Judge tosses discrimination claims against former prosecutor, deputy

A federal judge has dismissed claims against former Maui County Prosecuting Attorney Benjamin Acob and Deputy Prosecutor Timothy Tate in a discrimination lawsuit brought by a former deputy prosecutor.

In a 61-page order filed Feb. 21 in U.S. District Court in Honolulu, Judge Leslie Kobayashi said there was evidence of a “personal feud” between Tate and former Deputy Prosecutor Marie Kosegarten but not the discrimination alleged in her lawsuit.

Kobayashi also said “there is no evidence in the record that Defendant Tate was involved” in Kosegarten’s firing from the department in June 2009, when Acob was head of the county Department of Prosecuting Attorney.

Acob and Tate were sued on the theory that they aided and abetted discriminatory conduct.

Because Kosegarten’s complaint alleged that Tate “incited, compelled, or coerced defendant Acob’s alleged discriminatory actions,” the judge’s order said, “her claim against defendant Acob also fails.”

With the court ordering that claims against Acob and Tate be dismissed, they are no longer defendants in the lawsuit filed in 2010 against Maui County.

The court ruling also dismissed claims of defamation against Tate and discrimination based upon sexual orientation after the claims were withdrawn by the plaintiff. Claims of sexual harassment or a hostile work environment, discrimination based upon sex orientation, violation of the Hawaii Whistleblowers’ Protection Act and retaliation based upon the filing of Equal Employment Opportunity Commission charges also were dismissed by the court.

The only two claims remaining against Maui County are for retaliation and discrimination on the basis of gender.

Kosegarten, who is now in private practice on Maui, had been employed at the county prosecutor’s office for about 15 years. She was District Court supervisor for the office when she was fired.

In its filings, the county maintains there was a legitimate, nondiscriminatory reason Kosegarten was fired – insubordination in a matter involving a former deputy prosecutor who had been supervised by Kosegarten.

In the retaliation claim, Kosegarten alleges she was fired for opposing discriminatory conduct relating to the deputy, whom Acob later fired. Kosegarten believed the deputy had serious medical issues, according to the court order.

Acob had counseled Kosegarten about the need to discipline her subordinates and to prepare documentation, according to the county. The county said Kosegarten was fired for insubordination after she hadn’t made a report as Acob had directed to impose discipline on the deputy based on absences from work.

The gender discrimination claim alleges that male deputy prosecutors who were disciplined for insubordination were not fired as Kosegarten was and received lesser forms of discipline. One male deputy prosecutor was written up twice for insubordination, according to court filings, and another male deputy was demoted and suspended. A third male deputy prosecutor first was removed from a supervisory position before being later fired.

The defense’s position is that other deputy prosecutors and staff “considered defendant Acob’s management style oppressive, but none believed that his style was based on gender,” according to the court order.

One deputy “felt that defendant Acob targeted plaintiff” and another, male deputy, the order says.

Kobayashi issued the order after reviewing submissions from both sides in the case and considering them in the light most favorable to the plaintiff.

Kosegarten alleged that Tate encouraged two deputies she supervised to file EEOC complaints against her, which Tate denied.

The county said that Kosegarten’s contact with Acob and Tate “was sporadic at best in 2008 and 2009,” when she was working in a different building from Acob and Tate.

” ‘Personal animosity is not the equivalent of sex discrimination’ and a plaintiff ‘cannot turn a personal feud into a sex discrimination case,’ ” the judge’s order said.

“Even considering the evidence in the light most favorable to plaintiff and even considering the untimely incidents as relevant background, this court finds that the timely incidents of alleged gender discrimination involving defendant Tate merely establish personal animosity and a personal feud between defendant Tate and plaintiff.”

Honolulu attorney Michael Green, representing Kosegarten, said he thought it was right to name Acob and Tate as individual defendants in the case. “But I certainly respect the judge’s decision,” Green said.

If found guilty by a jury, the county would have to pay attorney fees, Green said. “And we have been working this case for years,” he said.

Deputy Corporation Counsel Thomas Kolbe declined comment because the case is on-going.

A trial on the claims is scheduled to begin June 25.