LAW OFFICE OF CARL M.

VARADY
Electronically Filed
CARL M. VARADY 4873
Pauahi Tower FIRST CIRCUIT
1003 Bishop Street, Suite 1730 1CCV-21-0000872
Honolulu, Hawai‘i 96813 07-JUL-2021
Telephone: (808) 523-8447 10:05 AM
e-mail: carl@varadylaw.com Dkt. 1 CMP

Attorney for Plaintiff

IN THE CIRCUIT COURT FOR THE FIRST CIRCUIT

STATE OF HAWAI‘I

JENNIFER SMITH, Ph.D., CIVIL NO.

Plaintiff, VERIFIED COMPLAINT FOR

DECLARATORY, INJUNCTIVE AND OTHER
vs. RELIEF; JURY DEMAND

STATE OF HAWAI‘I, ELIZABETH CHAR,

M.D., in her official capacity only, and
DOH ENTITIES 1-10,

Defendants.

VERIFIED COMPLAINT FOR DECLARATORY, INJUNCTIVE AND OTHER RELIEF

Plaintiff JENNIFER SMITH, Ph.D., through her attorney, Carl M. Varady,

files this Complaint against Defendants and alleges as follows:

JURISDICTION AND VENUE

1. This Court has subject matter jurisdiction over the claims set

forth in this Complaint pursuant to Hawaii Revised Statutes §§ 603-21.5 & 632-1 and

has personal jurisdiction over Defendants pursuant to Hawaii Revised Statutes § 634-

35. The venue is appropriate in the First Circuit of the State of Hawai‘i pursuant to
Hawai‘i Revised Statutes § 603-36.

PARTIES

2. Plaintiff JENNIFER SMITH, Ph.D. (“Plaintiff”) is a resident of

Honolulu, Hawai‘i and was employed by the State of Hawai‘i, Department of Health as

an Epidemiological Specialist IV.

3. Defendant State of Hawai‘i (the “State”) is a body politic, with

its business offices located in Honolulu, Hawai‘i. Among its departments, the State

operates a Department of Health (“DOH”).

4. ELIZABETH CHAR, M.D., is employed as the Director of the DOH.

She is named in this action in her official capacity.

5. The Defendants designated as JOHN DOES 1-10, JANE DOES 1-10,

DOE CORPORATIONS 1-10, DOE PARTNERSHIPS 1-10 and DOE GOVERNMENTAL ENTITIES

1-10 (hereinafter collectively referred to as “Doe Defendants”) are sued herein under

fictitious names for the reason that their true names and identities are presently

unknown to Plaintiffs, despite Plaintiffs’ diligent and good faith efforts to obtain this

information, except that said Doe Defendants were connected in some manner with

the named Defendants and were individuals, corporations, parent corporations,

divisions, subsidiaries, entities, agents, representatives, associations, affiliates,

associates, co-venturers, business entities, employers, employees, servants, vendors,

suppliers, manufacturers, subcontractors and contractors, or governmental entities,

agencies or bodies, responsible in some manner presently unknown to Plaintiffs for

the injuries and damages to Plaintiffs. Plaintiffs hereby pray for leave to certify the

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true names and capacities, activities and/or responsibilities of said Doe Defendants

when the same are ascertained.

SUMMARY OF THE ACTION

6. In this action Jennifer Smith alleges that she was subjected to

intentional and unlawful harassment, hostile work environment, and retaliation in

violation of the Hawai‘i Constitution and laws, after she spoke out as a private citizen

on matters of grave public concern regarding the SARS COVID-19 pandemic (the

“Pandemic”) and DOH’s response to and public statements regarding the Pandemic

including, without limitation, DOH’s contact tracing practices and reporting.

DETAILED FACTUAL STATEMENT

7. Dr. Smith is a Virologist who worked for DOH as an

Epidemiological Specialist IV from August 15, 2016, through May 28, 2021. During the

course and scope of her employment, Dr. Smith’s work has met or exceeded

expectations.

8. During the Pandemic beginning in March 2020, Dr. Smith was

assigned to obtain, analyze, and report accurate data regarding infection,

transmission, and mortality rates from the disease. Collecting and accurately

reporting such data is mandatory under Haw. Admin. R., Title 11, Chapter 156, which

specifically identified SARS COVID-19 as an “urgent” disease with novel symptoms that

required immediate reporting.

9. From March through August 2020, Dr. Smith was aware that these

data were not being accurately collected or reported and that repeated attempts to

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obtain resources, direction, and support from DOH managers, including without

limitation Sarah Park, M.D., had gone unanswered.

10. During that time period Dr. Smith and other DOH employees were

routinely working more than 8 hours per day, six to seven days every week.

11. During that time, Dr. Park held only one staff meeting in July

2020. Dr. Smith’s and other staff concerns about lack of resources, direction, and

support to collect and accurately analyze and report data as mandated by Haw.

Admin. R., Title 11, Chapter 156 were communicated to Dr. Park. These concerns

were ignored dismissively by Dr. Park, who merely directed staff to keep doing what

they had been doing.

12. In July 2020, Dr. Smith made a telephone call to the HGEA union

representative to discuss staffing issues at DOH, mandatory 6-day work weeks and

concerns with collecting specimens from ill residents. She and other employees of

DOH had a follow up meeting with the HGEA union representative to discuss lack of

staffing and ability to keep up with case investigations, and the effect of the lack of

staffing on the accuracy of reported data regarding infections, exposures, and deaths.

13. In July 2020, Dr. Smith inquired as to why the National Guard had

not been activated to assist with case investigations and contact tracing. She was told

that Dr. Park refused to send a required Request for Assistance to the Guard.

14. On July 29, 2020 Dr. Smith asked Dr. Scott Miscovich to introduce

her to Lt. Governor Josh Green so that she could report to Lt. Governor Green about

the lack of staffing at DOH and its effect on false and/or incomplete data being

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reported by Dr. Park and other DOH officials regarding the Pandemic. That same day,

Dr. Park told the Special Senate Committee on COVID-19 that DOH had 77 active

contact tracers. This statement was false. In a telephone call with Lt. Governor Green

on July 30, 2020, Dr. Smith discussed the lack of staffing at DOH and sent him actual

staff performance metrics outlining the number of staff actually involved in case

investigations and contact tracing and contradicting Dr. Park’s public assertions.

15. On August 4, 2020, Dr. Smith and another DOH coworker met with

the Senate Ways and Means Committee at the State Capitol. The day before the

Director of the Department of Health had reported there were 105 contact tracers

working the outbreak response with 62 on Oahu. This statement was false. Dr. Smith

provided the Senate Committee with a list of actual performance metrics for those

involved in COVID-19 case investigation. This report listed the 15 people statewide

responsible for case investigation and contact tracing, as well as how many cases each

had investigated and the number of contacts that they had reached.

16. On August 6, 2020, Dr. Smith spoke with Rep. Tulsi Gabbard and

reported failures of DOH to increase staffing and contact tracing capacity. Dr. Smith

again shared the performance metrics with her showing there were only 15 DOH staff

members statewide responsible for case investigation and contact tracing and

number of cases and contacts each person had been assigned. Representative

Gabbard discussed that she and other members of Congress had appropriated federal

monies to fund the response efforts. At the end of March 2020 President Trump signed

into law the Coronavirus Aid, Relief, and Economic Security (CARES) Act, providing

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$2.2 billion to Hawai‘i, which allocated $58 million to preparedness and response to

COVID-19.

17. DOH officials, including Dr. Park, were aware of Dr. Smith’s

communications with Lt. Governor Green, the Senate Ways and Means Committee and

Rep. Gabbard, as well as her communication with HGEA regarding DOH’s actions.

18. On August 14, 2020, as the Pandemic accelerated in Hawai‘i, Dr.

Smith’s concerns about the threat posed by DOH’s inability to collect and accurately

analyze and report data became more acute. Dr. Smith had conveyed these concerns

to state legislators and U.S. Rep. Tulsi Gabbard. Dr. Smith accepted an invitation to

speak at a press conference convened by Rep. Gabbard. Dr. Smith spoke out publicly

as a private citizen about the difficulties DOH employees were having fulfilling their

duties under Haw. Admin. R., Title 11, Chapter 156, which directly inhibited DOH’s

ability to gather, and report complete and accurate data and protect the public from

the Pandemic. Among the concerns she raised were:

a. Inadequate number of staff and inadequately trained staff to

address the emergency need for contact tracing of persons

infected with SARS COVID-19;

b. Inability of staff to assure public health and safety through

contact tracing and reporting, even though staff were working

long hours six to seven days per week;

c. The need for more funding and resources to adequately gather

and assess data, educate, and inform the public; and,

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 d. The effect of the lack of resources and leadership on DOH’s ability

to accurately collect and report data as required by DOH

regulations.

19. Dr. Smith was suspended with pay on Friday, September 4, 2020,

after speaking out publicly about the understaffing of DOH COVID-19 contact tracers

and their working conditions and after false accusations that she had made

threatening comments at work.

20. The reasons given for her suspension were false and pretextual.

The actual reason was that DOH was retaliating against Dr. Smith for speaking out as a

private citizen on matters of grave public health concern.

21. Dr. Smith was reinstated on October 28, 2020, after the DOH

investigation found that the anonymous allegations about threatening comments

made by her at work were unsubstantiated.

22. After being reinstated, Dr. Smith was reassigned to document and

report on influenza cases, rather than COVID-19 contact tracing that she had done

previously. Dr. Smith’s workload was reduced to nearly nothing. She was

underutilized and isolated from the rest of DOH staff and managers.

23. Dr. Smith continued to fulfill her assigned duties at satisfactory or

above levels. She was not disciplined or counseled. She was not given a performance

evaluation. She was not put on a performance improvement plan. She was not

warned that she was being investigated or about to be terminated.

24. On May 14, 2021, Dr. Smith was told for the first time she was to

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be terminated by DOH. The letter informing her of the threatened termination was

vague, cited no evidence, was an attack on her character and reputation, and did not

provide her notice of specific laws, rules, or policies she was accused to have

violated.

25. Dr. Smith met with DOH officials Sarah Kemble, M.D., and Danette

Wong Tomiyasu, M.B.A., on May 21, 2021, with her attorney and HGEA union

representative. As there had been no investigation, as required by Haw. Rev. Stat. §

77-46 and Chapter 80, as well as the HGEA collective bargaining agreement (“CBA”),

Dr. Smith had no prior notice of what evidence DOH was relying on to threaten her

termination or any specific laws, rules, or policies she was accused to have violated

that could justify such termination.

26. Even though she was denied Due Process, guaranteed by the

Hawai‘i Constitution, Article I, § 5, Haw. Rev. Stat. § 76-46 and Chapter 80, and the

CBA, she responded to DOH’s vague and unsubstantiated charges and threat of

termination without having been presented with any evidence by DOH, without an

opportunity to rebut such evidence, and without any explanation of specific laws,

rules, or policies she was accused to have violated.

27. At the meeting on May 21, 2021, Kemble and Tomiyasu refused to

provide any explanation of the vague and unsubstantiated charges, disclose any

investigation, evidence, an opportunity to rebut evidence, or any explanation of

specific laws, rules, or policies she was accused to have violated. Dr. Smith was

forced to speculate in response to the threatened termination as to what specific

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laws, rules, or policies she was accused to have violated and what evidence DOH was

relying on in threatening Dr. Smith with termination.

28. The HGEA representative pointed out that DOH’s threat of

termination without explanation of specific laws, rules, or policies Dr. Smith was

accused to have violated, without a formal investigation, presentation of evidence,

and/or opportunity to rebut evidence, was a denial of Due Process, violated Haw.

Rev. Stat. § 77-46 and Chapter 80, and the CBA, at the meeting on May 21, 2021.

29. Kemble and Tomiyasu refused to provide any explanation of the

vague and unsubstantiated charges, disclose any investigation, evidence, an

opportunity to rebut evidence, or any explanation of specific laws, rules, or policies

Dr. Smith was accused to have violated.

30. Dr. Smith’s attorney pointed out to Kemble and Tomiyasu that

forcing an accused person to defend herself without knowing the evidence considered

against her, or specific laws, rules, or policies she was accused to have violated, was

the hallmark of totalitarian regimes that deny Due Process and antithetical to

democratic government.

31. Kemble and Tomiyasu refused to provide any explanation of the

vague and unsubstantiated charges, disclose any investigation, evidence, an

opportunity to rebut evidence, or any explanation of specific laws, rules, or policies

she was accused to have violated in response.

32. On May 27, 2021, Dr. Smith was terminated without further

explanation of the vague and unsubstantiated charges, disclosure of any investigation,

9
evidence, an opportunity to rebut such evidence, or any explanation of specific laws,

rules, or policies she was accused to have violated in response.

33. On information and belief, the decision to terminate Dr. Smith

was made by Char, or with her ratification, knowledge, consent, or approval, and

instigated by Kemble and/or Tomiyasu, acting in concert and/or individually.

34. All individual defendants were acting within the course and scope

of their employment and authority at all times and in all actions herein alleged.

35. Defendants terminated Dr. Smith in retaliation, for her opposition

to and reporting of the flaws in DOH’s response to the SARS COVID-19 Pandemic

36. These events and actions caused damage to Dr. Smith’s

reputation, economic, general, and special damages, including lost income and

employment opportunities, impeded her opportunities for future employment, and

caused her severe and continuing psychological and emotional distress.

FIRST CLAIM FOR RELIEF

(Whistle Blower Protection Act, Haw. Rev. Stat. § 378-62)

37. Plaintiff incorporates by reference the paragraphs above.

38. Defendants have threatened and harassed Plaintiff in the terms,

conditions, and privileges of her employment because and terminated her because

she reported to the Defendants and to public bodies, verbally or in writing what

Plaintiff reasonably believed to be a violation or a suspected violation of laws, rules,

ordinances, or regulations, adopted pursuant to law of this State, a political

subdivision of this State, or the United States.

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 39. Defendants have violated Haw. Rev. Stat. § 378-62 by threatening

and harassing Plaintiff in the terms, conditions and privileges of her employment and

terminating her because of her reports of what she reasonably believed to be

unlawful conduct.

40. As a direct and proximate result of Defendants’ threats,

harassment, termination and other retaliation, Plaintiff has suffered economic,

general, and special damages, including lost income and employment opportunities,

in an amount to be proved at trial.

41. As a further result of Defendants’ actions, Plaintiff has necessarily

retained attorneys to prosecute this action. Plaintiff is therefore entitled to an award

of reasonable attorney’s fees and litigation expenses incurred in bringing this lawsuit.

SECOND CLAIM FOR RELIEF

(Public Policy)

42. Plaintiff incorporates by reference the paragraphs above.

43. Plaintiff is an employee who has met all requirements for

membership in the civil service under Haw. Rev. Stat. § 76-27.

44. The legislature has expressly declared that discharges of civil

service employees may be made only for such causes that will promote the efficiency

of government service.

45. The legislature has expressly declared that demotions or

discharges of civil service employees shall be in accordance with procedures

negotiated under chapter 89 or established under chapter 89C, as applicable, which

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guarantees that collective bargaining rights of governmental employees are protected

by the civil service statute.

46. Retaliation for reporting violations of law do not promote the

efficiency of government service against and is void as against public policy.

47. Defendants' threats, harassment, termination, and other

retaliation toward Plaintiff were unlawful and in violation of Hawai‘i public policy set

forth in the Haw. Rev. Stat. chapt. 76 for which Plaintiff enjoys a private right of

action. Parnar v. Americana Hotels. Inc., 65 Haw. 370, 652 P.2d 625 (1982).

48. As a direct and proximate result of Defendants’ threats,

harassment, termination, and other retaliation in violation of Hawai‘i public policy,

Plaintiff has suffered economic, general, and special damages, including lost income

and employment opportunities, in an amount to be proved at trial.

49. As a further result of Defendants’ actions, Plaintiff has necessarily

retained attorneys to prosecute this action. Plaintiff is therefore entitled to an award

of reasonable attorney’s fees and litigation expenses incurred in bringing this lawsuit.

THIRD CLAIM FOR RELIEF

(FREEDOM OF EXPRESSION)

50. Plaintiff incorporates by reference the paragraphs above.

51. Plaintiff enjoys the right of freedom of expression protected by

Article I, Section 4 of the Hawai‘i Constitution.

52. Plaintiff spoke out on matters of grave public concern regarding

DOH’s incapacity to gather, analyze, and report SARS COVID-19 data during the

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Pandemic, including, without limitation:

a. Inadequate number of staff and inadequately trained staff to

address the emergency need for contact tracing of persons

infected with SARS COVID-19;

b. Inability of staff to assure public health and safety through

contact tracing and reporting, even though staff were working

long hours six to seven days per week;

c. The need for more funding and resources to adequately gather

and assess data, educate, and inform the public; and,

d. The effect of the lack of resources and leadership on DOH’s

ability to accurately collect and report data as required by

DOH regulations.

53. Plaintiff’s speech to the legislature, Congress, and the public was:

(1) on a matter of grave public concern; (2) made as a private citizen outside of work;

(3) a substantial or motivating factor in the adverse employment actions taken by

Defendants against her; (4) Defendants treated Plaintiff differently from other

members of the general public who made similar statements; and (5) Defendants

would not have taken the adverse employment actions absent Plaintiff’s protected

speech.

54. Defendants, acting under color of state law, individually or in

concert, have engaged in threats, harassment, termination, and other retaliation

toward Plaintiff that were unlawful and in violation of Plaintiff’s right of freedom of

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expression protected by Article I, Section 4 of the Hawai‘i Constitution.

55. Like all other Americans, Dr. Smith enjoys the right to express

“unpopular” ideas on public issues, even when those ideas are expressed in language

that some find “‘inappropriate’” or “‘hurtful.’” Such unpopular speech, is essential to

our form of self-government. See, Mahanoy Area Sch. Dist. v. B.L., No. 20-255, 2021

U.S. LEXIS 3395, at *22 (June 23, 2021).

56. It is a “bedrock principle” that Plaintiff’s speech may not be

suppressed simply because it expresses ideas that are offensive, disagreeable, or

upsetting. See, Mahanoy Area Sch. Dist. v. B.L., No. 20-255, 2021 U.S. LEXIS 3395, at

*35 (June 23, 2021).

57. Plaintiff cannot be punished by DOH for “blowing the whistle on

serious misconduct.” See, Mahanoy Area Sch. Dist. v. B.L., No. 20-255, 2021 U.S.

LEXIS 3395, at *39 (June 23, 2021).

58. Plaintiff enjoys the right to declaratory and injunctive relief

pursuant to Haw. Rev. Stat. § 632-1 to remedy the harassment, termination, and

other retaliation toward Plaintiff in violation of Plaintiff’s right of freedom of

expression protected by Article I, Section 4 of the Hawai‘i Constitution.

59. As a further result of Defendants’ actions, Plaintiff has necessarily

retained attorneys to prosecute this action. Plaintiff therefore seeks an award of

reasonable attorney’s fees and litigation expenses incurred in bringing this lawsuit

pursuant to the private attorneys general doctrine. Aloha Tower Dev. Corp. v. State

(In re Honolulu Constr. & Draying Co., Ltd.), 130 Haw. 306 (Haw. 2013).

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 FOURTH CLAIM FOR RELIEF

(DUE PROCESS)

60. Plaintiff incorporates by reference the paragraphs above.

61. Article I, Section 5 of the Hawai‘i Constitution guarantees Plaintiff

may not be deprived of life, liberty or property without due process of law.

62. Plaintiff enjoys liberty and property interest in her employment

and profession.

63. Defendants, acting under color of state law, individually or in

concert, have engaged in threats, harassment, termination, and other retaliation

toward Plaintiff that were unlawful and in violation of Plaintiff’s right to due process

protected by Article I, Section 5 of the Hawai‘i.

64. Plaintiff enjoys the right to declaratory and injunctive relief

pursuant to Haw. Rev. Stat. § 632-1 to remedy the harassment, termination, and

other retaliation toward Plaintiff in violation of Plaintiff’s right of freedom of

expression protected by Article I, Section 5 of the Hawai‘i Constitution.

65. As a further result of Defendants’ actions, Plaintiff has necessarily

retained attorneys to prosecute this action. Plaintiff therefore seeks an award of

reasonable attorney’s fees and litigation expenses incurred in bringing this lawsuit

pursuant to the private attorneys general doctrine. Aloha Tower Dev. Corp. v. State

(In re Honolulu Constr. & Draying Co., Ltd.), 130 Haw. 306 (Haw. 2013).

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 FIFTH CLAIM FOR RELIEF

(DEFAMATION)

66. Plaintiff incorporates by reference the paragraphs above.

67. Defendants intentionally made false and defamatory statements

concerning Plaintiff.

68. Defendants have published through speech and/or writing

comments imputing that Plaintiff is unfit to perform the duties of her occupation or

which have a tendency to prejudice her in her employment (the "Defamatory

Statements"). The Defamatory Statements were not privileged and were published.

69. Defendants made the Defamatory Statements intentionally,

knowingly, willfully and/or with conscious disregard for their truth or falsity.

70. Because the Defamatory Statements impute a lack of professional

ability, they were defamatory per se, and are actionable irrespective of special harm.

71. Defendants’ actions and omissions were a substantial motivating

factor causing Plaintiff economic losses, general and special damages, including

personal physical injury, sickness and mental worry, anxiety, anguish, suffering, and

grief, lost income, and employment opportunities, in an amount to be proved at trial.

72. As a further result of Defendants’ actions and omissions, Plaintiff

has necessarily retained attorneys to prosecute this action. Plaintiff is therefore

entitled to an award of reasonable attorneys’ fees and litigation expenses incurred in

bringing this lawsuit.

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