Honolulu is asking for more legal fees to defend against a 2023 federal civil rights lawsuit alleging three Honolulu Liquor Commission investigators subjected another investigator to discrimination, harassment and a hostile work environment based on his sexual orientation and race after starting his job with the city in 2022.
The request comes as a related federal trial is now underway against the city regarding a Chinatown nightclub and an LGBTQ+ guide to the islands who accuse the city Liquor Commission and some of its investigators of anti-gay discrimination in a case filed two years prior.
Both cases are intertwined.
However, the city’s request for more funds to pay legal costs pertains to HLC investigator Jhumar Ray Waite.
Filed in the U.S. District Court for the District of Hawaii, Waite’s complaint names defendants Jacob Fears, Glen Nishigata and Catherine Fontaine and alleges the trio, in their official and individual capacities, violated portions of the Civil Rights Act of 1964 as well as state laws related to
discrimination against Waite.
Waite — who has worked as a Honolulu liquor investigator since August 2022 — is gay and Filipino, the complaint states.
To fight this lawsuit, the city requests the Honolulu City Council adopt Resolution 249, which seeks an additional $115,000 be appropriated to pay law firm Kobayashi Sugita &Goda LLC, or KSG, to defend the city against the Waite civil lawsuit.
The Council is expected to review this resolution for adoption at its 10 a.m. meeting Wednesday at Kapolei Hale.
According to the resolution, in 2023 the Council approved the retention of KSG “as special corporation counsel” to represent HLC and the three investigators in this matter.
Under the prior legislation, the Council paid the law firm $50,000 for legal fees and costs to represent the
defendants.
“KSG subsequently provided an estimated budget of $165,000 to defend the case,” Resolution 249 states. “To date, KSG has billed the amount of $34,627.17.”
The resolution asserts that “an increase in the amount of fees of contract is warranted, and Corporation Counsel has recommended the allotment of additional sums.”
Scott Humber, the mayor’s communications director, told the Honolulu Star-Advertiser the “city is vigorously defending against these claims and believes the evidence will demonstrate that the allegations are without merit.”
“The Waite case is currently in the discovery and motions practice phase,” he said. “The city has filed a motion for judgment on the pleadings requesting dismissal of the case.”
He added the trial is scheduled to begin April 14.
Humber said “additional funds are required to continue the city’s defense, including ongoing discovery,
expert witnesses, motions practice, pre-trial preparation and trial.”
James D. DiPasquale, Waite’s lawyer, said that case continues in part because no settlement had been reached between his client and the city.
“They’ve offered pennies as far as we’re concerned, and they just don’t really take it seriously,” DiPasquale told the Star-Advertiser. “And we don’t agree with it. We engaged in settlement discussions with the court, and (the city) just didn’t make an offer that was even remotely acceptable. So I guess it’s no surprise that they’re going back to request more money to continue their
defense.”
He added that Waite’s complaint details a pattern of behavior that Waite claims he endured from the onset of his employment as a “Liquor Investigator 1” with the city Liquor Commission.
Waite alleges he was subjected to derogatory comments, taunting and alienation by his supervisors —
investigators Fears and Nishigata.
The lawsuit also accuses Fears of making inappropriate comments about the LGBTQ+ community, mocking Waite’s Filipino accent and engaging in discriminatory behavior.
Moreover, Nishigata is alleged to have refused communication and proper training with Waite, as well as shouting offensive comments at transgender sex workers, the lawsuit states.
When he raised concerns and filed a complaint regarding the discriminatory treatment he experienced, Waite was placed on administrative leave pending investigation, the lawsuit claims.
It adds that Waite was later returned to work but placed on administrative leave again, following an incident he believes was orchestrated to retaliate against him for his
complaints.
Waite’s participation in protected activity — such as filing a charge of discrimination with the Equal Employment Opportunity Commission — resulted in retaliation by the defendants, the complaint states.
The complaint seeks compensatory and punitive damages for emotional distress, mental anguish and damage to Waite’s professional reputation, as well as injunctive relief to prevent future discrimination.
Waite’s lawsuit is related to a prior federal complaint lawyer DiPasquale brought in 2021 on behalf of Scarlet Honolulu Inc. and Gay Island Guide LLC.
That civil complaint alleges that HLC investigators, administrators and others allegedly engaged in an “ongoing campaign of unlawful, unconstitutional, and highly discriminatory anti-gay harassment of Scarlet, Gay Island Guide, and generally, the Honolulu LGBTQ+ community” that went on for more than six years, according to the complaint, Scarlet’s owner Robbie Baldwin and attorney DiPasquale.
According to DiPasquale, the Scarlet case is now being heard in federal court.
“We’re about halfway through the trial at this point,” he said, adding the case might wrap later this week. “It’s a difficult case because when people hold bias they don’t typically hold signs or wear signs that say ‘I’m homophobic’ or ‘I’m racist,’ so proving these types of cases are extremely difficult. They’re based on data and patterns and things like that.”
He noted that Waite was “presented as a witness” in the Scarlet case.
“And then we’ve gone through the Liquor Commission witnesses — the investigators — and I think we’ve painted a pretty good image of a broken agency,” he said. “And now it’s time to really start providing evidence from our side.”
But not everyone wanted this case to advance.
After the city sought a motion to dismiss the Scarlet case, Chief U.S. District Judge Derrick K. Watson on Aug. 3, 2023, issued a 38-page order, allowing the case to proceed to a bench trial.
In preparing for trial in the Scarlet case, DiPasquale previously told the Star-Advertiser his clients seek
$2.5 million in damages plus an additional amount, no less than another $2.5 million, in punitive damages.
Still, the ruling in the Scarlet case dismissed all claims against two Liquor Commission investigators — Fears and Fontaine — in their official capacities, he added.
After Watson’s 2023 decision, the city’s retained
attorney, Lex R. Smith,
previously told the Star-Advertiser the city was pleased with a part of the ruling that “rejected the claims against the individual city employees” among other aspects that he believed benefited the city’s side.
“We actually think we have a pretty good chance at prevailing on everything else at trial,” Smith said.
———
Star-Advertiser staff writer Peter Boylan contributed to this report.
