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Pratt v. State, Department of Public Safety

United States District Court, D. Hawaii

April 9, 2018

KEIRON B. PRATT, Plaintiff,


          Derrick K. Watson United States District Judge

         Pratt 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 respects.


         Pratt 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).

         Pratt 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.

         In 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]

         On May 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 Lawsuit].

         Pratt 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).

         The 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.

         Pratt 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. ¶¶ 38-41);
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. ¶¶ 46-54);
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).

         In 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 government document;
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 sign;
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.

         Before 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 follows.


         Motion to Dismiss for Lack of Subject Matter Jurisdiction

         A 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)).

         On a 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 ...

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