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Age discrimination complaint advances in federal court

Ex-county employee claims termination was retaliation

U.S. District Judge J. Michael Seabright has rejected Maui County’s motion to dismiss a federal discrimination complaint, saying a former employee’s claims, including that of age discrimination, were “plausible.”

However, the judge’s order said Robert Straub’s complaint “lacks certain detail,” and a footnote noted that “at oral argument (in the motion to dismiss), there was some suggestion that Straub’s replacement is only three years younger than he. This fact, however, is not in the record, and the court declines to consider it at this stage in the litigation.”

Maui County Deputy Corporation Counsel Christie Trenholme said the age difference between Straub, 71, and his replacement, 67, is significant.

“The county believes this strongly undermines any age discrimination claim,” she said.

While the court was unable to consider the age difference in the county’s motion to dismiss, it will be able to in the next stage of litigation, Trenholme said.

“This lawsuit is without merit, and the county will challenge the veracity of all plaintiff’s allegations moving forward,” she said. “We’re looking forward to winning on the facts.”

No trial date has been set for the case, and discovery — the process in which attorneys from both parties obtain evidence from each other — has begun, she said.

She noted that a motion to dismiss is a “very routine” part of the preliminary stage of a civil lawsuit, although it’s unusual for a plaintiff attorney to issue a news release announcing the denial of such a motion.

Straub’s attorney, Russell Kelm, sent email to The Maui News on Feb. 8, updating progress in the lawsuit since a story about his client’s complaint was published in mid-October. He said Straub obtained a “right to sue” letter from the Hawaii Civil Rights and the Equal Employment Opportunity commissions.

Kelm said the county’s motion to dismiss the case admits all of the allegations of the complaint “for the purposes of the motion but tests the legal sufficiency of the claims made in the lawsuit.”

Judge Seabright ordered the county to respond by next week to the plaintiff’s written discovery, which had been submitted in November, he said.

In October, Straub filed a complaint in federal court seeking $1.63 million in compensatory and other damages.

In an amended complaint, Straub, a 16-year county employee, says he was fired four days after returning to work at the county’s Business Resource Center after taking a 30-day family medical leave to care for his wife, who has Parkinson’s disease.

The complaint reports that Office of Economic Development Director Teena Rasmussen fired him Jan. 27, 2017, effective Jan. 31, ostensibly because of “budget issues,” although a higher-paid replacement took his position. The center has the same number of employees as it did when Straub worked there, and many county employees received a 12 percent pay raise – retroactive to July 2016 — shortly after Straub was terminated, his amended complaint says.

The amended complaint says Straub was replaced by “a substantially younger person,” and he “was advised that the Mayor’s Office would no longer buy T-shirts from his Ultra Hawaii business because he had filed a charge with the Equal Employment Opportunity Commission.”

The complaint also says that Rasmussen told other county employees that “she didn’t want people to be off the job for more than two weeks, and plaintiff was gone for 30 days.”

The termination was “in retaliation for taking the leave,” his complaint says.

Straub alleges his termination was interference and retaliation for taking Family Medical Leave Act time off from work.

According to Judge Seabright’s order denying the county’s motion to dismiss, the county contends that Straub’s lawsuit doesn’t show how his position at the Business Resource Center, supervised by another manager, is connected with Rasmussen, head of the Office of Economic Development. The complaint doesn’t allege Straub had any on-the-job interactions with Rasmussen or even that she knew he was using the Family Medical Leave Act to take time off from work, the judge’s order says.

As for the T-shirt sales, the county contends that its failure to purchase the clothing from Straub’s private business “is not an adverse employment action.” Also, it maintains that state and county procurement law and policy do not “guarantee that any vendor is entitled to a purchase contract with the (county) indefinitely,” the judge’s order says, quoting the county’s motion to dismiss.

A Thursday scheduling conference before Magistrate Judge Richard Puglisi has been set, Kelm said. At that conference, deadlines will be set to move the case forward, including possibly a trial date.

* Brian Perry can be reached at bperry@mauinews.com.

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