United States District Court, D. Hawaii
KEIRON B. PRATT, Plaintiff,
STATE OF HAWAII, DEPARTMENT OF PUBLIC SAFETY, DOE DEFENDANTS 1-10, Defendants.
ORDER GRANTING IN PART MOTION TO DISMISS
Derrick K. Watson United States District Judge
initiated this state and federal law-based employment
discrimination action on December 19, 2017, seeking monetary
damages and equitable relief against his former employer,
Defendant State of Hawai‘i, Department of Public Safety
(“DPS” or “Department”). See
Compl., Dkt. No. 1. For the reasons set forth below, the
Court GRANTS IN PART the Department's Motion to Dismiss.
MTD, Dkt. No. 9. Counts I through V of the Complaint are
hereby DISMISSED to the extent they are based on state law.
The Count I retaliation claim brought under Title VII is also
DISMISSED, insofar as it is based on pre-February 22, 2017
acts of retaliation. Leave to amend is GRANTED with respect
to each of Pratt's Title VII-based claims, consistent
with the instructions below, and is DENIED in all other
worked as a Deputy Sheriff for the Department of Public
Safety from April 2002 until 2017. See Compl.
¶¶ 11, 13, Dkt. No. 1. Initially hired as a
“Deputy Sheriff I” (Compl. ¶ 11), Pratt
“was promoted to Deputy Sheriff II” in 2003
(Compl. ¶ 12). As a Deputy Sheriff II, Pratt was
“assigned to various sections including the Criminal
Investigation Unit [(‘CIU')] of the Sheriff
Division as an Investigator” (Compl. ¶ 13). In
2008, Pratt “sought a transfer from warrants to [the]
records department” (Compl. ¶ 24); in 2009, he
sought a transfer “from the records department to
Capitol Patrol” (Compl. ¶ 25); and in 2013, he
sought a transfer again, this time to CIU (Compl. ¶ 31).
states that he has been “open about his
homosexuality” since receiving a “homosexual
discharge by the military under DD-214” in 1994. Compl.
¶ 15. Although Pratt “did not talk about his
homosexuality” in the workplace prior to 2004 (Compl.
¶¶ 17, 18), “[t]he DD-214 . . . was given
to” DPS when Pratt was hired, and DPS “placed it
in his personnel file with HR” (Compl. ¶ 17).
“In 2004, [Pratt] became openly gay at his workplace in
the Warrants Division after he was informed by his partner
deputy sheriff that everyone at the office, including his
supervisors and fellow deputy sheriffs, knew he was
gay.” Compl. ¶ 18. From that time until 2007,
Pratt claims to have been “repeatedly and frequently
sexually harassed by fellow deputy sheriffs, who would call
him by female-gender names and scorn and ridicule him and his
lack of dating women, and humiliate him by displaying
homophobic behavior toward him.” Compl. ¶ 20.
2008, Pratt filed an administrative complaint with the U.S.
Equal Employment Opportunity Commission (“EEOC”)
and the Hawai‘i Civil Rights Commission
(“HCRC”) regarding this harassment. Compl. ¶
22. Following Pratt's receipt of right-to-sue letters
from both the HCRC and the EEOC, Pratt filed suit in state
court in 2012, Civil No. 12-1-1409-05 KKS (“2012
Lawsuit”). Compl. ¶ 27; see MTD, Ex. 1
[2012 Compl.], Dkt. No. 9-6.
1, 2014, Pratt alleges that he “was again subjected to
sex discrimination, [a] sexually hostile work environment,
and retaliation by his fellow deputies” in the CIU,
“who ridiculed him for his sexual orientation (gay) and
stated that [he] was his partner's ‘10-3', a
code used for deputies who are married and are seeing someone
on the side.” Compl. ¶ 32. DPS also “took
[Pratt's] gun away from him in May 2014.” Compl.
¶ 34. As a result of these incidents, Pratt filed
another Charge of Discrimination, and after receiving a
Notice of Dismissal and a right-to-sue letter from the HCRC,
Pratt sued DPS again in both state and federal courts. Compl.
¶ 33 (citing Keiron Pratt v. State of Hawaii, et
al.; Civil No. 15-1-1289-07 JHC (1st Cir. Ct., State of
Hawai‘i); Keiron Pratt v. State of Hawaii, et
al., Civil No. 15-00264 HG KSC, 2-1-1409-05 KKS (D. Haw.
July 14, 2015) (“2015 Lawsuit”)); see
Cook Decl., Ex. 4 [Compl., 1:15-cv-00264-HG-KSC (D. Haw. July
14, 2015)], Dkt. No. 9-9. According to Pratt, the 2015
Lawsuit was “resolved in [his] favor pursuant to a
settlement agreement (‘the April 2016
Settlement').” Compl. ¶ 35, Dkt. No. 1; Cook
Decl., Ex. 5 [Stip. For Dismissal with Prejudice (filed May
5, 2016)], Dkt. No. 9-10 [hereinafter Order Dismissing 2015
alleges that “[a]fter the April 2016 Settlement and
because of the suits, ” DPS subjected him yet again to
a “further sexually hostile work environment, sex
discrimination, and retaliation.” Compl. ¶ 36.
Pratt summarizes the facts underlying these alleged
wrongdoings in paragraph 36 of the Complaint (see,
infra, at 5-6), and asserts that these events resulted
in another Charge of Discrimination with the HCRC and EEOC on
February 22, 2017 (“2017 Charge”). Hernandez
Decl., Ex. 6 [2017 Charge], Dkt. No. 9-11 (designated as FEPA
No. 19624; EEOC No. 37B-2017-00121).
HCRC issued Pratt a Notice of Dismissal and a right-to-sue
letter on September 26, 2017, and the EEOC did the same on
October 16, 2017. Compl. ¶¶ 3-4, Dkt. No. 1.
Following his receipt of these notices, Pratt initiated the
instant lawsuit on December 19, 2017. Compl. ¶¶
3-4, Dkt. No. 1.
asserts five counts against DPS:
1) Retaliation under both the Civil Rights Act of 1964,
§§ 701 et seq., 42 U.S.C. §§
2000, et seq. (“Title VII”) and HEPA,
Hawai‘i Revised Statutes (“HRS”)
§§ 378-1 and 378-2 (“Count I”; Compl.
2) Sexually Hostile Work Environment, in violation of both
Title VII, 42 U.S.C. §§ 2000, et seq., and
HEPA, HRS §§ 378-1 and 378-2 (“Count
II”; Compl. ¶¶ 42-45);
3) Sex Discrimination, in violation of both Title VII, 42
U.S.C. §§ 2000, et seq., and HEPA, HRS
§§ 378-1 and 378-2 (“Count III”; Compl.
4) Retaliation under the Whistleblower's Protection Act,
HRS § 378-62 (“Count IV”; Compl.
¶¶ 55-58); and 5) Intentional Infliction of
Emotional Distress (“IIED”; “Count
V”; Compl. ¶¶ 59-63).
relevant part, Pratt describes the alleged misconduct
underlying these claims as follows:
a. On September 9, 2016, when it was time for [Pratt]'s
annual Employee Performance Appraisal Form, First Deputy
Albert Cummings refused to complete it, falsely stating in
the form, “Unable to rate in the capacity of a Deputy
Sheriff since he has not been assigned to regular duties
since July 2014. [sic] Plaintiff had been assigned to regular
duties during this time period, for Cummings assigned
Plaintiff to investigate and complete at least 40 cases as
Deputy Sheriff II from September 2014 through December 2016.
Cummings' misrepresentation on the Employee Performance
Appraisal form constitutes falsification of an official
b. On December 29, 2016, [DPS] took [Pratt]'s
Sheriff's badge away from him, which he was allowed to
maintain after [DPS] removed his gun in May 2014, and he
continued to perform his duties as Deputy Sheriff II;
c. On February 17, 2017[, ] [DPS] moved [Pratt] out of the
Sheriff CIU office into the Hawaii Paroling Authority office,
changed his job title from Deputy Sheriff II to Office
Assistant III, and demoted him from a Sheriff/Investigator in
CIU to a secretary for the Hawaii Paroling Authority, all of
which were done against Plaintiff's voluntary consent;
d. In April 2017, [Pratt] was warned by a person in HR that
“they retaliated against you.”
e. In April 2017, [DPS] transferred [Pratt] out of the Office
Assistant job at the Sheriff's Division to the Hawaii
Paroling Authority making him Parole Officer III, also
without his voluntary consent;
f. In late April 2017, [DPS] coerced or attempted to coerce
[Pratt] into signing an agreement withdrawing all grievances
and future lawsuits against [DPS], which [Pratt] refused to
g. On June 28, 2017, [DPS] created a fraudulent Performance
Appraisal System (“PAS”) in which [DPS] falsely
reported that [Pratt] had been doing “unsatisfactory
work” as Parole Officer III, for [Pratt]'s
signature on the PAS was forged, [Pratt] had not been on the
job long enough to justify or warrant the PAS, and on
December 12, 2017, [Pratt] learned from HR that the June 28,
2017 PAS was never in his personnel file, confirming that the
June 28th PAS was fabricated and forged; and
h. On November 22, 2017, three days before Thanksgiving and
15 minutes before [Pratt]'s quitting time, [DPS], by and
through [Pratt]'s supervisors, Corey Reincke and Andrew
Morgan, blinded-sided [sic] [Pratt] with a notice of
unsatisfactory work performance, claiming that his work had
been unsatisfactory and that he had three months to bring it
up to a satisfactory level, which claim was bogus, fabricated
by [DPS] to set [Pratt] up for a termination or to force him
to quit, and pretextual, to conceal [DPS]'s
discriminatory and retaliatory motive.
Compl. ¶¶ 36(a)-(h), Dkt. No. 1. As a “direct
and proximate result” of this wrongful conduct, Pratt
alleges that he has suffered, and continues to suffer,
“substantial economic and non-economic damages,
including, but not limited to, medical expenses, loss of past
and future income, loss of future earning capacity, severe
physical manifestations of his medical/mental condition,
serious emotional distress, serious mental anguish, loss of
quality of life, loss of enjoyment of life, and other related
damages.” Compl. ¶ 37. In its prayer for relief,
the Complaint therefore requests “back pay, front pay,
compensatory damages, special damages, and general damages,
together with costs of suit, ” and “reasonable
attorneys' fees, ” among other things. Compl. at
15, Dkt. No. 1.
the Court is the Department's January 5, 2018 Motion to
Dismiss (“MTD”). MTD, Dkt. No. 9. Following a
hearing on March 16, 2018 (see EP, Dkt. No. 14), the
Court took matters under advisement. This disposition
to Dismiss for Lack of Subject Matter Jurisdiction
court's subject matter jurisdiction may be challenged
under Federal Rule of Civil Procedure (“FRCP”)
12(b)(1). The parties may also raise the issue of subject
matter jurisdiction at any time under FRCP 12(h)(3),
Augustine v. United States, 704 F.2d 1074, 1075 n.3
(9th Cir. 1983), and a federal court must generally
“satisfy itself of its jurisdiction over the subject
matter before it considers the merits of a case, ”
Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583
(1999) (citing Steel Co. v. Citizens for a Better
Env't, 523 U.S. 83, 94-95 (1998)). If the court
determines at any time that it lacks subject matter
jurisdiction, the court must dismiss the action.
Billingsley v. Comm'r of Internal Revenue Serv.,
868 F.2d 1081, 1085 (9th Cir. 1989) (“[T]he court is
under a continuing duty to dismiss an action whenever it
appears that the court lacks jurisdiction.” (quoting
Augustine, 704 F.2d at 1077)).
Rule 12(b)(1) motion to dismiss, “the district court is
ordinarily free to hear evidence regarding jurisdiction and
to rule on that issue prior to trial, resolving factual
disputes where necessary.” Augustine, 704 F.2d
at 1077 (citing Thornhill Publ'g Co. v. Gen. Tel.
Corp., 594 F.2d 730, 733 (9th Cir. 1979)); see also
McCarthy v. United States, 850 F.2d 558, 560 (9th Cir.
1988). Where the court considers evidence outside the
pleadings for this purpose, “[n]o presumptive
truthfulness attaches to plaintiff's allegations, and the
existence of disputed material facts will not preclude the
trial court from evaluating for itself the merits of
jurisdictional claims.” Augustine, 704 F.2d at
1077 (citing Thornhill, 594 F.2d at 733).
“Once the moving party [converts] the motion to dismiss
into a factual motion by presenting affidavits or other
evidence properly brought before the court, the party
opposing the motion must furnish affidavits or other evidence
necessary to satisfy its burden of establishing subject
matter jurisdiction.” Savagev. Glendale
Union High Sch., 343 F.3d 1036, 1040 n.2 (9th Cir.
2003). However, “where the jurisdictional issue and
substantive issues are so intertwined that the question of
jurisdiction is dependent on the resolution of factual issues
going to the merits, the jurisdictional determination should
await a determination of the relevant facts on either a