Gravy.

707 F.2d 435, 438 (9th Cir. 1983)(citing Adickes v. S. 17. Kress

& Co.. 398 U.S. 144, 152 (1970)). The district court correctlv

conciuded that Caldeira had wholly tailed in this regard and

that his conspiracy allegations were unsupported bv any evi-

dence. circumstantial or otherwise. that would convince a

“fair-minded jury” to find in his favor. ER 82 at 3.

Second, pursuant to the above analysis. Caideira failed to

satisfy the causal relationship between the alleged acts done

in furtherance of the “conspiracy” and his resulting injury.

See Johnson v. Duffy, 588 F.2d 740, 743-44 (9th Cir. L978)" A

person subjects another to the deprivation of a constitutional!

right. within the meaning of section 1983, if he does an affir-

mative act, participates in another's affirmative act, or omits

to perform an act which he is legally required to do that causes

the deprivation of which the complaint is made. . . . (Empha-

sis added)”).

Third, the absence of a section 1983 deprivation of rights

precludes a section 1985 conspiracy claim predicated on the

same allegations. Cassettari v. Nevada County, Cal.. 824 F.2d

735, 739 (9th Cir. 1987)\(citing Dooley v. Reiss, 736 F.2d

1392, 1395 (9th Cir.), cert. denied, 469 U.S. 1038 (1984)).

Finally, Caldeira never alleges invidiously discriminatory,

racial or class-based animus, which is necessary to state a

claim under section 1985(3). United Brotherhood of Carpen-

ters v. Scott, 463 U.S. 825, 834-35 (1983); Griffin v. Brecken-

ridge, 403 U.S. 88, 102 (1971).3

5Consistent with the post hoc rationalizations that pervade his claims,

Caldeira suggests in his reply bnef that we remand so he may be given leave

€ 972 CALDEIRA Vv. COUNTY OF KAUAI

CONCLUSION

The district court judgment is

AFFIRMED.

to further amend his complaint to allege that as a Portuguese he is a mem-

ber of a class protected under section |983(3). Caldeira’s retrospective

attempt to phrase his case in “national-origin” terms is not persuasive. In

any event, it would not be sufficient to overcome the other deficiencies of

his section 1985 claim.

PRINTED FOR

ADMINISTRATIVE OFFICE—U.S. COURTS

BY BARCLAYS / ELECTROGRAPHIC—SAN FRANCISCO—441 5} 588-1155

The summary, which does not constitute a part of the opinion of the court, is

APPENDIX C

STATE OF HAWAII

In the Matter of

Arbitration

Between

HAWAII GOVERNMENT

EMPLOYEES’ ASSOCIATION,

)

and Y RONALD CALDEIRA

)

AFSCME 152,

Union Grievance of

DEPARTMENT OF PUBLIC

WORKS

COUNTY OF KAUAI

Employer

AWARD OF ARBITRATOR

This arbitration was initiated by the

Hawaii Government Employees’ Association,

AFSCME, Local 152, AFL-CIO, herein "Union"

against the County of Kauai Department of

Public Works, herein "Employer" on behalf

of Ronald Caldeira, herein "Grievant".

The grievance is for a three day

APPENDIX C

suspension and for discharge.

The hearing was held in Lihue, Kauai,

on September 27 and 28, 1984.

Exhibits for Employer were marked as

"County Exhibits"

introduced were:

Joint Exhibit 1

County Exhibit A

County Exhibit B

County Exhibit C

and the Exhibits

Labor Agreement:

July 1, 1981 to June

30, 1983

Job Description of

Recreation Assistant

Ber 2 for County of

Kauai.

Position Description

of Recreation

Beeaecent Il, SR 13

for Position No. 1652,

County of Kauai, dated

September 17, 1975.

Standard Operating

Procedures, Kapaa

Swimming Pool.

County Exhibit D

County Exhibit E

County Exhibit F

County Exhibit G

County Exhibit H

Station Log (Daily)

for Kapaa Pool by

Grievant from 9-17-83

to 10-11-83.

Memorandum to County

Engineer for Director

of Recreation re:

Issuance of

Operational Manual to

Grievant.

Three day suspension

memorandum to

Grievant, dated

September 26, 1983.

Letter dated October

17, 1983 discharging

Grievant effective

November 1, 1983.

County of Kauai

Employee History

Record of Grievant.

County Exhibit I

County Exhibit J

Union Exh:ibit I

Four photographs,

dated September 27,

1983 showing condition

of yard and ground

under bleachers at

Kapaa Pool.

Six photographs, dated

September a 1983

showing condition of

men’s and women’s

showers, women’s

showers, and yard and

ground under

bleachers.

Photograph, dated

September 27, showing

condition of yard at

Kapaa Pool. (Same

photograph as

contained in County

Exhibit 1.)

Union Exhibit 2

Union Exhibit 3

Union Exhibit 4

Photograph, dated

September 27, 1983

showing condition of

ground under bleachers

at Kapaa Pool.

Photograph, dated

September at. 1983

showing condition of

ground under

bleachers.

Photograph, dated

September ats 1983

showing condition of

men’s shower.

(Similar to photograph

in County Exhibit J.)

Appearances for the parties were:

For the Employer:

Warren Cos Perry,

Esq.

Second Deputy County

Attorney

For the Union: Charles Rss Khim,

Esq.

Also present:

For the Employer: Herbert Doi

County Personnel

Director

For the Union: Davis Yogi

Ray Emura

Witnesses were:

Philip Kekahu

Wilson Miyashiro

Gordon Shibao

Lawrence Kitamura

Sid Kini

Ronald Caldeira (Grievant)

The Grievant Ronald Caldeira was

suspended for three days, October 1, 2,

and 3, 1983. Then by letter dated October

17, 1983 Grievant was discharged effective

November 1, 1983. The suspension and

discharge were separate actions, but both

were based on work performance which were

characterized as being insubordinate to

prior work orders.

Grievant was the Recreation Assistant

II assigned to the Kapaa swimming pool.

Grievant was i. charge of the. pool

facility and sole worker from January 13,

1978 to discharge (County Ex. H). His

duties were to supervise the activities of

the pool and to maintain the pool, the

bleachers, restrooms, showers, and the

grounds (County Exs. A and B).

Sometime in April of 1983, the

filtration system for the pool became

inoperable, and there were considerable

problems in the installation of the new

filtration system. Because of public

complaints about the condition of the pool

and the length of time to make this pool

operable, Philip Kekahu of the Kekabe Pool

and Sid Kini of the Waimea Pool were

temporarily assigned to work at Kapaa Pool

and to assist in the installation of the

new filtration system.

On September 16, 1983, in the

presence of Lawrence Kitamura, County

Engineer, Wilson Miyashiro, Director of

Recreation, County of Kauai, instructed

Grievant that his duties were to cut

grass, dig weeds and to brick-scrub the

showers. Brick-scrub is when an abrasive

soft stone is used to scrub the tile walls

and floors which satacaatniaiad of accumulated

soap film and dirt cannot be removed by

soap or cleansing chemicals (Tr.I 97, 98).

The other Recreation Assistant IIs Kekahu

nae

and Kini were assigned to the pool itself

(Tr.I 97), and their duties were to drain

the pool, clean the algae, scrape and

paint the pool. They were also to assist

the Contractor in the installation of the

filtration system so that it would be

operable.

The Kapaa Pool consisted of the pool

itself, bleachers on two lateral sides of

the pool, restrooms and showers at the

rear side. The front and one lateral side

had grass borders that were narrow in

width but ran the length of the

boundaries. Under the bleachers’ were

square areas called beds that were four

feet square. There were 32 to 34 beds

under each of the two bleachers which were

sandy and in which weeds grew.

Mr. Miyashiro and Gordon Shibao,

Superintendent of Parks and Recreation,

went to the Kapaa Pool several times a

week to check on the installation of the

new filtration system for the pool. Both

testified that they were not satisfied

with Grievant’s work. As to weeding, Mr.

Miyashiro went to one bed and demonstrated

how to weed the bed and how the bed should

appear after the weeding (no weeds

visible). This demonstration took 2 and

1/2 minutes, but Mr. Miyashiro testified

that 5 to 10 minutes would be an

acceptable time to weed one bed. Also Mr.

Miyashiro testified that he demonstrated

to Grievant how to scrub the restrooms.

On September 26, 1983, the weeding

not being done to Mr. Miyashiro’s

satisfaction, Grievant was ordered not to

weed but to scrub the restrooms (Tr.Il

104). The cleaning was to be completed by

October 5, 1983. Also on this day, Wilson

Miyashiro in the presence of Gordon Shibao

gave Grievant the suspension notice

(County Exhibit F, dated September 26,

1983). The suspension was for the three

days of October 1, 2 and 3, 1983. The

notice recited the prior orders to weed

and mow, scrub and clean the showers and

restrooms and then stated:

"My inspection of your work

progress is that the men’s

shower and washroom facilities

is totally unsatisfactory as

there is still white film of

soap deposits on the walls and

the floors still appear to be

filthy. I have noticed that you

have not started scrubbing work

on the women’s’ shower~ and

restroom facilities."

* * * * *

“Wank apparent disregard of

lawful orders issued to you by

competent authority (Supervising

Lifeguard Hookano and myself) to

perform general housekeeping and

groundskeeping work, constitutes

insubordination and I am

therefore suspending you three

(3) days without pay, effective

October 1 through October 3,

1983. ;

Further occurrence of

insubordination or failure to

perform satisfactorily will lead

to more severe disciplinary

measures."

Grievant reported to work on October

4, 1983 but left at 11 a.m. on sick leave

because of pains in his left hand and did

not work on October 5, 1983. Grievant had

cut the palm of his left hand on September

17, 1983 while cutting the grass with a

"cut cane knife" (machete) and reported

the cut to Wilson Miyashiro (County Ex. D

- Grievant’s daily log of 9-17-83).

Grievant returned to work on October 8,

1983. On October 9, 19s3., Wilson

Miyashiro and Gordon Shibao inspected the

Kapaa Pool and found the restroom areas

not satisfactorily scrubbed and ordered

Grievant to report to a meeting at the

County Engineer Lawrence Kitamura’s office

on October 11, 1983. At this meeting

Grievant was notified that effective

November 1, 1983 his employment with the

County of Kauai was terminated.

On October 17, 1983, the termination

letter was given to Grievant which recited

the orders and events from September 16,

1983 to date of letter which were the

causes for termination.

Because the letter summarizes’ the

County’s reasons for suspension and

discharge it is quoted in full:

"Dear Mr. Caldeira:

This Leciee reduces’ to

writing the discussion which

took place at a meeting I had

with you on October 11, 1983.

Others present at the meeting

were: Messrs. Ray Emura, Kauai

Division Director (Acting) of

the HGEA; Wilson Miyashiro,

Director of Recreation; and

Gordon Shibao, Superintendent of

Parks and Recreation. Mrs.

Lillian Sakaguchi, Private

Secretary, was also in

attendance to take notes of this

meeting.

At the meeting, we

discussed your work record and

job performance as a Recreation

Assistant II, SR 13, assigned to

the Kapaa Swimming Pool. More

specifically, we focused on your

disregard of lawful orders

issued to you by your immediate

supervisor, and your non-

compliance with appropriate job

assignments and responsibilities

at the Kapaa Swimming Pool.

On September 16, 1983, at

about 10:15 you were ordered to

remove weeds from under’ the

bleachers and to scrub down the

walls of the ladies’ restroom by

September 20, 1983. You agreed

at the time you. did have

necessary supplies and tools to

perform the _ work. You also

agreed that the work would be

completed by September 20, 1983.

Your work progress was monitored

by your immediate supervisor at

about 5:30 p.m. on Saturday,

September 17, 1983, whereby only

ten of approximately 30, 4’ x 4’

bays under the Mauka bleachers

and a portion of the lawn next

to the restrooms were cleaned.

On Tuesday, September 20,

1983, at about 10:30 a.m., Mr.

Gordon Shibao, Superintendent of

Parks and Recreation and your

immediate supervisor, Wilson

Miyashiro, arrived at the Kapaa

Pool to follow up on- your

progress. You were asked by

your supervisor whether your

your work and you said that it

was not. You were also asked

whether you were able to

complete the ordered assignment

by the end of this work day to

which you said that you didn’t

think so. You were then asked

how long it would take you to

complete the work to which you

Said, “maybe two days".

On September 21 and 24,

1983, your supervisor visited

the Kapaa Swimming Pool and

found your assigned tasks to be

either incompleted or

unsatisfactorily performed.

You were suspended for

three days effective October 1

through 1983 for being

insubordinate to prior orders

issued by your supervisor. You

were also advised that further

occurrences of insubordination

or failure to perform

satisfactorily would lead to

more severe disciplinary action.

In addition, on September

26, 1983, you were ordered to

stop weeding due to your

unsatisfactory progress. Mr.

Miyashiro ordered you to scrub

down the ladies’ restroom before

October a % 1983. This

assignment included the

scrubbing of walls in the shower

and restroom as well as the

footbath and floor. At that

time, you were again advised

rs) that failure to comply with the

order would lead _ to severe

disciplinary action or the

termination of your employment

for the overall good of the

public service.

On October 4, 1983, Mr.

Miyashiro went to the Kapaa

Swimming Pool to inspect your

work progress. He found that

only the footbath walls were

cleaned and that less than 5% of

your assigned tasks were

completed satisfactorily. You

were not working at the time as

you had called in sick earlier

that morning because you were

experiencing pain in your left

hand. On October 5, 1983, you

again took sick leave because of

pains in your left hand. On

October 8, 1983 you worked as

scheduled.

On October 9, 1983, Messrs.

Miyashiro and Shibao visited the

Kapaa Swimming Pool and found

that you had not satisfactorily

complied with Mr. Miyashiro’s

order to scrub down the restroom

area. Consequently, you were

advised to be present at a

meeting in my office on October

it, 1983.

After discussing the above,

you were given verbal

notification that effective

November i 1983, your

employment with the County of

Kauai will be terminated for the

good of the service. Your

disregard of lawful orders

issued by competent authority

constitutes insubordination and

your inefficient and careless

manner in which you perform your

duties cannot be tolerated.

Such poor performance and

insubordination by any employee

is detrimental to the efficiency

of government service.

Please be advised that this

letter shall serve as written

notice to you of your dismissal

from service effective November

i, 1983.

Very truly yours,

LAWRENCE KITAMURA

County Engineer"

At this point the organization chart

as to personnel and supervisors for the

County Pools is helpful in understanding

the positions of the persons involved.

COUNTY OF KAUAI

COUNTY ENGINEER

Lawrence Kitamura

DIRECTOR OF RECREATION

Wilson Miyashiro

SUPERVISING LIFEGUARD

Isaac Hookano

KAPAA POOL KEKAHA POOL WAIMEA POOL

Ronald Philip Sid Kini

Caldeira

(Grievant )

County Exhibit D is the daily station

ae of the Kapaa Pool from September 17,

1983 to October 11, 1983. The log is an

hourly account of work time and is in

Grievant’s handwriting and is certified as

true and correct with Grievant’s

Signature. The log covers’ fourteen

working days. A summary of the log showed

the hours spent by Grievant in his

assigned tasks and the dates his superiors

were at the pool:

Saturday, September 17:

Pursuant to Wilson Miyashiro’s orders

- 2 hours spent on cleaning out

bathrooms and 5 hours in pulling

weeds along and under bleachers

(Gordon Shibao at Kapaa Pool).

Sunday, September 18:

1 hour to clean bathroom - 7 hours

pulling weeds along and under

bleachers.

Monday, September 19:

1 ney to clean bathroom - 7 hours

pulling weeds and adding chlorine to

pool (Gordon Shibao and Wilson

Miyashiro at Kapaa Pool in the

morning). ;

Tuesday, September 20:

1 hour to clean bathroom - 7 hours

pulling weeds and adding chlorine to

pool (Gordon Shibao and Wilson

Miyashiro at Kapaa _ Pool in the

morning. Grievant ordered to

complete weeding of bleachers and

cleaning of women’s restrooms in two

working days).

Wednesday, September 21:

8 hours pulling weeds along Girls’

side of pool and along front wall

(Wilson Miyashiro took photographs of

entire grounds in the morning).

Saturday, September 24:

8 hours of pulling weeds on men’s

side of pool (Gordon Shibao and

Wilson Miyashiro at Kapaa Pool at end

of work day).

Sunday, September 25:

8 hours pulling weeds on men’s side

of pool.

Monday, September 26:

3 hours pulling weeds on men’s side

of pool. 5 hours to clean women’s

bathroom with the block. At. 11:28

a.m. Grievant given notice of

suspension for three days, October l,

2 and 3, 1983 by Wilson Miyashiro in

presence of Gordon Shibao. Grievant

ordered to complete the cleaning of

women’s bathroom by October 5th.

Tuesday, September 27:

8 hours scrubbing women’s bathroom

(Wilson Miyashiro and Gordon Shibao

at Kapaa Pool. Mr. Shibao took

photographs of grounds, showers and

restrooms).

Wednesday, September 28:

8 hours of scrubbing women’s

bathroom.

Tuesday, October 4:

2 hours scrubbing women’s shower. At

11 a.m. took sick leave because of

pain in palm of left hand from cut of

September 17.

Saturday, October 8:

8 hours scrubbing women’s shower room

with block, Ajax and a green pad.

Sunday, October 9:

8 hours scrubbing women’s bathroom

with block, Ajax and green pad

(Gordon Shibao and Wilson Miyashiro

inspected Kapaa Pool ; and told

Grievant to attend a meeting in the

County Engineer’s office on October

11,1983).

Tuesday, October 11:

2 hours at County Engineer’s office

where received notice of termination.

5 hours pulling weeds and 1 hour

scrubbing women’s bathroom.

From Grievant’s daily log it is

documented that in ten (10) working days

from September 17 through September 28,

Grievant spent 53 hours weeding and

cutting grass and 5 hours cleaning the

bathrooms and 21 hours’ scrubbing. the

women’s bathroom. From October 4 through

October 11, 1983, in 3 and 1/2 working

days, Grievant spent 19 hours scrubbing

the women’s bathroom. (There is no log

for October 10, 1983 and therefore not

known whether it was a work day.)

County Exhibits I and J and Union’s

Exhibits 1, 2, 3 and 4 are thirteen

photographs taken by Gordon Shibao on

September 27, 1983 of the Kapaa Pool. Six

of the photographs are of the grounds

under and around the Mauka bleachers, four

of the photographs are of the grounds

under and around the Makai bleachers, one

photograph was of a wall in the men’s

shower, one photograph was of the wall and

floor of the men’s restroom and one

photograph was of a wall and floor of the

women’s shower.

Because the photographs cannot be

included in these facts, brief

deacrivtions thereof are made. The

photographs of the men’s shower shows two

square feet of white film on a blue tile

wall between two shower arms. The

photograph of the men’s restroom entrance

shows a white film on a four by eight foot

area on the floor with a clear line

separating the cleaned inner portion of

the tiled floor, but with the white film

Six inches wide continuing along the wall,

the blue tile wall has a white film above

the floor area. The photograph of the

women’s shower shows the white film of

varying widths on the rust colored tile

floor next to the wall and a white film on

a pink tile wall.

The photographs a the grounds under

and around the Mauka bleachers show tall

weeds growing next to the fenceline and

the base of the front and rear of the

bleachers and around a utility pole and

tree stump; and under the bleachers in the

beds, the photographs show growth of weeds

from sparse to a very definite growth.

The photographs of the grounds around and

under the Makai bleachers show an abundant

and tall weed growth next to a hollow tile

wall and garbage can; and under’ the

bleachers in the beds, the photographs

show some beds with very few weeds to beds

with an abundant growth.

The testimony of the County Engineer,

the Superintendent of Parks and Recreation

and the Director of Recreation were all to

the effect that the cutting of grass,

weeding under the bleachers and the

cleaning of the bathrooms and restrooms

were so unsatisfactory that discliplinary

action was necessary.

As to weeding, from Mr. Miyashiro’s

testimony that five to ten minutes was

more than a sufficient time to complete

the weeding in a four by four foot bed and

that there were 64 to 68 beds under the

bleachers, the weeding could be completed

within eleven hours of work time. Philip

Kekahu who replaced Grievant at Kapaa Pool

until his promotion to Supervising

Lifeguard, testified that he took four to

six hours to weed under One bleacher and

thus would take eight to twelve hours for

both bleachers. This testimony verified

Mr. Miyashiro’s estimate of the time

needed to weed under both bleachers.

As to the white film on the restroom

and shower walls and floors. both Philip

Kekahu and Sid Kini who performed the same

jobs as Grievant at the Kekaha and Waimea

Pools testified that with daily

maintenance of cleaning and hosing down

the walls and floors, the white film would

not be present and brick-scrubbing would

not be necessary.

Sid Kini who wae called as a Union

witness testified that in October of 1983

he was instructed to clean the showers

because they were "pretty bad, pretty

@ dirty”.

.-»e-if a daily routine is

kept up and it’s not neglected,

scrubbing like the way I did at

the .... it shouldn’t have had

to be done. I would say out of

negligence, it was really kind

of bad so it had to be done."

"....over a period of time,

like, even your own bathroom, if

you got a bathroom” shower,

bathroom tub, if you don’t scrub

your shower, you probably know

what can happen. Dirt builds,

accumulation of dirt. And to

get in there and get it off you

got to get in there and

physically scrub it off or use

some kind of chemical to get rid

ef 46,"

Mr. Kini testified that this was the

condition of the shower at Kapaa Pool at

the time of the suspension and termination

(Tr.II 25, 26).

There was testimony that Grievant did

not have a lawn mower to mow the grass.

This was noted at the top of his daily log

sheets in County Exhibit D. Arrangements

had been made for Grievant to borrow a

lawn mower from the Kapaa Neighborhood

Center which was close to the _ pool.

However, Grievant was not allowed to

borrow the lawn mower because he_ had

broken it (Tr.II 55,56). Grievant had

told Isaac Hookano the Supervising

Lifeguard that he could not borrow the

lawn mower, and this was known by Wilson

Miyashiro, Director of Recreation. On

September 16, 1983, the County Engineer

Kitamura was at Kapaa Pool and after

noting that there were “weeds all over the

place" (Tr.II 6) instructed Grievant to

cut the grass with a machete or "cut cane

knife” when he was told Grievant did not

have a lawn mower (Tr.II 44).

Grievant’s prior disciplinary record

is contained in County Exhibit H on August

30, 1979 and again on October 4, 1979,

Grievant received letters of warning. On

July 7 and 8, 1980 Grievant was suspended

for insubordination. On January 28, 1981,

Wilson Miyashiro recommended a five day

suspension for substandard performance but

no action was taken by the County

Engineers. On June 17, 1981, there was a

ten day suspension by the County Engineer

which the Mayor reduced to five days of

which four days were deferred. From

February 1, 1982 to March 13, 1982,

Grievant received twenty working days of

suspension for a November gz % 1981

incident of negligence and dereliction to

duty.

On the prior disciplinary record,

County Engineer Kitamura testified that he

looked at this record but that because

these actions were under a prior

administration under which he did not hold

office, he wanted to give Grievant a

chance to prove to Mr. Kitamura’s

satisfaction that the work could _ be

performed, hence the suspension rather

than a termination (Tr.II 6, 7). The

termination was based on what happened

after the notice of suspension when in Mr.

Kitamura’s opinion Grievant still did not

perform in regard to orders given as to

duties (Tr.II 9).

While not a cause listed for the

suspension or termination, the question of

who was responsible for the inoperability

of the filtration system at Kapaa Pool was

introduced. On cross examination Wilson

Miyashiro was asked whether Grievant was

the person responsible for the

inoperability of the filtration system.

Mr. Miyashiro’s answer was that he did not

accuse him. The relevancy of this line of

questioning was the Union’s assertion that

Grievant was made a scapegoat for the

closed Kapaa Pool and the unstated reason

for termination was the broken filtration

system. Mr. Miyashiro did testify that in

his opinion the filtration system’s

condition was due to the operational

manual not being followed and that whoever

was operating the system would be

primarily responsible. For Kapaa Pool,

Grievant was the only one assigned to the

pool (Tr.I 135, 136, 137). Mr. Miyashiro

further testified that on Sunday the pools

are vacuumed and then the filtration

systems are backwashed_ so that the

vacuumed particles are ejected from the

system. On occasion, it was discovered

that particles were returning to the pool

which indicated that the operational

manual was not being followed. This

problem only existed at Kapaa Pool during

Grievant’s tenure (Tr.I 158, 159, 160).

DISCUSSION

The County’s position as stated in

its Post-Hearing Brief is that Grievant

was given clear and reasonable work

instructions which he understood. The

performance of work was substandard in

both quality and quantity. He was

reprimanded, and when the reprimands

failed to improve the performance,

suspension was imposed with a warning that

further substandard performance’ would

result in more severe discipline. The

substandard performance continued, and

Grievant was terminated from employment.

Insubordination, the reason for

termination, need not be a clear and

unequivocal refusal to carry out

assignments but may be the "lack of

cooperation and a generally disaffected

attitude toward authority" citing School

District #8 vs Superior Court, 102 Arizona

478, 480, 433 P. 2d. 28, 30 (1967) and

Muldrow vs Board of Public Instruction,

189 So. 2d 414 (Fla. App. 1966) as

authority. Because the pool was

inoperative and Grievant’s sole job was to

maintain the grounds and facilities,

Grievant could have and should have so

maintained within the hours he claimed to

have so worked. The failure to maintain

and to comply with instructions was

insubordination both as to the suspension

and the termination.

The Union’s position as stated in its

Post Arbitration and Reply Brief is thta

there was no just cause for termination in

that:

Rs Grievant was not insubordinate;

y He received disparate treatment

in discipline;

3s Orders were not lawful for his

class specifications and his job

description did not provide for manual

labor as assigned;

4. Progressive discipline was not

applied in that he was terminated only

eight calendar days after completion of

suspension and only six working days from

the date the notice of suspension was

given.

The Union in its post arbitration

brief cited Elk Roofing Co. 56 LA 256, 258

(1971) for its definition of

insubordination which was:

"A refusal to obey some order

which a supervisor is entitled

to give and have obeyed, and a

wilful disregard of express or

implied directions of an

employer."

Using this definition, Union contends that

the County could not order the cleaning of

yard, restrooms and showers, because this

manual labor was not within Grievant’s

Position Description and Class

Specification, and thus, there could be no

insubordination to an order that could not

be given. Further, to be insubordinate,

there must be a wilful disregard of an

order, which Grievant did not do. Instead

Grievant did work, however inadequate his

performance may have been.

To the Union’s contention that

Grievant could not be ordered to clean the

yard, restrooms and showers because this

work was not within Grievant’s Position

Description and Class Specifications

(County Exs. A and B), it is noted that

both Exhibits specifically state that the

employee would be "providing attendant and

housekeeping services". Also at the time

of hiring Grievant was issued the Standard

Operation Procedures Kapaa Swimming Pool

(County Ex. C) which was then reviewed

item by item by Grievant and his

supervisor Isaac Hookano. This manual

outlined the duties at the pool which

included maintenance of showers’ and

restrooms. Paragraph VI is entitled Yard

and General Maintenance and Subparagraph

1 thereof provides that mowing will be

done every other week, and Subparagraph 4

provides that daily maintenance will be

performed during the course of the day

whenever usage is minimal with the

following priorities:

"as Peel, which includes

everything within the

confines of the retaining

wall.

b. Restrooms, which includes

showers, footbaths,

toilets, urinals, basins,

tile walls and floors, etc.

Ce Pump Room, which will

include valves,

chlorinator, filtration

system, overflow sump,

intake/pump, Sump,

switches, mixing tank, etc.

d. Yard, which will include

bleachers, fence, gates,

etc."

From the Subparagraph +4 the County

could order the performance of work listed

in the above quoted priorities.

As to the question whether Grievant’s

conduct was insubordinate, this presents

a more difficult question. Grievant’s

daily station logs which were in his

handwriting and certified to be true and

correct, reveal that in the ten working

days before his suspension, Grievant spent

53 hours weeding and 26 hours scrubbing

the restrooms. The Kapaa Pool has a grass

area that would be equivalent to the grass

area of two residential homes. The beds

to be weeded were approximately 1,000

square feet or equivalent to two large

garden areas. Considering the size of

these areas there is no questions that the

yard and bleacher area could have been

weeded and cut in the 53 hours of work and

the restrooms cleaned in the 26 hours.

Yet, the photographs introduced _ into

evidence clearly show the failure to do

the jobs as ordered. From the above, one

can only conclude that Grievant was either

inept or loafing. However, Grievant was

not disciplined for either of these,

instead he was suspended and terminated

for insubordination.

The more usual forms of

insubordination involve a confrontation

with an express refusal to comply or

selective compliance either as to orders

or as to supervisors. However,

insubordination may take the form of a

stated intention to comply but with

noncompliance over a period of time being

of such magnitude, a wilful disregard of

the work order or a persistent refusal to

obey a legitimate order can be imputed.

The two cases cited by the County are to

this effect in that the “lack of

cooperation and a generally disaffected

attitude” were found to be

insubordination. These variations of

insubordinate conduct are not inconsistent

with the commonly accepted definition of

Insubordination which is: "Not submitting

to authority". ai

For this Grievance, the County has

the burden of proving that Grievant’s

failure to do the work as in wilful

disregard of an order or was a persistent

refusal to obey a legitimate order, and

thus not submitting to Authority or

insubordination. While the County has

clearly sustained the burden of proving

that Grievant could have and should have

completed the work ordered within the time

specified, the critical question is

whether there was the "lack of cooperation

and generally disaffected attitude" of

such magnitude as to constitute

insubordination. The actions of an

employee to be of such magnitude that

wilfulness can be imputed without a stated

refusal to comply are aptly expressed in

the everyday expression: “Actions speak

louder than words”.

From the facts, Grievant’s actions

spoke louder than words, and his conduct

showed a wilful disregard to work orders

and a persistent refusal to obey

legitimate orders. On September 16, 1983,

Grievant was ordered to remove weeds under

the bleachers and to scrub the walls of

the ladies restrooms by September 20,

1983. Grievant’s superior Wilson

Miyashiro physically demonstrated how to

do the work. On September 20th, four work

days after the order, the Superintendent

of Parks and Recreation Gordon Shibao and

Wilson Miyashiro went to Kapaa Pool to

check the progress of Grievant’s work.

The work was not completed and upon being

asked how much longer it would take to

complete the work, Grievant said maybe two

days. On September 21st and 24th, the

Grievant’s next two working days, Mr.

Miyashiro checked the work progress.

Because the work was not completed,

Grievant was given a three day suspension

(October 1, 2 and 3, 1983). Photographs

of the incomplete work were taken on

September 27, 1983 (County Exs. I and J

and Union Exs. 1, 2, 3 and 4).

It is clear that Grievant understood’

the orders’ given, had set his’ own

completion time and knew that his

supervisors would check his work on an

almost daily basis. The maximum

completion time for weeding the beds under

the bleachers was two days, Grievant did

not complete this weeding in six days of

work. This conduct clearly indicates that

Grievant wilfully chose to disregard the

orders and manifested his persistent

refusal to submit to authority by not

doing in six work days what he could have

easily done in two days.

In the notice of suspension, Grievant

was warned that further insubordination

and failure to perform. satisfactorily

would result in more severe disciplinary

action. With his prior suspensions, this

was a loud and clear warning that further

unsatisfactory performance could result in

discharge.

On September 26, 1983, Grievant was

told to stop weeding because of the

unsatisfactory progress and was ordered to

scrub the ladies restroom. Grievant spent

a half day on the 26th and full days on

the 27th and 28th of September doing this

work. Returning from suspension, Grievant

resumed scrubbing the ladies restroom on

October 8th. On the morning of October

9th, Grievant was told to report to the

County Engineer’s office on October 11th.

Grievant’s work in scrubbing the ladies’

restroom in two full days and two half

days was so unsatisfactory that he was

terminated effective November 1, 1983.

Again, it is clear that Grievant’s conduct

indicated that he wilfully chose to submit

to authority by not doing the work he

could have easily done.

Reviewing the hours spent in weeding

and scrubbing (pages 11 through 13 of this

Award) unquestionably there was loafing on

the job. When viewed with the warnings

and almost daily checks on progress, there

emerges the element of defiance to

authority and a persistent refusal to obey

legitimate orders. Grievant’s defiance

was not an open confrontation and refusal.

Instead, Grievant disregarded the orders

by doing only some of the work ordered and

this in an unsatisfactory manner.

Grievant’s actions spoke louder than any

words. By not doing the work he could

have easily done, Grievant was not only

loafing but was also defying the authority

of his superiors by persistently and

wilfully disregarding their orders.

As to the issue of Grievant not

having a lawn mower to cut the grass, the

Arbitrator notes that the photographs

introduced into evidence show tht in the

yard areas, the —— and weeds were

next to the fence, wall, bleachers and

pole. These weeds could not be cut by a

lawn mower and would need a sickle or

machete to be trimmed.

As to the Unions contention of

disparate treatment in that Sid Kini was

not disciplined when he did not complete

the cleaning of the men’s shower room, but

that Grievant was terminated when he did

not satisfactorily clean the women’s

restroom, from the testimony and _ the

record, the claim of disparate treatment

cannot be sustained. Mr. Kini was

assigned to the swimming pool itself to

make it operable which he apparently did.

The order to clean the men’s shower was an

isolated and incidental one, whereas

Grievant was ordered to devote his sole

working time to the primary duty of

weeding and cleaning the women’s

restrooms. The suspension and termination

went to Grievant’s failure to carry out

these orders.

As to whether progressive discipline

was applied by the County, the Union

contends that a termination eight days

after the suspension is proof in itself

that progressive discipline was not

applied. As contended on page 15 of the

Post Arbitration Brief the Union argues:

"In the instant case Caldeira

was not. progressively

disciplined. Only eight days

after his suspension, Caldeira

was terminated. This is an

unreasonable time to expect

Caldeira to improve his

behavior. The shortness of time

indicates the suspension was

just a pretext to mask _ the

intent to terminate Caldeira

from the outset."

The Arbitrator notes that progressive

or corrective discipline is not mandated

in the Labor Agreement or in the Hawaii

Public Employment Laws. Elkouri and

Elkouri, "How Arbitration Works", at page

630 states that it is axiomatic that the

degree of penalty should be in keeping

with the seriousness of the offense.

Arbitrator Whitley P. McCoy is quoted as

follows:

"Offenses are of two

general classes: (1) those

extremely serious offenses such

as stealing, striking a foreman,

ersistent refusa to obe a

legitimate order, etc., which

usually justify summary

discharge without the necessity

of prior wernings or attempts at

corrective discipline; (2) those

less serious infractions of

plant rules or of proper conduct

such as tardiness, absence

without permission, careless

workmanship, -insolence, etc.,

which call not for discharge for

the first offense (and usually

not even for the second or third

offense) but for some milder

penalty aimed at correction."

(underscoring added)

Further, it is pointed out that there is

considerable diversity of arbitral thought

in respec to progressive or corrective

discipline. Elkouri and Elkouri, infra,

at page 631 lists some of these various

views:

"1. There are cases in which

management was held

obligated to use corrective

discipline although there

was no indication that

management had ever

approved its use either by

the agreement or by

unilaterally instituting

corrective discipline in

the past.

2. It has been said that the

formalization of a

corrective discipline

program is a matter for

negotiations by the

parties, not for the

arbitrator. It also has

been said that it “is one

thing to determine whether

or not a contract permits

discharging an employee

under given circumstances, "

but that it "is entirely

another matter for an

arbitrator to conclude that

an employee’s discharge

violated a contract because

of something not in the

contract," that is, because

of the absence of a

corrective discipline

program where none is

specified by the agreement.

There are cases in which

discharge was upset where

the company had a

corrective discipline

system but failed to abide

by it.

Where an employer was

reluctant to suspend the

employee and used

counselling and warnings

instead (as predischarge

measures), this

demonstrated a desire to

help rather than hurt the

employee, an arbitrator

said, for which the

employer should not be

criticized.

Where there were "no

circumstances to suggest

that corrective discipline

would rehabilitate the

grievant sato a

satisfactoryemployee,"

discharge without

corrective discipline was

upheld.

In adopting a corrective

discipline program 4

company was held not to

have surrendered its right

to invoke summary discharge

for serious offenses

warranting such action.

Also, the mere fact that an

agreement specified the use

of corrective discipline

for some offenses did not

necessarily mean that it

must be used for all

offenses.

7. In sustaining discharge,

arbitrators sometimes have

stressed the fact that

corrective discipline had

been used without avail.”

As discussed on pages 23 and 24 of

this Award, Grievant’s actions were wilful

disregard of orders or were persistent

refusals to obey legitimate orders. As

such, the underscored part of the quote

from Elkouri and Elkouri is authority that

Grievant could have been summarily

discharged, and that corrective or

progressive discipline need not have been

used. As to corrective or progressive

discipline, the testimony of County

Engineer Lawrence Kitamura is revealing.

He testified" "I saw the pool

condition and I was wondering

what...transpired in regard to the pool

condition, itself, because I seen some of

the actions that was being taken by the

parks and recreation in regard to

Caldeira. Maintenance of the pool. And,

in my opinion, in comparison with the

other pools that we maintain, that Kapaa

pool was in a dilapidated condition

and...and lack of maintenance, basically.

Well, when I went there it was the pool

was out of service for quite sometime

because of breaking down of the

shiocinatne system. And when I went to

check there were weeds all over the place,

weeds under the bleachers, weeds coming

out of the concrete, weeds in the front

section. There’s also the pool area. The

bathrooms was dirty and required

maintenance on them. Just seems like work

hadn’t been done on it or very minimal

amount of work was performed on the pool,

itself, in regard to maintenance (Tr.II

6).

Mr. Kitamura then testified that with

the prior disciplinary record, he could

have terminated Grievant instead of

suspending him on September 26, 1983, but

since the disciplines were imposed prior

to his tenure in office, he decided,

",..to give Caldeira the chance to prove

to myself that he can perform the work, we

took the step disciplinary action instead

of going directly into termination (Tr.II

a ie

Mr. Kitamura futher testified that

the subsequent termination was not based

upon the suspension, "...but in further

actions, in other words, in regard to his

orders that was given him by his

Supervisors. He still did not perform in

regard to his duties, and therefore, which

led up to the termination of Mr.

Caldeira.'

Thus, even though the County could

have summarily discharged Grievant on

September 26, 1983, it chose to give

Grievant another chance to correct his

work and to submit to authority. But,

when the same behavior persisted,

termination was ordered. The fact that

there were only 15 days between the notice

of suspension and the notice of

termination does not flaw the termination.

When an Employer has a right to summarily

discharge, it is for the Employer to

determine at what point corrective

discipline is not effective, and with the

same offense continuing, to terminate.

The Arbitrator is not empowered to

award reinstatement based on his

substituted judgment that he would have

allowed more than 15 days for Grievant to

rehabilitate himself. The Arbitrator can

only make awards based on whether there

was "just cause" for the suspension and a

"just cause" for termination.

As a cross check to whether the

suspension and then the discharge were

just and proper, the Arbitrator used the

definition "just cause" found in Robert’s

Dictionary of Industrial Relations, Bureau

of National Affairs, Washington, D.C.

1971.

The definition provides in part:

"Professor Carroll R.

Daugherty has suggested seven

test questions for determining

*just cause’ for discipline.

Daugherty maintains that a "no

answer to any of the following

questions would normally

indicate that just cause for

discipline did not exist. His

test questions are:

(1) Was the employee’ given

advance warnings of the

possible or probable

disciplinary consequences

(2)

(3)

(4)

(6)

of his conduct?

Was the rule or order

reasonably related to the

efficient and safe

operation of the business?

Before administering

discipline, did the

employer make an effort to

discover whether the

employee did in fact,

violate a rule or order or

management?

Was the employer’s

investigation conducted

fairly and objectively?

Did the investigation

produce substantial

evidence or proof that the

employee was guilty as

charged?

Had the company applied its

rules, orders and penalties

without discrimination?

(7) Was the degree of

discipline administered in

the particular case

reasonably related to (a)

the seriousness of the

employee’s proven offense,

and (b) the employee’s

record of company service?"

(underscoring added)

Answers to the above quoted seven

tests as to the 3 day suspension of

September 26, 1983 and the discharge of

October 17, 1983 are Yes.

In brief, the facts show that when

the swimming pool at Kapaa became

inoperable in April of 1983, and up to the

suspension of September 26, 1983,

Grievant’s sole duty was to maintain the

yard and restroom areas. (Philip Kekahu

and Sid Kini were temporarily assigned to

Kapaa Pool to assist the contractor in

making the pool operable. ) In September

of 1983, the condition of the yard and

restrooms were such that the County

Engineer, the Superintendent of Parks and

Recreation and the Director of Recreation

ordered Grievant to do the job he should

have done in the prior five months.

Grievant was given numerous warnings as to

his performance and then given specific

orders to complete the cleaning and

maintenance on a date certain. Grievant

failed to complete the work which a worker

should have easily done. With the

suspension came another warning and a

specific order narrowing the scope of work

to cleaning the ladies restroom by October

5, 1983. Grievant again failed to do the

work as ordered.

The repeated orders by County

officials to clean these areas’ were

nothing more than ordering Grievant to do

his job. The photographs introduced into

evidence clearly show that Grievant did

not do his job.

With the Kapae swimming pool being

inoperable, of the four items in the above

quoted Paragraph VI, Subparagraph 4 of the

Standard Operation Procedures (pages 20

and 21 of this Award ) only two were

assigned to Grievant on a daily job basis.

This would indicate that what was ordered

was not unreasonable or burdensome.

Further, the organization chart on page 10

of this Award indicates that there were

two other County pools in Kekaha and

Waimea, and the testimony was that these

pools were adequately maintained by sole

employees. |

From the facts and with the quotes of

arbitral authorities, on September 26,

1983, the County could have summarily

discharged Grievant for persistent refusal

to obey legitimate orders, but instead

gave Grievant an opportunity to comply by

October 5, 1983. When the work was again

not completed, he was discharged effective

November i, 1983.

For the reasons discussed above, the

Arbitrator finds that the suspension

issued on September 26, 1983, was for

proper and just cause. The Arbitrator

further finds that as to termination, the

County has sustained its burden of proof

and the discharge issued on October 17,

1983 effective November 1, 1983 was for

proper and just cause.

The Arbitrator has no authority to

exercise leniency or clemency. The Labor

Agreement governing this Grievance

specifically restricts the Arbitrator to

finding whether the suspension and the

discharge were proper or improper. Only

with a finding that the suspension or the

discharge was improper may the Arbitrator

set aside, reduce or modify the actions.

Having found the actions of the County to

be proper, there can be no modification of

@ the suspension and of the discharge.

AWARD

The Grievance of Ronald Caldeira as

to suspension is denied. The Grievance of

Ronald Caldeira as to discharge is denied.

DATED: Honolulu, Hawaii, this 15th

day of January, 1985.

STANLEY LING

Arbitrator

STATE OF HAWAII

)

) SS

CITY AND COUNTY OF HONOLULU )

On this 15th day of January, 1985,

before me personally appeared STANLEY

LING, to me known to be the _ person

described in and who executed the

foregoing instrument and acknowledged that

he executed the same as his free act and

deed.

Notary Public

First Judicial Circuit

State of Hawaii

My commmission expires:

CERTIFICATE OF SERVICE

I hereby certify that copies hereof

were served upon the following persons by

mailing the same to them at the following

addresses on January 15, 1985.

CHARLES K.Y. KHIM, ESQ.

Kendall Building

888 Mililani Street, Suite 711

Honolulu, Hawaii 96813

Attorney for Union

WARREN C.R. PERRY

Second Deputy County Attorney

County of Kauai

Office of the County Attorney

4396 Rice Street

Lihue, Kauai, Hawaii 96766

Attorney for Employer

Stanley Ling

Arbitrator

APPENDIX D

IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT

STATE OF HAWAII

---00000---

DEPARTMENT OF PUBLIC

WORKS, COUNTY OF

KAUAI,

SPECIAL PROCEEDING

NUMBER 87-0017

Plaintiffs,

-versus-

HAWAII GOVERNMENT

EMPLOYEES’

ASSOCIATION, AFSCME

i182,

Defendants.

tt i i

TRANSCRIPT OF PROCEEDINGS

held before The Honorable Kei Hirano,

Judge, presiding on Friday, September 25,

1987.

REPORTED BY:

FARINCEE BOYKIN, C.S.R. NO. 106

OFFICIAL COURT REPORTER

STATE OF HAWAII, COUNTY OF KAUAI

APPENDIX D

€

APPEARANCES OF COUNSEL:

COUNTY ATTORNEY

COUNTY OF KAUAI, STATE OF HAWAII

BY: WARREN C.R. PERRY, ESQ.

Second Deputy County Attorney

4396 Rice Street

Lihue, Kauai, Hawaii 96766

CHARLES K.Y. KHIM, ESQ.

Attorney for Defendant,

Hawaii Government Employee’s

Association

888 Mililani Street

Honolulu, Hawaii 96813

ROBERT A. SMITH, ESQ.

Attorney for Grievant,

Ronald Caldeira

Century Square, Suite 1908

1188 Bishop Street

Honolulu, Hawaii 96813

~==G@0000---

I NDE X

Statement Dy Mr. Perry ......cecs

Statement by Mr. Khim ......eeees

Statement by Mr. Smith .......e6-

Further Statement by Mr. Perry ..

---o0000---

(The clerk called the case. )

& THE COURT: Good afternoon.

MR. PERRY: Warren C.R. Perry, on

behalf of the Movant, County of Kauai.

MR. KHIM: Good afternoon, Your

Honor; Charles K.Y. Khim, K-H-I-M, for the

Defendant, Hawaii Government Employees

Association.

MR. SMITH: Robert Smith, for

Grievant, Ronald Caldeira.

THE COURT: Proceed, Mr. Perry.

MR. PERRY: Your Honor, as was stated

Memorandum attached to the Motion, this

action right now is just purely to confirm

an Arbitrator’s Award that was rendered

pursuant to a Collective Bargaining

Agreement, and under Chapter 658, and be

confirmed by this Court. And at this time

that is exactly what the County --

THE COURT: Mr. Perry, do you have

any response to the Grievant’s memo where

they cite 658-8, stating that Motion for

Confirmation be filed within one year

& after the award is made?

MR. PERRY: Yes.

There are judicial precedence and, I

think, it’s well-settled law that there is

a tolling of the Statute of Limitations,

any Statute of Limitations, during the

pendency of any sort of an appeal taken to

challenge an action.

And, at this time, with Mr.

Caldeira’s pending challenge in the Hawaii

Public Employees Board, and, I guess,

ancillary challenge in the U.S. Federal

District Court, that the period for

confirmation be one year limitation as a

toll.

Another thing, at least the Hawaii

Court of Appeals has stated that one of

the grounds where you cannot confirm is

when there is no finality, and here we

have the Arbitrator’s Award, Mr. Ling’s

award, basically, de facto, final,

definite, and all the County of Kauai

right now is asking is for de jour,

validation of the award.

I’d like to point out to you the case

of Meyers versus The County of Orange, and

this is at 6 California App. 3rd, 971,

which stands for the proposition that

Statute of Limitations is tolled during

the period when exhausting administrative

remedies or in other ways challenging the

action.

THE COURT: Mr. Khim, would you like

to go first?

MR. KHIM: Thank you, Your Honor.

As you well know the HGEA lost the

arbitration, and we disagree with the

Arbitrator’s decision. However, under the

Statute, we have no recourse to vacate the

arbitrator’s award except if it fits

between one of four narrow grounds. And

while we think the Arbitrator was wrong I,

at this time, have no evidence of any one

of those four grounds, so I have no ground

@ to challenge the confirmation, Your Honor.

And that’s why the Union bargains for

arbitration to have it final and binding.

Obviously, in any kind of litigation

one side is not going to like the answer

that the judge or the arbitrator gives.

And we didn’t like the answer of

Arbitrator Ling. We thought he was wrong.

But arbitration is final and we will live

up to our end of the bargain in the

Collective Bargaining Agreement saying the

arbitration is final and binding.

If I might address the issue of

Statute of Limitations, Your Honor, and

the argument raised by Mr. Smith.

It’s a well-recognized rule that

pending an administrative proceeding the

Statute of Limitations is tolled, and it’s

found in AmJur, Limitation of Actions, as

well as the Hawaii Supreme Court has so

ruled in the McHenry versus McHenry case

—

which is found at 37 Hawaii 223, 1945. In

that case there was a prior state court

action that was improperly filed and

dismissed on that ground, and,

nevertheless, in a subsequent state action

the limitation period was tolled for the

subsequent action.

And, while not exactly on the facts

of this case, because it was a divorce

action and they were talking about the old

six-month waiting period rule,

nevertheless, the proposition stands for

the fact tha while there is a prior

proceeding during which the parties are

litigating the same issue, or the same --

basically, the same cause of action, that

the Statute of Limitations is tolled for

subsequent proceedings.

And I have also run across the case

that Mr. Perry has cited, and that case

stands, also, for the proposition that

even if the exhaustion of administrative

remedies is not absolutely warranted that

so long as there is winkhene administrative

proceeding being pursued, even though you

don’t have to exhaust that administrative

proceeding before going into court, the

Statute of Limitations will be tolled.

That’s my understanding of the prevailing

rule of law. That’s certainly the rule of

law in California.

And, if I might go into the rationale

behind such decisions, the Statute of

Limitations is meant to bar actions where

a party has not been bothered about it for

many years and is entitled to be free of

it because nobody has made any issue of

it. However, when the action is disputed,

be it in a court or an administrative

agency the party is not entitled to say of

the law I can be free of it because nobody

is making a big deal about it. That is

the doctrine behind the tolling of the

Statute of Limitations. And I think it’s

applicable herein.

In this case the Movant has been

vigorously litigating this case against

both the HGEA and the County of Kauai,

and, certainly, he has not allowed the

issue to drop.

And, if I might add, the clean hands

doctrine would also prohibit him from

coming into this court and saying that he

should be entitled to be relieved of any

kind of litigation based on this suit when

he, in fact, has been vigorously pursuing

it, not only in front of the Federal

Court, Your Honor, but before the Hawaii

Labor Relations Board.

Thank you, Your Honor.

THE COURT: Mr. Smith?

MR. SMITH: Your Honor, as the Court

understands from our Memorandum, this case

here comes about because Mr. Caldeiro, in

Federal Court, has a 1983 Civil Rights

action on file, alleging a long-standing

conspiracy concerning his discharge, going

back over the whole five years of his

employment with the County.

Nobody sought confirmation or a

vacation of the Arbitration Award, so for

some two and a half years all that’s

happened is the Federal Court litigation.

There’s nothing concerning the Arbitration

award in this Court.

Now, with two weeks to go before

we’re scheduled to jury trial in the

Federal Court, there’s a motion made to

have Judge Fong defer to arbitration

proceedings or to not proceed with the

Federal Court case because it’s alleged

the aribtration has a preclusive effect as

res judicata on the parties.

I cite the McDonald case, a 1984 U.S.

Supreme Court case, holding that there is

no preclusive effect when the arbitration

award has not been judicially reviewed.

That makes these parties come into court

now and try to join together in a motion

e to knock out the Federal Court case. I

think the Court should enforce the one

year period.

I’m not familiar with the cases cited

by Counsel, but if the Court has any doubt

about that I’d like time to brief those

cases. I would suggest to the Court

whether or not the one year period can be

tolled because there are administrative

proceedings pending, there still is going

to be terrible latches on the part of the

County here in seeking confirmation of the

award.

So, th Court disturb the track that

the Federal case is going on.

THE COURT: Mr. Perry?

MR. PERRY: One final thing I would

like to add besides what I have said.

I don’t think what Mr. Smith has

stated disputes the rationale the County

has provided so far. You’ve got to

remember that there is no prejudice to the

Grievant for confirming this award. And

there is a definite need for finality, and

the need to preserve judicial economy and

preventing vexatious and continuing

litigation.

And that is the whole substance of

this motion right now, to have some sort

of validation of the finality of the

award, and we can proceed on that.

Thank you.

THE COURT: Counsel, I’ve heard your

arguments, I’ve looked at your respective

memos, and the Court does agree with the

County of Kauai that the Statute has been

tolled, and, accordingly, the Motion to

Confirm is granted.

MR. SMITH: Well, Your Honor, may I

now inquire? I assume that the one year

period might bar any attempt to confirm

the award. If that is not the case, then

the question is whether the award should

be confirmed on the merits. That has not

been addressed. And, in that event, I’m

going to need to know from the Court

whether I’m entitled to time to prepare,

time to submit the whole record, which is

800 pages of documents in the _ whole

history of the employement, do I have a

right to discovery; all of those things.

The question is whether there’s a basis

for confirmation. That’s the question.

MR. KHIM: Your Honor, may I address

that issue.

The Statute is very clear, Your

Honor. The Statute is mandatory. The

Statute says:

The Arbitrator’s Award shall be

confirmed unless one of the four grounds

exists.

None of those four grounds have been

raised, Your Honor.

MR. SMITH: But, Your Honor, --

MR. KHIM: The Statute is further

clear on exactly what is necessary to put

in. And I’m sure you are as well aware of

these things. All you need is exactly

what Mr. Perry put in his Motion.

THE COURT: That’s right; and the

Motion is granted in that fashion.

MR. SMITH: Well, Your Honor, would

[I not have --

THE COURT: You take whatever steps

you want, Mr. Smith.

MR. SMITH: -- to submit a Motion to

Vacate the Award on the same basis. If

they can come in here and --

THE COURT: You do what you want.

The Motion is granted.

Mr. Perry, will you prepare the

Order.

MR. PERRY: I will, Your Honor.

(The hearing was adjourned at 1:20

P.M.)

--=-9g0O000---

STATE OF HAWAII )

COUNTY OF KAUAI )

I, FARINCEE BOYKIN, the Official

Court Reporter in and for the State of

Hawaii, County of Kauai, do hereby certify

that the foregoing pages, 1 through 12,

inclusive, comprise a full and correct

transcript of the proceedings had in

connection with the above-entitled cause.

DATED: September 26, 1987, at Lihue,

Kauai, Hawaii.

FARINCEE BOYKIN, C.S.R. NO. 106

OFFICIAL COURT REPORTER

NOTARY PUBLIC, STATE OF HAWAII

My commission expires 10-14-88

APPENDIX E

MICHAEL J. BELLES

County Attorney

e& WARREN C.R. PERRY

2nd Deputy County Attorney

County of Kauai

State of Hawaii

4396 Rice Street

Lihue, Hawaii 967866

Tel. No. (808)245-3688

Attorneys for Plaintiff

IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT

STATE OF HAWAII

DEPARTMENT OF PUBLIC S.P. NO. 87-0017

WORKS, COUNTY OF KAUAI

ORDER CONFIRMING

ARBITRATION AWARD

Plaintiff,

Vs.

HAWAII GOVERNMENT

EMPLOYEES’ ASSOCIATION

AFSCME 152,

Defendant.

i ee ee ee ee ee ee ee

CRDER CONFIRMING ARBITRATION AWARD

Plaintiff’s Motion to Confirm

Arbitration Award came to be heard by this

Court on September 25, 1987. Upon

receiving argument by counsel, and

reviewing the records and files herein,

APPENDIX E

the Court found as follows:

As Plaintiff and Defendant, on

March 30, 1984, entered into a collective

bargaining agreement (CBA) which provided

for, inter alia, the final resolution of

disputes arising under CBA through the

process of arbitration.

ae On January 15, 1985, Arbitrator

Stanley Ling rendered the subject

Arbitration Award as a means of resolving

finally a CBA grievance between Plaintiff

and Defendant.

as On or about April 4, 1985,

Grievant filed ae complaint against

Plaintiff, Defendant and Arbitrator Ling

in the State of Hawaii administrative

agency now known as the Hawaii Labor

Relations Board, seeking, inter alia, the

vacating of the Award.

4. The Hawaii Labor Relations Board

has not held a hearing on the substantive

allegations of said complaint, and

therefore has. not rendered a final

& decision thereon.

Based on such findings, as well as

argument of counsel and the records and

files herein, the Court made the following

legal conclusions:

1. Plaintiff filed this action

pursuant to Chapter 658, Hawaii Revised

Statutes (H.R.S.) and complied with all

applicable procedural requirements” set

forth therein.

ae Arbitrator Ling entered the

subject Award pursuant to his authority

under CBA, and the Award is not subject to

challenge under Sections 658-9 and -10,

H.R.S.

Se Pursuit by Grievant of his

administrative and federal claims which

challenge, inter alia, the validity of the

subject Award, has tolled the one-year

limitation period of Section 658-8, H.R.S.

NOW, THEREFORE, it is hereby the

decision of this Court and thereby this

Court so orders, that the subject

arbitration award be and is confirmed, and

that this Order shall constitute the entry

of judgment pursuant to Section 658-12,

DATED: SEPTEMBER 25, 1987

Judge of the Above-Entitled Court

APPENDIX F

IN THE UNITED STATES DISTRICT COURT

e FOR THE DISTRICT OF HAWAII

RONALD CALDEIRA, CIVIL NO. 85-0869

Plaintiff,

VS.

COUNTY OF KAUAT,

et al.,

Defendants.

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

AND TO DISMISS

Defendant’s motion to dismiss or in

the alternative for summary judgment was

heard by the court on September 28, 1987.

Robert A. Smith appeared for plaintiff

Ronald Caldeira, Charles Reds Khim

appeared for defendant Hawaii Government

Employee’s Association (HGEA) et al., and

Warren C.R. Perry appeared for defendant

County of Kauai et al. The court having

considered the materials on file and the

arguments of counsel finds as follows.

APPENDIX F

I. BACKGROUND.

A. Parties

Plaintiff Ronald Caldeira brings this

Suit under 43 U.S.C. sections 1983 and

1985. Plaintiff sues as defendants the

County of Kauai and present or former

employees of the County of Kauai, Eduardo

Malapit, Tony Kunimura, Henry Morita,

Laurence Kitamura, Gordon Shibao, Wilson

Miyashiro, Isaac Hookano, Phillip [sic]

Kekahu, and Sid Kini (hereinafter referred

to collectively as “defendant County")

under 42 U.S.C. section 1983. Plaintiff

sues his former union Hawaii Government

Employee’s Association (HGEA) and its

members (hereinafter referred to

collectively as “defendant HGEA") as co-

conspirators with defendant County under

42 U.S.C. section 1985(3).

B. Facts.

Plaintiff Ronald Caldeira was hired

as a lifeguard by defendant. County in

1978. The plaintiff held this position

from 1978 until November 1, 1983, when he

was discharged by defendant County. The

plaintiff alleges that beginning in late

1978 or early 1979, defendant County

developed and engaged in a conspiracy to

effect his discharge without just cause,

The plaintiff also alleges that defendant

HGEA joined in Chis conspiracy with

defendant County beginning in June, 1980.

More specifically, the plaintiff’s

alleges twelve "episodes" of alleged

wrongoing by the defendants designed to

effect his discharge. The plaintiff

contends that these “episodes" caused his

discharge, which in turn constitutes the

deprivation of his constitutional rights

substantiating his sections 1983 and 1985

causes of action.

The court approaches the disposition

of the defendant’s motion in terms of the

alleged twelve "episodes". "Episodes" one

through ten involve alleged wrongdoing by

defendant County to develop a negative

work record and hostile work environment

for the plaintiff to effect his eventual

discharge. "Episodes" three through ten

also involve alleged wrongdoing by

defendant HGEA, in which the plaintiff

claims it conspired with defendant County

by acquiescing in the scheme to effect his

discharge by failing to represent him

adequately and thereby prevent the

development of his negative work record

and hostile work environment.

"Episode" eleven is the crux of the

plaintiff’s section 1983 claims against

defendant County. It involves incidents

occuring during the pool’s closing in

1983, when the plaintiff was ordered to do

some yard and janitorial work. The

plaintiff considered a demotion in his

work status. The plaintiff disobeyed

these work orders. The plaintiff was

suspended and discharged by defendant

County, after which defendant HGEA invoked

the arbitration procedure and represented

the plaintiff therein.

"Episode" twelve involves the alleged

wrongdoing of the defendants to distort

and misrepresent the record presented to

the arbitrator to prevent the plaintiff

from having a fair hearing and thereby

recover his job.

On January 15, 1985, the arbitrator

found that the work orders were proper,

the plaintiff was insubordinate, and

defendant County had just and proper cause

to dismiss the plaintiff. On July 16,

1985, the plaintiff filed this action in

the federal district court. On September

25, 1987, a Hawaii state court affirmed

the arbitration decision.

Il. DISCUSSION

The plaintiff’s causes of action under 42

OE oe a sections 1983 and 1985 center

around his discharge by defendant County,

oo ee "episode" eleven. The court

therefore addresses first the efficacy of

"episode" eleven as substantiating his

causes of action. The court then turns to

a discussion of "episodes" one through ten

as possible substantiation, followed by a

discussion of "episode" twelve.

A. "Episode" Eleven.

It is well settled that 28 U.S.C.

section 1738 requires federal courts to

give an administrative adjudication

reviewed by a state court the same full

faith and credit the adjudication would

enjoy in the state’s own courts. Mack v.

South Bay Beer Distrib., Inc., 798 F.2d

1279, 1283 (9th Cir. 1986) (citing Marrese

v. American Academy of Orthopaedic

Surgeons, 470 U.S. 373 [1985]; McDonald v.

City of West Branch, 466 U.S. 284 [1984]).

In this case, a Hawaii state court has

affirmed the arbitration decision, which

found that the plaintiff was discharged

for just and proper cause arising from

"episode" eleven. The state’s affirmation

of the arbitration decision constitutes an

entry of judgment under Hawaii Rev. Stat.

section 658-12, which has a binding res

jJudicata and collateral estoppel effect on

other Hawaii courts. Santos v. State,

Dept. of Transp., Kauai Div., 64 Haw. 648,

646 P.2d 962 (1982).

Under the rule set forth in Mack,

then, the court must give the state court

affirmation of the arbitration decision

full faith and credit under 28 U.S.C.

section 1738. Specifically, the court

must accept as given that the plaintiff

was discharged for just and proper cause,

and that the plaintiff’s alleged

constitutional deprivation or injury,

being the discharge, was self-inflicted by

his insubordination in the face of a valid

work order by defendant County.

Accordingly, "episode" eleven cannot

substantiate the plaintiff’s section 1983

claims against the defendants.

B. "Episodes" One Through Ten.

Once the linchpin of the plaintiff’s

sections 1983 and 1985 causes of action

has been removed, i.e., “episode” eleven,

t '

the court must inquire whether "“episodes'

one through ten can substantiate his

sections 1983 and 1985 causes of action.

To determine this the court must examine

whether’ these ‘episodes" satisfy the

causation requirement inherent in ail

sections 1983 and 1985 causes of action.

Causation is an essential element of

every section 1983 and section 1985 cause

of action. Arnold v. JBM, 637 F.2d 1350,

1355 (9th Cir. 1981). In a section 1983

action, the plaintiff must show the

defendant caused a deprivation of his

constitutional rights. Id. In a section

1985 action, the plaintiff must show that

acts done in furtherance of a conspiracy

by defendant caused the plaintiff’s

injury. Id. Furthermore, the causation

requirement of sections 1983 and 1985 is

not merely cause in fact, but proximate

cause or legal causation. Id.

The court finds that the plaintiff

has failed to satisfy the causation

requirement for his sections 1983 and 1985

causes of action. To Satisfy the

requirement, the plaintiff must show a

causal connection between the defendant’s

alleged wrongful action and the alleged

deprivation. See Morton v. Becker, 793

F.2d 185, 187 (8th Cir. 1986) (citing

Arnold, 637 F.2d at 1355-56); see also

Lossman v. Pekarske, 707 F.2d 288, 291

(7th Cir. 1983); Reimer v. Smith, 663 F.2d

1316 & n.4 (5th Cir. 1981). The alleged

deprivation the plaintiff, as pled in the

complaint, was discharged from his

employment with defendant County in

Violation of the collective bargaining

agreement. The alleged wrongdoing of the

defendants, as evidenced by the the first

ten "episodes," is at best the development

of a negative work record and hostile work

environment to effect his discharge. The

discharge, however, was not caused by the

alleged wrongdoing of the defendants of

the first ten “episodes,” the discharge

was caused by che insubordination of the

plaintiff in the face of a proper work

order, as found by the arbitration and

confirmed by the state court. This court

is bound to accept this causal connection

as fact under Mack. The alleged

wrongdoing of the defendants, then, was

neither the cause in fact nor proximate

cause of the plaintiff’s deprivation.

Even if the court were to allow that

these "episodes" were in some way the

cause in fact of the plaintiff’s

deprivation, the court cannot see how

these "episodes" qualify as the proximate

cause of his deprivation. As stated

before, the plaintiff was insubordinate in

the face of a valid work order. To use

the language of tort law, cf. Martinez v.

California, 444 U.S. 277, 285 (1980);

Carey v. Piphus, 435 U.S. 247, 257-58

(1978); Arnold, 637 F.2d at 1355; Lossman,

107 F.2d at 291; Reimer, 663 F.2d at 1322

n.4, this insubordination was at least a

superceding intervening cause if not the

actual and sole proximate cause of his

deprivation.

Accordingly, "“episodes" one through

ten cannot substantiate the plaintiff’s

section 1983 and 1985 causes of action.

C, "Episode" Twelve.

The plaintiff attempts to

substantiate his section 1985 claim

against the county by alleging that

defendant HGEA conspired with defendant

County to effect plaintiff’s discharge by

allowing the presentation of a distorted

and incomplete record to be heard in the

arbitration proceeding.

To succeed ina section 1985 cause of

action the plaintiff must _ show: (i) «a

conspiracy, (2) to deprive any person or

class of persons of equal protection of

the laws or equal privileges and

immunities under the laws, (3) an act done

in furtherance of the conspiracy, and (4)

personal injury, property damage or a

deprivation of any right or privilege of

a citizen of the United States. See

Griffin v. Breckenridge, 403 U.S. 88, 102-

O3- (idTi)}. Furthermore, the plaintiff

must state facts with some degree of

particularity that the defendants’

participation or overt acts in the alleged

conspiracy were the proximate or legal

cause of his injury. Hewitt v. Grabicki,

596 F. Supp. 297, 304 (E.D. Wash. 1984)

(citing Arnold).

The court examines the causation

requirement first. The plaintiff alleges

that the defendant HGEA failed to present

a complete record of the negative work

record and hostile work environment

developed by defendant County to effect

his discharge. This comprises events

described above as "episodes" one through

ten. The discussion above, however, has

determined under a causation analysis that

"episodes" one through ten cannot

substantiate the plaintiff’s sections 1983

and 1985 causes of action. Thus, the

failure to present a record of these

"episodes" is not relevant and_ the

plaintiff does not satisfy the causation

requirement.

Regarding the Griffin deprivation

requirement, the discussion above has

determined that defendant County did not

deprive the plaintiff of his

constitutional rights. Namely, the court

is bound to accept the state court’s

affirmation of the arbitrator’s decision

that the defendant discharged the

plaintiff for just and preper cause. The

absence of a section 1983 deprivation of

constitutional rights precludes a section

1985 conspiracy claim predicated on the

same allegations. Cassettari v. Nevada

County, Cal., 824 F.2d 735, 739 (9th Cir.

1987) (citing Dooley v. Reiss, 736 F.2d

1392, 1395 [9th Cir.], cert. denied, 469

0.8. 1038 [1984]). Accordingly, the

plaintiff has suffered no deprivation, and

he therefore fails this Griffin

requirement as well.

The court further analyzes the

plaintiff’s failure to satisfy the other

Griffin requirements of a section 1985

cause of action under the standards for

summary judgment. Rule 56(c) of the

Federal Rules of Civil Procedure provides

that summary judgment shall be entered

when:

",..the pleadings, depositions,

answers to interrogatories, and

admissions on file, together

with the affidavits, if any,

show that there is no genuine

issue as to any material fact

and that the moving party is

entitled to a judgment as a

matter of law."

The moving party has the initial

burden of “identifying for the court those

portions of the materials on file that it

believes demonstrates the absence of any

genuine issue of material fact.” wre PF

Elec. Serv., Inc. Vv. Pacific Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th

Cif. 1987) (citing Celotex Corp. Vv.

Catrett, 106 S. Ct. 2548, 2553 [1986]).

The moving party must be able to show the

‘absence of a material and triable issue

of fact," Richards v. Neilsen Freight

Lines, 810 F.2d 898, 902 (9th Cir. 1987),

although it need not necessarily advance

affidavits or similar materials to negate

the existence of an issue on which the

opposing party will bear the burden of

proof at trial, see Celotex, 106 S. Ct. at

2553. But cf. id. at 2555-56 (White, J.

concurring).

If the moving party meets’ this

burden, then the opposing party may not

defeat a motion for summary judgment

absent any significant probative evidence

tending to support his claim. Commodity

Futures Trading Comm’n v. Savage, 611 F.2d

210, e262 (Sta Civ. ISTH}. The opposing

party cannot stand on his pleadings, nor

can he simply assert that he will be able

to discredit the moving party’s evidence

at trial. See T.W. Elec., 809 F.2d at

630. Similarly, legal memoranda and oral

argument are not evidence and do not

create issues of fact capable of defeating

an otherwise valid motion for summary

judgment. British Airways Bd. v. Boeing

Co., 585 F.2d 946, 961 (9th Cir. 1978),

cert. denied, 440 U.S. 981 (1979).

The standard for a grant of summary

judgment reflects the standard governing

the grant of a directed verdict. See

Eisenberg _ v. Insurance Co. of North

America, 815 F.2d 1285, 1289 (9th Cir.

1987) (citing Anderson v. Liberty Lobby,

inec,, i106 S$. -Ct. 2505, 2512 12966)).

Thus, the question is whether "reasonable

minds could differ as to the import of the

evidence." ,. Eisenberg, 815 F.2d at 1289.

Cr, Liberty Lonny, 106 8. Ct. at 2813

("T]he judge must ask not whether he

thinks the evidence favors one side or the

other but whether a fair-minded jury could

return a verdict for the plaintiff on the

evidence presented. The mere existence of

a scintilla of evidence in support of the

plaintiff’s position will be insufficient;

there must be evidence on which the jury

could reasonably find for the

plaintiff.").

When "direct evidence" produced by

the moving party conflicts with "direct

evidence” produced by the party opposing

Summary judgment, “the judge must assume

the truth of the evidence set forth by the

opposing party with respect to that fact.”

[.6, Biec.,, SOS F.2d at 631. Inferences

from the facts must be drawn in the light

most favorable to the opposing party. Id.

Inferences may be drawn both from disputed

facts that the judge is required to

resolve in favor of the opposing party.

Id.

Finally, an allegation of conspiracy

cannot survive an adequately supported

motion for summary judgment. Fonda v.

Gray, 707 F.2d 435, 438 (9th Cir. 1983)

(citations omitted); Hewitt 596 F. Supp.

at 305.

Having enunciated the pertinent legal

standards for summary judgment, the court

now applies them to the plaintiff’s

section 1985(3) claims against defendant

HGEA. An essential element of the

palintiff’s section 1985(3) cause of

action under Griffin is the existence of

a conspiracy. To prove a section 1985

conspiracy between a private party and the

government under section 1983, the

plaintiff must show an agreement of

"meeting of the minds" by the defendants

to violate his constitutional rights.

Fonda, 707 F.2d at 438 (citing Adickes v.

S.H. Kress & Co., 398 U.S. 144, 152

{[1970]). The parties must have shared a

conspiratorial objective. iG.

Specifically, the plaintiff must show that

defendant HGEA entered into an agreement

with defendant County to violate the

plaintiff’s substantive due process rights

during the arbitration proceeding. The

plaintiff would have the burden of proving

this element at trial.

Defendant HGEA submits affidavits of

HGEA attorney Mr. Khim, affidavits of

Arbitrator Ling, and the Post Arbitration

Brief written by Mr. Khim, to show that

there was no such conspiracy and that

defendant HGEA fairly and zealously

represented the plaintiff’s interest in

arbitration. The court is satisfied that

the defendant as moving party has met its

burden of identifying portions of

materials that identify for the court "the

absence of a material and triable issue of

fact." See T.W. Elec., 809 F.2d at 630;

Richards, 810 F.2d 902.

This finding compels the plaintiff to

present significant probative evidence

tending to support his legal theory of

conspiracy under section 1985. Commodity

Futures, 611 F.2d at 282. That the

plaintiff alleges a conspiracy is

insufficient to defeat an adequately

supported motion for summary judgment.

Hewitt, 596 F. Supp. at 305 (citing Fonda,

707 F.2d at 438). The plaintiff must

point ot some facts probative of a

conspiracy between the defendants to

Survive summary judgment. ig. {citing

Ward v. EEOC, 719 311, 314 (9th Cir.

1983), cert. denied, 466 U.S. 953 [1984]).

The plaintiff has not presented the court

with any direct evidence of a conspiracy

between defendant HGEA and defendant

County. Nor has the plaintiff presented

the court with circumstantial evidence

from which a fair-minded jury could draw

inferences to find his favor. Instead,

the plaintiff attempts to base his

conspiracy allegations on essentially post

hoc ergo propter hoc rationalization.

Similarly, the plaintiff has not

presented any direct evidence to support

the Griffin “act in furtherance of the

object of the conspiracy,” Griffin, 403

U.S. at 103, requirement of section 1985.

Nor has the plaintiff presented any

circumstantial evidence from which a fair-

minded jury could draw inferences to find

in his favor regarding an act in

furtherance cof the alleged conspiracy.

In sum, under the Celotex and Liberty

Lobby standards, as interpreted bv T.W.

Elec. and Eisenberg, respectively, the

court does not find the plaintiff’s

’ '

‘evidence' to survive the defendant’s

motion for summary judgment regarding

"episode" twelve. The court concludes

that the plaintiff has not presented any

facts probative of a conspiracy between

defendant HGEA and defendant County; i.e.,

that the defendants by some concerted

action intended to harm the plaintiff

unlawfully, which in fact did harm the

plaintiff. See Doleman v. Meiji Mut. Life

Ins. Co., 727 F.2d 1480, 1482 n.3 (9th

Cir. 1984) (definition of civil

conspiracy). The court therefore finds

that no question exists whether

‘reasonable minds could differ as to the

import of the evidenc,”"” Eisenberg, 815

F.2d at 1289; or whether "a fair-minded

jury could return ae verdict for the

plaintiff on the evidence presented.”

Liberty Lobby, 106 a. + ae at 2513.

Accordingly, this court grants the

defendants’ motion for summary judgment

regarding the plaintiff’s section 1985(3)

claim against defendant HGEA with respect

to the arbitration, re "episode"

twelve. Cf. Ashelman v. Pope, 769 F.2d

1360, 1362 (9th Cir. 1985) (if plaintiff

cannot uncover through discovery any

evidence to detail and support his

conspiracy theory, then a grant of summary

judgment is appropriate).

Iil. Conclusion

The court has determined that

"episode" eleven cannot support the

plaintiff’s sections 1983 and 1985 causes

of action, following a res

jJudicata/collateral estoppel analysis

under Mack. The court has also determined

that “episodes” one through ten cannot

support the plaintiff’s causes of action,

following a causation analysis under

Arnold. Finally the court determines that

"episode" twelve cannot support the

plaintiff’s section 1985 cause of action,

following a causation analysis under

Arnold, a failure of supporting section

1983 analysis under Cassettari, and/or a

summary judgment analysis under T.W. Elec.

and Eisenberg,

Accordingly, the defendants’ motions

for summary judgment against the

plaintiff’s sections 1983 and 1985 claims

against both the County and HGEA

defendants are GRANTED. There being no

further claims in the complaint for trial,

the plaintiff’s case based on any of the

twelve “episodes” is DISMISSED.

The court does not address the

defendant’s statute of limitations

arguments, of which a recent Ninth Circuit

decision easily disposes. Usher v. City

of Los Angeles, No. 86-6328, --- F.2d ---

(9th Cir. Sept. 21, 1987) (WESTLAW, CTA9

file). The court also does not find ‘any

merit in defendant’s abstention arguments

and does not discuss them.

IT IS SO ORDERED

DATED: Honolulu, Hi, OCT. 9, 1987.

“UNITED STATES DISTRICT JUDGE

APPENDIX G

IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT

& STATE OF HAWATI

~-=9000000-~-~<

DEPARTMENT OF PUBLIC) SPECIAL PROCEEDING

WORKS, COUNTY OF NUMBER 87-0017

KAUAI,

Plaintiffs,

-versus-

HAWAII GOVERNMENT

EMPLOYEES’

ASSOCIATION, AFSCME

152,

Defendants.

eee eee eee ee ee

TRANSCRIPT OF PROCEEDINGS

held before The Honorable Kei Hirano,

Judge, presiding on Thursday, October 15,

1987.

REPORTED BY:

FARINCEE BOYKIN, C.S.R. NO. 106

OFFICIAL COURT REPORTER

. STATE OF HAWAII, COUNTY OF KAUAI

APPENDIX G

Statement by Mr. Smith

Statement by Mr. Perry

Statement by Mr. Khim ..........

Further Statement by Mr. Smith

Peeameonm BF the Court ....cccces

---o0000---

2 2.4 82 8-3 9

APPEARANCES OF COUNSEL:

COUNTY ATTORNEY

COUNTY OF KAUAI, STATE OF HAWAII

BY: WARREN C.R. PERRY, ESQ.

Second Deputy County Attorney

4396 Rice Street

Lihue, Kauai, Hawaii 96766

CHARLES K.Y. KHIM, ESQ.

Attorney for Defendant,

Hawaii Government Employees

Association

888 Mililani Street

Honolulu, Hawaii 96813

’

ROBERT A. SMITH, ESQ.

Attorney for Grievant,

Ronald Caldeira

Century Square, Suite 1908

1188 Bishop Street

Honolulu, Hawaii 96813

---00000---

TELEPHONIC CONFERENCE CALL

€ THE COURT: Hello.

THE OPERATOR: Hello. Judge Hirano?

THE COURT: Yes.

THE OPERATOR: Do you have Warren

Perry with you?

THE COURT: Yes. Yes, he is. He

just walked into my Chambers.

THE OPERATOR: Okay. Let me take a

short role call.

Robert. Smith?

MR. SMITH: Yes; speaking.

THE OPERATOR: Charles Khim.

MR. KHIM: I’m here.

THE OPERATOR: And, Judge Hirano?

THE COURT: Here.

THE OPERATOR: All right; go ahead on

your call.

THE COURT: Mr. Smith?

MR. SMITH: Yes. Hello.

THE COURT: Hello, Mr. Smith; you’re

on.

(No response. )

THE COURT: Can you hear me?

MR. SMITH: Yes, I hear you.

THE COURT: Okay.

MR. SMITH: Is Mr. Perry on?

THE COURT: Oh, yes; he’s’ seated

right here.

MR. SMITH: Okay.

THE COURT: Proceed.

MR. SMITH: As far as-~ mine, I

don’t have anything to add to the Motion

to Reconsider or the Motion to Vacate

themselves, but I would want to inquire

whether the Court received my Supplemental

Memorandum that I sent off in the mail

last Tuesday.

THE COURT: Tuesday? Let me see. :

did not receive it but I just got a copy

handed to me.

MR. SMITH: Okay. Well, let me

briefly comment then about that, Judge.

THE COURT: Okay.

MR. SMITH: My purpose

as to show Your Honor

the

in f

effec

onor’s Decision on September

Monday; tnat was Septem

tCime rT nine : ~lock in

Perr. und Mr Khim file

ecision with Judge For

onnect n with i Mot

Judgment that tney nad

cnen rad ‘ argued. ina

they made was on the

the Federal Statute.

ldge Fong wa

ec1: 10Nn, ana would n

Arbitratior I any f

speak a little

Pardon

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Memorandum with

»9f Judge Fong’s Decision,

you what he said

your Decision.

In that connect

point out about

you

to my

and did

10Nn,

aff

and

three things,

Supplement

davit a

have befo

an effect

which I hi

not said previously, in addition to my

€ motion.

The first is that the effect of your

Decision, about two weeks ago, is to cause

a lawsuit which has been pending in

Federal Court for over two years to be

dismissed now without trial.

A second thing I’d like to point out

is that the basis for your Decision is

that the HPERB administrative proceeding

which Mr. Caldeira filed over two years

ago kad tolling the one year period of

limitation and I have included in some

caes in my newest affidavit to show Your

Honor that nothing has happened in the

HPERB case at all. That is to to say,

after Motions to Dismiss were filed HPERB

had a hearing and Mr. Caldeira attended

pro se.

HPERB took those motions under

advisement, has never ruled, there has

never been a decision and, of course,

there’s been no trial in the HPERB

Complaint. The case has simply been

dormant until just very recently, a series

of motions filed in that case as well.

I make this point to show that it

seems to- me to say that the HPERB

proceeding is a reason for tolling the one

year period, which the County would

otherwise have to comply with, is giving

far too much significance to a proceeding

that has never gone anywhere.

The third point is that to use or

advance a tolling a litigant usually comes

to court showing some equity in its

position. This is where the County is.

And it says that -- use a statute -- we’re

moving to confirm under the statute, the

one year period. We waited two years to

file a Motion for Confirmation. But, it’s

okay because we have a right to toll that

one year period.

Well, usually a litigant who says

that shows that he ifs entitled to take

advantage, say, of the discovery rule

where he didn’t know he was going to sue,

didn’t know he had a cause of action.

Like the sponge the doctor leaves in a

patient’s stomach. He doesn’t know about

it, the period of runs.

Four, the litigant can’t show he has

some excuse why he didn’t comply with the

Statute of Limitation, or the litigant

shows that he was prevented from filing on

time by some sort of disability like, for

instance, being a minor, or being out of

state, or being absent.

Well, here the County has not offered

any excuse at all for not complying with

the one year period and, of course, it was

not legally prevented from moving for

confirmation right away. It could have if

it wanted to. Instead, it doesn’t do

that. There is the HPERB proceeding,

there is Mr. Caldeira’s Federal Court

lawsuit. Two years go by; the parties are

engaged in serious litigation in the

Federal Court case. Much discovery is

done. We get down to a month before trial

and suddenly there’s a Motion for

Confirmation.

I don’t think there’s any equity in

the County’s position and I hope that Your

Honor will reconsider that in connection

With my motion.

THE COURT: All right. Mr. Perry,

will you go first?

MR. PERRY: Yes.

THE COURT: Speak loudly so they can

hear.

MR. PERRY: The --

MR. SMITH: Hello? I cannot hear

Warren.

MR. PERRY: Okay. I’ll try right

over here.

THE COURT: Can you hear him now?

——e—————SS —~——————t

MR. SMITH: Yes.

€ MR. PERRY: Mr. Smith 1s arguing,

basically, to the fact of the underlying

justification for the confirming of the

Arbitration award, and what he’s arguing

as to Judge Fong’s actions because of the

confirmation, it basically ~~ all he’s

saying is that Judge Fong followed the law

in ruling on the effect of the

confirmation of the Arbitration award.

As far as the tolling of the Statute

of Limitations, I don’t have any problem,

and as far as equities 8°» his argument

that the County of Kaual should have

equities involved in that, l think I’ll

use Mr. Smith’s own argument that he

submitted in his Memo in Opposition that

the whole purpose of the Arbitration

proceeding was to have finality- And what

with Mr. Caldeira’s seeking relief from

the Arbitration award at HPERB ana in the

Federal District Court, we are not getting

that finality that should have been gotten

& because of the Arbitration hearing.

The tolling of the Statute of

Limitations, I think, is justified based

on arguments which I and the attorney for

the Union submitted, and I leave it up to

MR. SMITH: I’m sorry; you’re fading

away.

MR. PERRY: And I leave it to the

Judge after that.

THE COURT: Mr. Khim?

MR. KHIM: Thank you, Your Honor.

Can everyone hear me okay?

THE COURT: Yes.

MR. SMITH: Yes, Your Honor, I can.

MR. KHIM: Okay. Basically, I would

just like to briefly go over my argument

that I submitted in my Memorandum in

Opposition and Motion to Vacate. I trust

the Court ahs received a copy of that.

—— <==

THE COURT: Yes, I have received your

& voluminous submittal.

MR. KHIM: Thank you, Your Honor.

Most of that voluminous material

constitutes the transcript of the

Arbitration proceeding, and I put the

transcript in along with the affidavit of

Arbitrator Ling to show the Court that

there was‘ no fraud, no corruption, and

that the arbitration award was not gotten

by undue means. It was a full and fair

hearing. I think Mr. Perry can attest to

the fact that he and I vigorously argued

the case and it was a very, very hard

fought trial, both sides fought their best

and, unfortunately, I lost. But, that’s

the way the Arbitrator ruled.

And, Arbitration was enacted by the

parties to get around the court

proceedings, and you get one crack and

that’s it. If you win, you win; if you

lose, you lose. And everyone is bound by

the decision of the Arbitrator for better

or for worse, right or wrong.

I think that the Hawaii State Supreme

Court has said in numerous cases, the Mars

Constructors (phonetics) case, the one

that really comes to mind, Your Honor,

that the -- Supreme Court said that the

arbitrator can be totally wrong on the law

in the way he construe the facts, but

that’s just -- that’s just the way it is.

And since the parties put their faith into

the hands of the Arbitrator, they have tec

take his Decision, even if the Arbitrator

is totally off base. The only time

they’re entitled to vacate the award is if

they had shown one of the four narrow

grounds. And in this case Mr. Smith is

trying to say that there is corruption,

fraud, undue means.

And I think, as a said before, the

transcript shows this thing was a long

hard-fought case. It wasn’t a half day

Job where one side took a dive where, you

know, through corrupt means, in essence,

gave up unfairly. That’s not what

happened in this case. This case was very

strenuously litigated, in good faith, in

complete henesty by both sides.

So, I think, the evidence I

submitted, coupled with the facts that Mr.

Smith has not pointed to any specific

document in his voluminous submission to

this Court, with his Motion to Vacate, he

doesn’t point out which of those documents

show fraud, corruption, or undue means.

I think those two factors alone shows

tha the Motion to Vacate Arbitrator’s

Award should not be granted because the

Arbitration was fair, was honest, was not

corrupt, was not fraudulent, and undue

means were not used to get the

Arbitrator’s award.

And, in addition, I ask a technical

argument on why should the issues that

it’s untimely -- there’s 10 days under the

Statute. Those 10 days were not tolled

because Mr. Caldeira filed his HPERB

Complaint four months after he got his

decision, not less than 10 days, so the

tolling, while it works for Mr. Perry, he

has a one year statute of limitation,

doesn’t work for Mr. Caldeira and Mr.

Smith because they only have a 10 day

Statute of Limitation.

And, also, I believe the Motion to

Vacate is improper because it’s really a

Rule 60 motion, and in this case you

cannot claim mistake, inadvertence,

excusable neglect, or newly discovered

evidence, et cetera. He had this stuff

long before. And none of those grounds

for Rule 60 exists.

A Motion for Reconsideration is

exactly that, Your Honor; reconsider what

has already been submitted to the Court.

The record, as it stands in this case, he

put in a whole new Motion to Vacate, and,

I think as Your Honor would characterize,

voluminous material, that he didn’t put in

when he first opposed the Motion to

Confirm, Your Honor. That would say that

if newly found evidence -- he’s

introducing new evidence, therefore, he

doesn’t have an excuse to bring it in to

Rule 60.

If I might also briefly address Mr.

Smith’s arguments he made orally, now,

Your Honor, the fact that Your Honor’'s

Decision has an effect on a Federal Court

case is irrelevant. If Mr. Perry is

entitled to a confirmation of the award by

law he should get it. If he is not

entitled to it he shouldn’t get it. I

don’t think the Court should look to the

ramifications of granting awards in

determining whether or not Mr. Perry's

motion is meritorious. Even the Motion to

Confirm is meritorious or it’s not; it

stands on its own. And, if it’s

meritorious, so be it, and, you know, Mr.

Perry and I are free to use it in whatever

means we wish. For, after all, if it’s

correct under law, it’s correct.

And the factor that -- Mr. Smith

brings about the fact that nothing

happened at HPERB after the Complaint was

filed. I think, as Your Honor is well-

aware, litigation often times takes a long

time, takes a long time, and cases can go

on for years. And the fact that HPERB did

nothing, according to Mr. -=- regarding

this Complaint, is irrelevant.

But, moreover, HPERB did do lots of

things. And Mr. Perry can attest to this.

Both he and I and Mr. Caldeira were called

in numerous times by HPERB, status

conference, settlement conference, sit

down and work things out. The Court was

trying to, in that period -- Excuse me,

Your Honor. The HPERB was trying to, in

that period of time, get the parties

together to try to settle. So, far from

nothing happening in the record, that may

be because there’s no motions or hearings

or anything, but HPERB did try. They

didn’t just sit on their hands. They

tried to get the parties together. They

called status conferences, et cetera. So,

there was some action on that part.

But, as I stated earlier even if

there was no action on HPERB’s part, you

know, so long as the HPERB Complaint was

filed before that, and, more over Mr.

Caldeira did nothing to further it along.

He didn’t push HPERB for a date, he didn’t

try to keep the process going.

THE COURT: Okay, Mr. Khim, I’ve

heard enough already.

MR. KHIM: Thank you, Your Honor.

THE COURT: Mr. Smith, do you want to

add anything in closing?

ae)

MR. SMITH: I might, Judge, but it

depends on one question I have to ask the

Court, and, that is, whether the Court is

going to get into the merits of Mr.

Caldeira’s claims as I submitted the, or

whether instead the Court takes the view

that they are cut off by the 10 day

period.

THE COURT: Well, in looking at your

submittals and looking at the transcript

of the arbitration proceedings, first of

all, I do agree with Mr. Khim. It seems

to me that they go around between Mr. Khim

and Mr. Perry with Arbitrator Ling. The

Arbitrator, I think, has tremendous

patience, more than I would have had ina

regular hearing. It seems to be hotly

contested. But, in any case, Mr. Smith,

when looking at all of the submittals,

your motion is going to be denied, so,

Counsel, prepare the appropriate Order.

ake.

MR. KHIM: I’m sorry, Your Honor; who

did you request to prepare the Order.

THE COURT: Either you or Mr. Perry.

Mr. Perry, I guess.

MR. KHIM: OkKay.

THE COURT: He said he’ll do it.

Okay.

MR. PERRY: Thank you.

(The telephonic conference call was

concluded. )

STATE OF HAWAII )

COUNTY OF KAUAI )

I, FARINCEE BOYKIN, the Official

Court Reporter in and for the State of

Hawaii, County of Kauai, do hereby certify

that the foregoing pages, 1 through 16,

inclusive, comprise a full and correct

transcript of the proceedings had in

connection with the above-entitled cause.

DATED: Saturday, October 17, 1987,

at Lihue, Kauai, Hawaii.

FARINCEE BOYKIN, C.S.R. NO. 106

OFFICIAL COURT REPORTER

STATE OF HAWAII, COUNTY OF KAUAI

EXHIBIT H

T500A

Of Counsel:

Law Offices of

ROBERT A. SMITH 1561-0

ATTORNEY AT LAW

A LAW CORPORATION

Suite 1908, Century Square

1188 Bishop Street

Honolulu, Hawaii 96813

Telephone: (808) 323-6411

Attorney for Grievant

IN THE CIRCUIT COURT OF THE FIFTH CIRCUIT

STATE OF HAWAII

RONALD CALDEIRA, S.P. NO. 87-0017

)

Grievant, ) ORDER DENYING

) MOTION FOR

vs. ) RECONSIDERATION

) AND MOTION TO

COUNTY OF KAUAI, ) VACATE

ets Aka ) ARBITRATION AWARD

) CERTIFICATE OF

Defendants. ) SERVICE

)

ORDER DENYING MOTION FOR RECONSIDERATION

AND MOTION TO VACATE ARBITRATION AWARD

This Court having reviewed Ronald

Caldeira’s motion for reconsideration and

motion to vacate arbitration award, and

having heard arguments on October 15,

1987, before the Honorable Kei Hirano,

EXHIBIT H

@ With all parties having been represented

by counsel,

IT IS HEREBY ORDERED, ADJUDGED AND

DECREED that said motions are denied.

DATED: Lihue, Kauai, Hi, Dec 15 1987.

JUDGE OF THE ABOVE-ENTITLED COURT

EXHIBIT I

UNITED STATES DISTRICT COURT

DISTRICT OF HAWAII

JUDGMENT IN A

CIVIL CASE

RONALD CALDEIRA

Vv.

COUNTY OF KAUAI,

)

) CASE NO.: 85-0869

)

et al. )

)

a Jury Verdict. This action came

before the Court for a trial by jury.

The issues have been tried and the

jury has rendered its verdict.

Decision by Court. This action came

to #mbeter hearing before the Court.

The issues have been #rtredor heard

and a decision has been rendered.

IT IS ORDERED AND ADJUDGED

that summary judgment is entered in favor

of defendants and against plaintiff as to

plaintiff’s sections 1983 and 1985 claims

against County and HGEA defendants.

Plaintiff’s case based on any of the

twelve "episodes" is DISMISSED.

ec: all parties of record

October 13, 1987

Date Clerk

(By) Deputy Clerk

EXHIBIT I

EXHIBIT J

IN THE UNITED STATES DISTRICT COURT

& FOR THE DISTRICT OF HAWAII

RONALD CALDEIRA, CIVIL NO. 85-0869

Plaintiff,

VS.

COUNTY OF KAUAI,

et @1.%

Defendants.

eee eee eee el

ORDER DENYING PLAINTIFF’S

MOTION FOR RECONSIDERATION

I, Introduction

Plaintiff Caldeira moves the Court to

reconsider its Order Granting Motion for

Summary Judgment And To Dismiss, issued

October 9, 1987. For the reasons set out

below, the Court DENIES this motion.

Plaintiff Caldeira raises five

general arguments to move the Court to

reconsider its Order:

(1) The state court judgment is not

Ge entitled to full faith and

~ credit under 28 U.S.C. section

EXHIBIT J

The

(2)

(3)

(4)

1738.

State law principles of res

judicata and collateral estoppel

do not bar plaintiff’s -civil

rights claims.

The court erred in its causation

analysis concerning the alleged

"episodes" of conspiracy and

wrongdoing by defendants.

The court erred in its summary

judgment analysis regarding

plaintiff’s circumstantial

evidence of a conspiracy by

defendants.

The court erred in granting

summary judgment and dismissal

because even if the defendant

HGEA is not a co-conspirator it

is a joint tortfeasor.

Court addresses each of these

arguments in turn.

The

ie e Discussion

State Court Judgment and Full

Faith and Credit

The Court stated in its Order:

It is well settled that 28

U.S.C. section 1738 requires

federal courts to give an

administrative adjudication

reviewed by a state court the

same full faith and credit the

adjudication would enjoy in the

state’s own courts. Mack v.

a r Distrib. ae. ,

796 Ftd i2Td,: i262 (3th Cir.

1986) (citing Marrese Vv.

American Academyof Orthopaedic

Surgeons, 470 U.S. 373 (1985);

McDonald v. City of West Branch,

466 U.S. 284 (1984)...

Under the rule set forth in

Mack, then, the court must give

the state court affirmation of

the arbitration decision full

faith and credit under 28 U.S.C.

section 1738. Specifically, the

court must accept as given that

the plaintiff was discharged for

just and proper cause, and that

the plaintiff’s alleged

constitutional deprivation or

injury, being the discharge, was

self-inflicted by his

insubordination in the face of

a valid work order by defendant

County. Accordingly, "episode"

eleven cannot substantiate the

plaintiff’s section 1983 claims

against the defendants.

Order at 4-5.

Nowhere in the plaintiff’s memorandum

does he address the holding of the Ninth

Circuit in Mack. Instead, he digresses in

a lengthy discussion on his interpretation

of how the full faith and credit clause

should be applied in this case. The Ninth

Circuit, however, has already set out in

Mack what a federal district court must do

when it encounters a final state court

juclgment that the state’s courts would

give preclisive effect: it must give the

Judgment full faith and credit under 28

U.S.C. section 1738.

Plaintiff Caldeira can pursue a

reversal of the state court judgment in

the state courts. The Court notes that

Judge Hirano, author of the state court

Judgment confirming the arbitrator’s award

finding defendant County discharged

B. The Court’s Causation Analysis

Plaintiff Caldeira attacks the

Court’s causation analysis on_ several

grounds. To the extent the Court was

unclear, it repeats the basis of its legal

reasoning here.

Causation is an essential

element of every section 1983

and section 1985 cause of

action. Arnold v. IBM, 637 F.2d

i390, 1355 (9th Cir. 1981). In

a section 1983 action, the

plaintiff must. show the

defendant caused a deprivation

of his constitutional rights.

Id. In a section 1985 action,

the plaintiff must show that

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acts done in furtherance of a

conspiracy by defendant caused

the plaintiff’s injury. id.

Furthermore, the causation

requirement of sections 1983 and

1985 is not merely cause in

fact, but proximate cause or

legal causation. Id,

Order at 5.

The Court stated in its Order that

the discharge was caused by the

insubordination of the plaintiff in the

face of a valid work order, as found by

the arbitrator and confirmed by the state

court. The Court was bound to accept this

causal connection under Mack. To the

extent the Court’s tangential superceding

cause analysis was misleading, it

restricts attention to its central and

salient conclusion that the alleged

wrongdoing of the defendants’ was neither

the cause in fact nor the proximate cause

of plaintiff Caldeira’s harm. See Order

at 6.

D. Court’s Treatment of Plaintiff’s

Circumstantial Evidence

Plaintiff Caldeira seizes on the

Court’s use of the phrase post hoc ergo

propter hoc as a means to question its

reasoning regarding its evaluation of the

plaintiff’s circumstantial evidence of a

conspiracy between defendants HGEA and

County to deprive him of his

constitutional rights. To the extent that

the Court was unclear, it restates its

position regarding the plaintiff’s

circumstantial evidence.

Plaintiff Caldeira stats that "this

Court erred in ruling that Caldeira’s

circumstantial evidence of conspiracy is

insufficient because it proceeds from post

hoc rationalization." See Memorandum at

3. Plaintiff Caldeira misunderstands and

mischaracterizes the Court’s reasoning and

finding. The Court found that under the

standards for summary judgment as

enunciated by the Ninth Circuit, see,

e.g., Commodity Futures Trading Comm’n v.

Savage, 611 F.2d 270, 282 (9th Cir. 1979),

T.W. Elec. Serv., Inc. v. Pacific Elec.

Contractors Ass’n, 809 F.2d 626, 630 (9th

Cir. 1987) (citing Celotex Corp. vv.

Catrett, 106 S. Ct. 2548, 2553 [1986]),

and Eisenberg v. Insurance Co. of North

America, 815 F.2d 1285, 1289 (9th Cir.

1987) (citing Anderson v. Liberty Lobby,

Inc., 106 S. Ct. 2505, 2512 [1986]), that

plaintiff had failed to meet its burden to

defeat the defendant’s motion for summary

judgment.

The secondary reference to post hoc

ergo propter hoc was in the manner of

characterization and was not part of its

reasoning or conclusion. What the Court

meant by this reference was simply that

the plaintiff apparently wished the Court

to draw the inference, unsupported byany

direct evidence or any circumstantial

evidence that would convince a fair-minded

jury to find in his favor, that because he

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was discharged by the County it therefore

was because of a conspiracy on the part of

the defendants. Such is a fair and

general usage of the phrase post hoc ergo

propter hoc, plaintiff’s citations to

several works on argument’ and logic

notwithstanding.

Furthermore, the Court adds that

Ninth Circuit has stated in a recent

opinion discussing the standards for

summary judgment: "{I]f the the factual

context makes the non-moving party’s claim

implausible, the party must come forward

with more persuasive evidence than would

otherwise be necessary to show there is a

genuine issue for trial.” California

Arch. Bldg. Prod. v. Franciscan Ceramics,

818 F.2d 1466, 1468 (9th Cir. 1987)

(citing Matsushita Elec. Indus. Co. Zenith

Radio Corp., 475 U.S. 574 [1986]). It

added that "no longer can it be argued

that any disagreement about a material

issue of fact precludes the use of summary

judgment." Id. Given the factual record

of this case, as represented in the record

and oral argument, the Court finds that

plaintiff Caldeira’s claims of conspiracy

are implausible. Finding that the

plaintiff failed to meet the ordinary

"significant probative evidence" standard

to defeat summary judgment, see Commodity

Futures, 611 F.2d at 282, a fortiori the

Court cannot see how he could defeat the

motion for summary judgment under the

higher standard specified in Franciscan

Ceramics.

Furthermore, the court

determined that "episode" ‘welve cannot

support the plaintiff’s section 1985 cause

of action, following a causation analysis

under Arnold v. IBM, 637 F.2d 1350, 1355

(9th Cir. 1981), a failure of supporting

section 1983 analysis under Cassettari v.

Nevada County, Cal., 824 F.2d 735, 739

(9th Cir. 1987) (citing Dooley v. Reiss,

736 F.2d: 1392, 1395. (9th. Cir. }]< cert.

denied, 469 U.S. 1038 [1984]), and/or a

summary judgment analysis under T.W. Elec.

and Eisenberg. Plaintiff Caldeira

presents no evidence or argument to

convince the Court that it should

reconsider its analysis under Cassettari

or Arnold, in addition to its analysis

under T.W. Elec. and Eisenberg. If the

Court is correct in its analysis on ay of

these, and it believes it is correct in

all of them, this would be sufficient to

grant summary judgment or dismissal

against plaintiff. See Griffin v.

Breckenridge, 403 U.S. 88, 102-03 (1971).

E. Defendant County as Joint Tortfeasor

Finally, plaintiff argues that even

if defendant HGEA was not a co-

conspirator, it was a joint tortfeasor and

therefore the Court should not have

dismissed the suit. Plaintiff in raising

this argument fails to realize that the

Same causation analysis that prevented the

plaintiff’s sections 1983 and 1985 claims

must defeat his common law tort claims.

Sections 1983 and 1985 incorporate the

Same causation principles. See, e.g.,

Martinez v. California, 444 U.S. 277,285

(1980); Carey v. Piphus, 435 U.S. 247,

av?’=oe (1978); Arnold, 637 F.2d at 1355.

Accordingly, this argument does not

provide the Court with a basis to

reconsider its Order.

Vor Conclusion

There being no evidence or argument

in the plaintiff’s present motion to

convince the Court to reconsider its Order

Granting Motion For Summary Judgment And

To Dismiss, the plaintiff’s Motion for

Reconsideration is DENIED.

This Order does not supplement the

previous Order except to the extent needed

to explain any ambiguities therein.

IT IS SO ORDERED.

DATED: Honolulu, HI, _Oct. 26, 1987

UNITED STATES DISTRICT JUDGE

CIVIL NO. 85-0869

CALDEIRA v. COUNTY OF KAUAI

& ORDER DENYING PLAINTIFF’S MOTION’ FOR

RECONSIDERATION

EXHIBIT K

STATE OF HAWAII

HAWAII LABOR RELATIONS BOARD

In the Matter of CASE NOS.: CE-03-97

CU-03-50

RONALD R. CALDEIRA,

ORDER NO. 714

Complainant,

ORDER GRANTING

and MOTION FOR SUMMARY

TONY T. KUNIMURA,

Mayor, County of

of Kauai, and HAWAII

GOVERNMENT -EMPLOYEES

ASSOCIATION, AFSCME

LOCAL 152, AFL-CIO,

)

) JUDGMENT

)

Respondents. )

)

ORDER GRANTING MOTION FOR SUMMARY JUDGMENT

On April

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