Guerrero v. Hawaii
| Decision Date | 24 August 2009 |
| Docket Number | CV. No. 08-00344 DAE/BMK. |
| Citation | 662 F.Supp.2d 1242 |
| Parties | Peter C. GUERRERO, Plaintiff, v. State of HAWAII, Department of Public Safety; John Does 1-10; Doe Entities 1-10, Defendants. |
| Court | U.S. District Court — District of Hawaii |
Venetia K. Carpenter-Asui, Honolulu, HI, for Plaintiff.
Claire W.S. Chinn, Department of the Attorney General, Honolulu, HI, for Defendants.
ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
On August 20, 2009, the Court heard the motion for summary judgment by Defendant State of Hawaii, Department of Public Safety ("PSD"). Venetia K. Carpenter-Asui, Esq., appeared at the hearing on behalf of Plaintiff Peter C. Guerrero; Deputy Attorney General Claire W.S. Chinn appeared at the hearing on behalf of Defendant PSD. After reviewing the motion and the supporting and opposing memoranda, the Court GRANTS IN PART AND DENIES IN PART Defendant's Motion.
Plaintiff Peter C. Guerrero was born on the island of Guam and speaks both Chamorro1 and English. After serving as a police officer on Guam and obtaining a B.A. from Honolulu Pacific University2, Plaintiff was hired by PSD on January 9 2006 as a Deputy Sheriff Recruit. (Defendant's Concise Statement of Facts in Support ("Def.'s CSF") ¶ 2.)
Plaintiff then attended recruit school for five months in 2006. While at recruit school, Plaintiff claims to have been subjected to disparate treatment when: (1) other recruits teased him and called him "brown tree snake" (Mot. Ex. A at 45); (2) PSD instructors asked fellow recruits with former law enforcement experience to assist them but never asked Plaintiff, despite his background as a police officer in Guam (id. at 47-48); and (3) he was the only recruit in the class who was not issued a uniform jacket, despite others with the same jacket size being issued one (id. at 55-60). Plaintiff never reported these actions to a supervisor or PSD. (Pl.'s CSF in Oppo ¶ 3.)
On June 15, 2006, Plaintiff completed his recruit training. He was sworn in as a Deputy Sheriff I and assigned to the Capitol Patrol detail, where his duties included the patrol and security of the State Capitol, surrounding State buildings, and Washington Place. (Def.'s CSF ¶ 4.) While assigned to the Capitol Patrol detail, Plaintiff was supervised by Sergeant Reid Ogata ("Sgt. Ogata")3. (Def.'s CSF ¶ 5.)
Plaintiff claims that he was again subjected to disparate treatment by Sgt. Ogata from August 2006 through October 2006. (SAC ¶¶ 18d-18h.) The alleged incidents include Sgt. Ogata yelling or raising his voice to Plaintiff on several occasions, catching Sgt. Ogata and two deputies playing online computer games in the Sheriff's Office and being reprimanded by Sgt. Ogata, and Sgt. Ogata denying Plaintiff use of a patrol vehicle to inspect other State buildings despite allowing another deputy use of the patrol vehicle for the same purpose. (Id.)
Sgt. Ogata evaluated Plaintiff's work as a Deputy Sheriff I from January 6, 2006 to October 8, 2006 in an Employee Performance Appraisal. (Mot. Ex. C.) The evaluation, dated October 27, 2006, rated Plaintiff's performance as "meets expectations." (Id.) Sgt. Ogata discussed the evaluation with Plaintiff and Plaintiff signed an acknowledgment of receipt of the evaluation on October 23, 2006.(Id.)
Plaintiff filed a memo, dated October 10, 2006, requesting a transfer to another watch because he felt unfairly treated by Sgt. Ogata. (Mot. Ex. D.) The request was addressed to Lieutenant Robin Nagamine ("Lt.Nagamine"), the Commander of Capitol Patrol, and therefore Plaintiff's and Sgt. Ogata's supervisor. (Id.) Upon receipt of the request, Lt. Nagamine spoke with First Deputy Sheriff Frederick Caminos ("Caminos") regarding the allegations. Shortly thereafter, Caminos informed Lt. Nagamine that another deputy assigned to the "Next Step" homeless shelter would be out on extended sick leave. (Lt. Nagamine Decl. ¶ 8.) Caminos, upon recommendation from Lt. Nagamine, approved temporary reassignment of Plaintiff to Next Step. (Id.) In a memo dated October 13, 2006, Plaintiff was notified that effective October 15, 2006, he would temporarily be assigned to Next Step, where his duties would consist of checking homeless persons in and out of the shelter. .) Plaintiff contends the transfer to Next Step was done in retaliation for Plaintiff's reporting of disparate treatment. (SAC ¶ 20.)
In December 2006, Plaintiff requested a transfer back to the Capitol Patrol. Plaintiff was informed that he would be transferred in January 2007, under the supervision of Sgts. Ralph Shinmoto and Lester Kekua. (Id. ¶ 23.) On January 16, 2007, Plaintiff was reallocated to a Deputy Sheriff II. (Def.'s CSF ¶ 16.) The reallocation was a promotion for which Plaintiff received a salary increase. (Id.)
Six months later, in July 2007, Lt. Nagamine was replaced by Lt. Albert Cummings ("Lt. Cummings") as Commander of Capitol Patrol. (Def.'s CSF ¶ 17.) On July 9, 2007, Plaintiff claims that Lt. Cummings approached Plaintiff and questioned him in the presence of approximately six sheriffs about Plaintiff working on July 6, 2007. (SAC ¶ 26.) Lt. Cummings allegedly said that he had told the shift sergeants to give deputy sheriffs their holiday day off in order to save overtime money. (Id.) Plaintiff responded that Sergeant Lester Kekua ("Sgt. Kekua") instructed Plaintiff to report for work on July 6, 2007. Plaintiff then claims Lt. Cummings reprimanded Plaintiff for Sgt. Kekua's authorizing him to work. (Id.)
Also in July 2007, Lt. Cummings issued a memorandum to transport coordinator Pamela DeGuzman ("DeGuzman") regarding inter-island prisoner transports. (Mot. Ex. H.) These prisoner transports are voluntary and deputies receive overtime pay for their supplementary hours worked on prisoner transports. The July memorandum supplied DeGuzman with a duty roster of deputies at the State Capitol and requested that inter-island transport assignments not conflict with a deputy's scheduled work shift. (Id.) Lt. Cummings also asked to restrict the assignments to non-work days or pre-shift hours only. (Id.)
On September 10, 2007, Plaintiff and Deputy Richard Stevenson ("Deputy Stevenson") were assigned to the first watch (9:30 p.m. to 6:00 a.m.). (SAC ¶ 30.) Despite the July memorandum, Plaintiff and Deputy Stevenson worked an off-island prisoner transport assignment on September 11, 2007 starting at 3:15 a.m., therefore overlapping with their scheduled first watch assignment.4 (Def.'s CSF ¶ 21.) On September 11, 2007, Lt. Cummings learned that Plaintiff and Deputy Stevenson had received authorization from Sgt. Kekua to leave their post assignments on first watch to handle the inter-island transport. (Lt. Cummings Decl. ¶ 12.) After discussing the issue with Sgt. Kekua, Lt. Cummings issued a memorandum, dated September 11, 2007, to all watch supervisors mandating that all deputies on the first watch not leave their post or assignments to participate in any inter-island transport earlier than 5:00 a.m. (Mot. Ex. J.) The stated purpose of the new rule was to ensure proper staffing and minimize liability issues that may occur as a result of an unforeseen incident. (Id.) According to Lt. Cummings, the September 11, 2007 Memorandum has never been rescinded.5 (Lt. Cummings Decl. ¶ 12.)
On October 5, 2007, Plaintiff was assigned to the third watch (1:30 p.m. to 10:00 p.m.). (SAC ¶ 31.) On that same date, Plaintiff and Deputy Stevenson worked a pre-shift off-island prisoner transport assignment with a start time of 5:40 a.m. (Id.; Mot. Ex. K.) Despite the fact that the transport overlapped with Plaintiff's duties by 20 minutes, Sgt. Kekua once again authorized the assignment and instructed Plaintiff to report to work at 2:00 p.m. (Mot. Ex. A at 215-17.)
Six days later, on October 11, 2007, Lt. Cummings issued another memorandum to all deputies in his detail regarding interisland transports. (Mot. Ex. L.) The memorandum prohibited deputies from working inter-island transports where the transports would conflict with their regularly scheduled duty hours. (Id.) Once again, Lt. Cummings claims the memorandum has never been rescinded. (Lt. Cummings Decl. ¶ 15.)
Several months prior, on August 13, 2007, Plaintiff was scheduled to work special duty at the State Tax Building between the hours of 6:45 a.m. to 4:45 p.m. (Id. ¶ 16.) Special duty is voluntary and provides supplemental income for deputies who request such assignments. (Mot. Ex. A at 151.) Because Plaintiff did not work his entire shift and did not find a replacement, Lt. Cummings issued a memorandum to Plaintiff regarding his actions and explaining the proper notification procedure. (Mot. Ex. M.)
In response to Lt. Cummings' memorandum, Plaintiff wrote a letter to Sheriff Lum, dated October 21, 2007, regarding his lack of knowledge of special duty policies and procedures. (Mot. Ex. O.) Based on Plaintiff's admission that he was not informed of the special duty policies and procedures, PSD made a decision to require all deputies seeking special duty assignments to sign an acknowledgment form. (Lt. Nagamine Decl. ¶ 15.) A memorandum, dated October 21, 2007, was issued to all deputies by Special Duty Coordinator Alan Leung requiring deputies to sign the acknowledgment form. (Mot. Ex. O.) The memorandum further explained that any deputy who failed to turn in the acknowledgment form would not be allowed to work special duty assignments until they complete the form. (Id.) The deadline to turn in the forms was set for October 30, 2007. (Id.)
Plaintiff was scheduled to work special duty at the State Tax Building on October 30, 2007. (Lt. Nagamine Decl. ¶ 17.) Plaintiff's assignment was cancelled, however, despite the fact that he signed the acknowledgment form on October 30, 2007. (Oppo....
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