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Oahu firm sued for alleged COVID-19 safety retaliation

A former employee of an Oahu dolphin tour company says she was fired in retaliation for urging the company to comply with COVID safety laws and protocols and is now suing the company and its owner, Richard Holland.

Yumi Ishizuka, a former human resources coordinator for Ocean Journeys, which operates Dolphins and You, says she objected when the company’s owner discouraged staff from complying with social distancing and mask rules. She says Holland also sought to skirt lowered capacity limits on its boat tours, which the state implemented to protect the public against the spread of the coronavirus.

The lawsuit alleges that the company violated the state’s whistleblower protection law and public policies in terminating her employment. The complaint, filed in 1st Circuit Court, calls Holland’s behaviour “atrocious, and utterly intolerable in a civilized society.”

Holland did not respond to requests for comment. His company, which has operated for more than three decades, conducts snorkel tours in areas frequented by dolphins. The company’s website says it has implemented COVID safety protocols, including reduced boat capacity to allow for social distancing during tours, frequent sanitation, temperature checks of staff and face masks when indoors.

However, emails between Holland and staff that are referenced in the complaint, and others provided to the Honolulu Star-Advertiser, suggest that Holland sought to avoid such safety precautions during tours and in interactions with staff.

The lawsuit adds to the thousands of complaints that have been lodged against employers throughout the country since the start of the pandemic, alleging a lack of COVID safeguards.

In December, Holland sent an email to staff complaining about state restrictions on the number of people allowed on boats, according to the complaint. At the time, the state had limited the occupancy on commercial, recreational boats to 25% of the maximum occupant load.

“We need to take control of (the) matter and do whatever we have to do to make good common sense of things,” Holland wrote. “I honestly think we should not be cutting ourselves off at 25 (passengers), and we should fudge the numbers and go maybe even up to 40 minimum.”

Holland wrote that “there is no one really policing this,” and says if caught he’s the only one who would get in trouble.

He also tells staff that the ocean tours aren’t governed by state laws, but rather “maritime law through the Jones Act.”

“The other truth to the matter is that the government is totally unconstitutional, we have the right to earn a livelihood,” he wrote.

In February, Holland sent another email to staff, seeking to schedule a managers meeting, in which he encourages staff not to wear masks.

He complains about the mask mandate, writing that the government was “forcing this hoax down our throats.” It’s not clear if Holland meant that he believed COVID was a hoax or that he didn’t believe masks were needed.

“I would like to challenge you who are brave and smart enough to meet Shanti and others for our managers meeting in person without a mask on,” he wrote, according to the complaint. “If this is too tall of an order then so be it, we will see you on remote zoom call.”

Holland writes that those who show up for the meeting will be taken out to lunch beforehand and will be given “envelopes.” Andrew Stewart, an attorney for Ishizuka, said the email implied that employees who showed up to the meeting without masks would be given a monetary reward.

Ishizuka emailed Holland back and said she intended to go to the meeting in person wearing a mask. “It’s not a matter of being brave or smart about not wearing a mask,” she wrote. “It’s about being smart to protect myself. … I did my research and am making the proper decision using my common sense and knowledge. I comply with Hawaii’s regulations because this is the right thing for me to do.”

Ishizuka added that she was disappointed that Holland was “bribing” staff with lunch and an “envelope” to attend the meeting not wearing masks.

On March 2 Ishizuka emailed Holland to say that she would like to bolster office safety by installing partitions on the counter where customers are assisted and signs reminding customers to social-distance and wear masks.

Holland said he would support that, but also wrote that “we don’t want to have to overshoot it either and promote fear.”

Stewart said tensions between Holland and Ishizuka escalated when an employee tested positive for COVID and Ishizuka instructed all staff to get tested, resulting in two more staff testing positive.

On April 25 Holland demoted Ishizuka, according to the complaint. Holland asked to meet with her on a Sunday to discuss her new role in the company. Ishi­zuka wrote back asking to meet on Monday or another day since Sunday was her day off and the only time she had to spend with her boyfriend.

“Yumi this is exactly why we are in the position we are in with you,” Holland wrote back. “You are self-serving and not a team player. You demand everyone quarantines, while you are spending time with your boyfriend. …

“I am sorry this is unacceptable and as of this email you are terminated immediately!”

Ishizuka, who at the time was quarantining, said she had been a cooperative employee.

“A couple of your employees were sick, whether you believe in COVID or not,” she wrote to Holland. “Telling us not to wear masks even though it is mandated in the State of Hawaii is not acceptable as a business owner. You disregard what we think about what we believe in to prevent this from spreading among ourselves and to our loved ones.”

In a subsequent email, Holland complained that Ishizuka had been encouraging staff to go through another round of COVID testing, which he had urged staff to hold off on.

“I am not holding you fully responsible for this 10-day shutdown, but you certainly influenced the situation that led to our work stoppage,” he wrote in an email to Ishizuka as he complained about the company’s lost revenue.

“You can’t or don’t want to humble yourself to respect me and the direction I believe is most beneficial for our company,” he wrote.

The lawsuit seeks monetary damages to be proved at trial.

“The way my client was treated was extremely unfair and troubles me as a member of the general public,” said Stewart.

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