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Water engineer files discrimination suit

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Posted: Wednesday, July 10, 2013 12:45 am

LIHUE — A senior engineer with the County Department of Water has filed an age discrimination suit against the Department of Personnel Services.

Dustin Lee Moises, 32, alleges that actions of the former DPS discriminated on the basis of his age in his compensation and selection for a position that he was qualified for in the Department of Water. The suit alleges the actions are in violation of Chapter 378 of Hawaii Revised Statutes.

The civil complaint was filed Monday in 5th Circuit Court by the Law Office of Clayton C. Ikei in Honolulu. The defendants in the suit include the County, Department of Personnel Services, and Malcolm Fernandez, individually and in his capacity as former DPS Director.

“The County has yet to be served on this matter, so we are unable to comment on the specifics of the complaint,” said Mary Daubert, public information officer. “Furthermore, the County doesn’t comment on pending litigation or personnel matters.”

Moises is suing for damages in an amount equal to the wages and benefits he believes were effectively denied to him based on illegal conduct. He filed a discrimination claim with the Hawaii Civil Rights Commission on July 10, 2012, and a Right to Sue letter was issued April 22, 2013.

Moises is a 1999 graduate of Kauai High School and earned a bachelor’s degree from the University of Hawaii, School of Civil and Environmental Engineering. He started with the county after graduating in 2005 and was named DOW Employee of the Year in 2012.

The discrimination started in 2010, according to the complaint, when he said the DPS stated he should not get a higher salary because of his age. That same year he was reallocated to the position of principal project manager with a reduction in pay level, and then downgraded to a waterworks project manager’s classification.

The DOW is a small and partially autonomous office where people often work beyond their job description out of necessity, Moises said. The DPS did not give him adequate credit for relative work experience and stuck to the letter of the official occupation titles, he said.

This relative work experience should count for years of relative management work toward promotional opportunities, he said. There were several retirements in a short period and he gained senior engineer, design and construction experience a decade before he would expect to reach that level.

“They compared me to other people rather than to what I did,” he said.

When the county advertised a one-day posting for a higher grade project management position in 2011, Moises submitted his application two days later and received a DPS letter notifying him that the position was canceled. He applied the following month for a county advertised chief of water operations position but was advised by DPS that he was not qualified for lack of requisite experience.

Moises appealed the decision and on May 5, 2011, he was partially granted his appeal. While awaiting the outcome, however, Moises said the DPS made a decision that it would not delay the hiring of an applicant for the duration of the appeal and filled the position.

“They pulled the list,” Moises said. “Even if they had fully granted my appeal it would all have been moot.”

In July 2011, the Department of Water submitted a proposed reorganization to include a new construction management officer position. The position was approved following a DPS appeal to the Civil Service Commission but was downgraded the day after Moises submitted an application in September 2012.

DPS stated that Moises was selected for the position and negotiated a $94,000 salary with DOW management. A month later the DPS reduced the salary to $84,000.

Moises said the process made him feel as though he was “always one step behind.” It has affected his personal life and the Water Department, he said.

The action was based on his age and resulted in lost wages and benefits, Moises added. He claims emotional distress for a reduced ability to provide for himself and his wife and two young daughters.

“The actions by individuals within the Department of Personnel Services have greatly impacted me, my family, and the DOW over the last several years,” Moises said. “I believe personnel decisions should be based on an applicant’s merit, not their age.”

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