Campbell v. Department of Human Services

Filing 84

ORDER Granting Defendant Department Of Human Services, State of Hawaii's Motion For Partial Judgment On The Pleadings re 67 . "The Eleventh Amendment bars Campbells state law claims against DHS. This court therefore grants DHS's motion for partial judgment on the pleadings. Campbell's state law claims against DHS are dismissed with prejudice, and this matter will proceed on his remaining Title VII claim." Signed by JUDGE SUSAN OKI MOLLWAY on 10/2/2018. (cib, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
CHRISTOPHER CAMPBELL,

)
)
Plaintiff,
)
)
vs.
)
DEPARTMENT OF HUMAN SERVICES, )
)
STATE OF HAWAII; DOE PERSONS
)
1-10; DOE PARTNERSHIPS 1-10;
)
DOE CORPORATIONS 1-10; ROE
)
“NON-PROFIT” CORPORATIONS 1)
10; AND ROE GOVERNMENTAL
)
ENTITIES 1-10,
)
)
Defendants.
_____________________________ )

Civ. No. 17-00138 SOM-KJM
ORDER GRANTING DEFENDANT
DEPARTMENT OF HUMAN SERVICES,
STATE OF HAWAII’S MOTION FOR
PARTIAL JUDGMENT ON THE
PLEADINGS

ORDER GRANTING DEFENDANT DEPARTMENT OF HUMAN SERVICES, STATE OF
HAWAII’S MOTION FOR PARTIAL JUDGMENT ON THE PLEADINGS
I.

INTRODUCTION.
Plaintiff Christopher Campbell has asserted employment

discrimination, hostile work environment, and whistleblower
claims against Defendant Department of Human Services, State of
Hawaii (“DHS”), and unnamed Doe/Roe defendants.

DHS moves for

partial judgment on the pleadings, arguing that it has Eleventh
Amendment immunity with respect to all state law claims and that
the whistleblower claim, brought under state law, and the
hostile work environment claim, to the extent based on a
violation of state law, should therefore be dismissed with

prejudice. 1

Determining that the Eleventh Amendment bars

Campbell’s state law claims against DHS, this court grants DHS’s
motion and dismisses the state law claims with prejudice.
II.

BACKGROUND.
Campbell was employed by DHS as a Vocational

Rehabilitation Specialist in Hilo, Hawaii, starting in June
2008.

See ECF No. 1, PageID # 4.

In the Complaint in the

present case, filed on March 29, 2017, Campbell alleges that,
while employed by DHS, he was subjected to “a discriminatory,
hostile work environment” based on being African-American.
at 5.

Id.

He alleges that he was denied promotions, yelled at and

mocked by his supervisor, falsely accused of several acts such
as stealing from co-workers and threatening his supervisor, and
treated differently from co-workers who were not AfricanAmerican.

See id. at 5-10.

Campbell also alleges that DHS did

not thoroughly investigate his complaints of racial
discrimination and did not discipline co-workers who used racial

1

Campbell’s employment discrimination claim, asserted in Count
I, appears to be premised on federal law only. Although in
Count III Campbell does refer to Haw. Rev. Stat. § 378-2, which
addresses employment discrimination under state law, Count III
appears to be a state whistleblower claim premised on Haw. Rev.
Stat. §§ 378-61 and 378-70, rather than a direct employment
discrimination claim brought under section 378-2 and seeking
relief under Haw. Rev. Stat. § 378-13. The present order
therefore does not address any section 378-2 claim. However,
even if Campbell’s Complaint could be read as pleading a section
378-2 claim, that claim would be barred under the same reasoning
articulated here with respect to sections 378-61 and 378-70.
2

slurs and other offensive language.

See id. at 8-10.

He

alleges that, when he reported this discriminatory treatment to
his Hawaii State Senator and the Hawaii State Ethics Commission,
DHS retaliated against Campbell and suspended him without pay
for pretextual reasons.

See id. at 10-14.

Campbell asserts three claims against DHS: (1) racial
discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e-2000e-17; (2) a hostile work
environment; and (3) retaliation against him as a whistleblower,
in violation of Chapter 378 of Hawaii Revised Statutes.
at 15-21.

See id.

Campbell does not specify whether the hostile work

environment claim is brought under Title VII or state law; the
court assumes for purposes of this order that Campbell is
proceeding under both.

He seeks “general and special damages,

including but not limited to reinstatement, an award of back
pay, fringe benefits, senior and overtime and front pay,” as
well as compensatory damages, costs and attorney’s fees, and
pre- and post-judgment interest.

Id. at 21.

DHS now moves for partial judgment on the pleadings.
ECF Nos. 17, 67.

Trial is currently set for July 9, 2019.

See

ECF No. 63.
III.

STANDARD OF REVIEW.
Rule 12(c) of the Federal Rules of Civil Procedure

states, “After the pleadings are closed--but early enough not to
3

delay trial--a party may move for judgment on the pleadings.”
The standard governing a Rule 12(c) motion for judgment on the
pleadings is “functionally identical” to that governing a motion
to dismiss under Rule 12(b)(6) of the Federal Rules of Civil
Procedure.

United States ex rel. Caffaso v. Gen. Dynamics C4

Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011); accord Pit
River Tribe v. Bureau of Land Mgmt., 793 F.3d 1147, 1155 (9th
Cir. 2015) (“Analysis under Rule 12(c) is ‘substantially
identical’ to analysis under Rule 12(b)(6) because, under both
rules, a court must determine whether the facts alleged in the
complaint, taken as true, entitle the plaintiff to a legal
remedy.”).
With a Rule 12(c) motion, the allegations of the
nonmoving party are accepted as true, while the allegations of
the moving party that have been denied are assumed to be false.
See Hal Roach Studios v. Richard Feiner & Co., Inc., 896 F.2d
1542, 1550 (9th Cir. 1989).

A court evaluating a Rule 12(c)

motion must construe factual allegations in a complaint in the
light most favorable to the nonmoving party.
Pickard, 581 F.3d 922, 925 (9th Cir. 2009).

Fleming v.
“Judgment on the

pleadings is properly granted when, accepting all factual
allegations as true, there is no material fact in dispute, and
the moving party is entitled to judgment as a matter of law.”
Chavez v. United States, 683 F.3d 1102, 1108 (9th Cir. 2012)
4

(quotation marks and citation omitted); accord Jensen Family
Farms, Inc. v. Monterey Bay Unified Air Pollution Control Dist.,
644 F.3d 934, 937 n.1 (9th Cir. 2011).
Generally, when matters outside the pleadings are
considered, a motion for judgment on the pleadings must be
considered as one for summary judgment under Rule 56 of the
Federal Rules of Civil Procedure.

See Fed. R. Civ. P. 12(d).

However, when adjudicating a Rule 12(c) motion, a court may
consider matters subject to judicial notice without converting
the motion to one for summary judgment.

See Heliotrope Gen.,

Inc. v. Ford Motor Co., 189 F.3d 971, 981 n.18 (9th Cir. 1999)
(“When considering a motion for judgment on the pleadings, this
court may consider facts that are contained in materials of
which the court may take judicial notice.” (quotation marks
omitted)).
IV.

ANALYSIS.
A.

Under the Eleventh Amendment, DHS Is Immune from
Suit for Monetary Damages and Other Retrospective
Relief Unless an Exception Applies.

In its motion for partial judgment on the pleadings,
DHS argues that the Eleventh Amendment bars Campbell’s state law
claims.

See ECF No. 67-3, PageID #s 291-92.

The Eleventh

Amendment provides that “[t]he Judicial power of the United
States shall not be construed to extend to any suit in law or
equity, commenced or prosecuted against one of the United States
5

by Citizens of another State, or by Citizens or Subjects of any
Foreign State.”

U.S. Const. amend. XI.

Under the Eleventh

Amendment, a state is immune from lawsuits for monetary damages
or other retrospective relief brought in federal court by its
own citizens or citizens of other states.

Frew ex rel. Frew v.

Hawkins, 540 U.S. 431, 437 (2004); Papasan v. Allain, 478 U.S.
265, 276 (1986); Pennhurst State Sch. & Hosp. v. Halderman, 465
U.S. 89, 100, 105-06 (1984).

Federal court actions against

agencies or instrumentalities of a state are also barred by the
Eleventh Amendment.

Sato v. Orange Cty. Dep't of Educ., 861

F.3d 923, 928 (9th Cir. 2017); Blount v. Sacramento Cty.
Superior Court, 559 F. App’x 623, 623 (9th Cir. 2014).

Eleventh

Amendment immunity does not apply if Congress exercises its
power under the Fourteenth Amendment to override Eleventh
Amendment immunity, or if a state unequivocally waives sovereign
immunity or consents to federal suit.

See Will v. Mich. Dep’t

of State Police, 491 U.S. 58, 66-68 (1989).
DHS, as an agency of the state, is immune from claims
for monetary damages and other retrospective relief unless an
exception to Eleventh Amendment immunity applies.

The Supreme

Court has made clear that Congress abrogated the Eleventh
Amendment with respect to Title VII claims.

See Fitzpatrick v.

Bitzer, 427 U.S. 445, 455-56 (1976); accord Cerrato v. S.F.
Cmty. Coll. Dist., 26 F.3d 968, 976 (9th Cir. 1994).
6

DHS is

therefore not immune with respect to Campbell’s Title VII racial
discrimination claim and his hostile work environment claim, to
the extent that claim is brought under Title VII.
Thus, the question for this court is whether an
exception to Eleventh Amendment immunity applies to the
remaining non-Title VII claims--i.e., the whistleblower claim
and the hostile work environment claim, to the extent that claim
is brought under state law.

As discussed below, Campbell

advances four arguments as to why Eleventh Amendment immunity
does not apply to these claims.

Finding none of these arguments

persuasive, this court grants DHS’s motion.
B.

Campbell’s State Law Claims Seek Monetary
Damages, Which Are Barred by the Eleventh
Amendment.

As mentioned above, under the Eleventh Amendment, a
state is immune from lawsuits for monetary damages or other
retrospective relief brought in federal court by its own
citizens.

The Eleventh Amendment does not apply to claims for

prospective injunctive relief.

See Edelman v. Jordan, 415 U.S.

651, 664-67 (1974) (holding that the Eleventh Amendment did not
bar an injunction requiring Illinois to comply with federal
standards for processing welfare applications in the future).
Campbell appears to argue that the Eleventh Amendment
does not apply because he seeks prospective injunctive relief.
See ECF No. 77, PageID # 360.

However, his complaint states
7

that he is seeking various types of monetary damages: “general
and special damages, including but not limited to reinstatement,
an award of back pay, fringe benefits, senior and overtime and
front pay,” as well as compensatory damages, costs and
attorney’s fees, and pre- and post-judgment interest.

ECF No.

1, PageID # 21.
To the extent Campbell is arguing that “reinstatement”
constitutes prospective injunctive relief, this argument is
unavailing.

“In discerning whether the relief sought is

prospective or retroactive for purposes of the Eleventh
Amendment bar, we must analyze the substance, not the form, of
the relief.”

Native Vill. Of Noatak v. Blatchford, 38 F.3d

1505, 1512 (9th Cir. 1994) (“Although Noatak has framed its
request for payment of the $611 as prospective injunctive
relief, in substance, Noatak seeks retroactive monetary
relief.”).

Campbell’s Complaint prays for general and special

damages “including . . . reinstatement.”
(emphasis added).

ECF No. 1, PageID # 21

This suggests that he considers such

reinstatement to be a form of damages, not injunctive relief.
Moreover, the absence of any allegation in Campbell’s Complaint
that he was actually or constructively fired or demoted by DHS
raises the question of whether “reinstatement” is even
applicable.

See ECF No. 1.

This court cannot even tell from

the record whether Campbell has anything to be “reinstated” to.
8

Paragraph 70 of the Complaint is the last paragraph in the
section of the Complaint stating background facts, and it
indicates that Campbell’s work credit card was returned to him
in August 2016.

See id., PageID # 14.

In opposing the present

motion, Campbell submits a letter dated July 20, 2018, referring
to his request for on-the-job medical accommodations, again
suggesting his continued employment as a Vocational
Rehabilitation Specialist III.

See ECF No. 77-5.

Because Campbell’s Complaint is most appropriately
understood as seeking monetary damages against DHS, Eleventh
Amendment immunity applies.
C.

In Enacting Section 378-70, the State of Hawaii
Did Not Consent to Federal Suit Under Chapter
378.

Eleventh Amendment immunity does not apply when a
state unequivocally consents to suit.
99.

Pennhurst, 465 U.S. at

Campbell argues that “[t]he Hawaii State Legislature

specifically intended to consent to federal jurisdiction in
[w]histleblower cases involving public employees” when it
enacted section 378-70 in 2011.

See ECF No. 77, PageID #s 355-

59.
Section 378-70 provides in full:
(a) In addition to any other protections
under this part, a public employer shall not
discharge, threaten, or otherwise
discriminate against a public employee
regarding the public employee’s
9

compensation, terms, conditions, location,
or privileges of employment because the
public employee, or a person acting on
behalf of the public employee, reports or is
about to report to the public employer or a
public body, verbally or in writing:
(1) Any violation or suspected
violation of a federal, state, or
county law, rule, ordinance, or
regulation; or
(2) Any violation or suspected
violation of a contract executed by the
State, a political subdivision of the
State, or the United States,
unless the employee knows that the report is
false.
(b) Every public employer shall post notices
pertaining to the application of sections
378-70 and 396-8(e), as shall be prescribed
by the department of labor and industrial
relations, in conspicuous places in every
workplace.
Nothing in the plain language of section 378-70, or elsewhere in
the State of Hawaii’s Whistleblowers’ Protection Act,
demonstrates the State’s express consent to federal suit.

See

Haw. Rev. Stat. §§ 378-61 to 378-70.
Campbell focuses on the language protecting public
employees who report violations of “a federal . . . law, rule, .
. . or regulation.”

ECF No. 77, PageID #s 356-57.

However, the

mere mention of federal law is not equivalent to express consent
to suit in federal court.

See Demshki v. Monteith, 255 F.3d

986, 989 (9th Cir. 2001) (“Statutes or constitutional provisions

10

expressing a general waiver of sovereign immunity, without
expressly subjecting the state to suit in federal court, do not
waive Eleventh Amendment immunity.”).

Additionally, the

Whisteblowers’ Protection Act specifically provides that an
aggrieved public employee may bring a civil action in “circuit
court for the circuit where the alleged violation occurred,
where the complainant resides, or where the person against whom
the civil complaint is filed resides or has a principal place of
business”--not in federal court.

Haw. Rev. Stat. § 378-63(b).

Nor does the legislative history of section 378-70
show that the State of Hawaii intended to consent to federal
suit for whistleblower claims.

Both parties attached

legislative history materials to their briefing on this motion.
See ECF Nos. 77-3, 77-4, 77-5, 79-2, 79-3, 79-4.

These

materials indicate that the state legislature intended to
provide additional protection to public employees by expanding
(1) the types of employees who could pursue whistleblower
claims, (2) the types of reports that would constitute
whistleblowing, and (3) the responsibilities of the State of
Hawaii’s Department of Labor and Industrial Relations with
respect to whistleblowing.

See, e.g., ECF No. 77-4, PageID

# 382 (“The purpose and intent of this measure is to: (1)
Provide additional protection to public employees who report
violations of the law in state or local government or of
11

government contracts; and (2) Expand the Department of Labor and
Industrial Relations’ responsibilities regarding
whistleblowers.”).

Nowhere does the legislature suggest that

such whistleblower claims were intended to be litigated in
federal court.
Campbell notes that section 378-70 was passed after a
federal court decision in Bolla v. Univ. of Hawaii, Civ. No. 0900165 SPK-LEK, 2009 WL 10676971 (D. Haw. Oct. 8, 2009).
No. 77, PageID #s 357-58.

See ECF

In Bolla, the plaintiff argued that

the State of Hawaii had waived sovereign immunity with respect
to a claim against the University of Hawaii brought under the
Whistleblowers’ Protection Act because suits against the
University of Hawaii were allowed under Haw. Rev. Stat. § 304A108.

See 2009 WL 10676971, at *4.

The court held that any

waiver “must be unequivocal and express” and that the statute
“did not expressly give consent to be sued in federal court.”
Id. (citing Actmedia, Inc. v. Stroh, 830 F.2d 957, 963 (9th Cir.
1986), overruled on other grounds by Retail Dig. Network, LLC v.
Appelsmith, 810 F.3d 638, 650 (9th Cir. 2016)).

Campbell argues

that, because Bolla did not find a waiver of Eleventh Amendment
immunity, “[i]t would lead to an absurd result[] to suggest that
the Legislature adopted a second, identical statute with the
only difference being the inclusion of ‘public employees.’”
No. 77, PageID # 358.

This court fails to see any absurdity.

ECF

12

Section 378-70 was not identical to prior whistleblower
statutes; it expanded whistleblower protections to public
employees by providing greater avenues to state court.

The

legislative history does not mention Bolla, and no court has
held that section 378-70 superseded the holding in Bolla.
Waiver of Eleventh Amendment immunity requires that
the state make a “clear declaration that it intends to submit
itself to [federal] jurisdiction.”

Coll. Sav. Bank v. Fla.

Prepaid Postsecondary Educ. Expense Bd., 527 U.S. 666, 675
(1999) (internal quotation marks and citation omitted).

The

enactment of section 378-70 was not a clear declaration by the
State of Hawaii of consent to federal suit.
D.

DHS Has Not Waived Eleventh Amendment Immunity in
Litigating This Case.

Campbell argues that DHS expressly waived Eleventh
Amendment immunity when it “voluntarily appeared in this matter,
submitted to the court’s jurisdiction, conducted discovery,
[participated in] depositions and stipulated to continuing the
trial in this matter, twice.”

ECF No. 77, PageID # 362.

Campbell is correct that a delay in raising Eleventh
Amendment immunity as an affirmative defense may be deemed a
waiver of that defense.

“If a state or state agency elects to

defend on the merits in federal court, it should be held to that
choice the same as any other litigant.”

13

Hill v. Blind Indus. &

Servs. of Md., 179 F.3d 754, 758 (9th Cir. 1999).

“To permit a

defendant to litigate the case on the merits, and then belatedly
claim Eleventh Amendment immunity to avoid an adverse result,
would work a virtual fraud on the federal court and opposing
litigants.”

Id. (internal quotation marks and citation omitted)

(finding Eleventh Amendment immunity waived when the defendant
“wait[ed] until the first day of trial before objecting to the
federal court’s jurisdiction on Eleventh Amendment grounds”).
Thus, Eleventh Amendment immunity “must be raised ‘early in the
proceedings’ to provide ‘fair warning’ to the plaintiff.”
Demshki, 255 F.3d at 989 (quoting Hill, 179 F.3d at 761).
On May 26, 2017, DHS filed its Answer to Campbell’s
Complaint, raising the defense that “the claims are barred by
the State’s Eleventh Amendment immunity and sovereign immunity.”
ECF No. 17, PageID # 77.

The Ninth Circuit has previously held

that a plaintiff is “timely provided . . . with fair notice” if
a defendant has “rais[ed] Eleventh Amendment immunity as an
affirmative defense in its answer.”

Id.

Further, this case is

still in its early stages, given the parties’ stipulations to
continue trial and to extend pretrial filing deadlines.
Nos. 32, 61.

See ECF

Although discovery has begun, Campbell has not

identified any DHS conduct that is inconsistent with its
position that Campbell’s state law claims are barred by the
Eleventh Amendment.
14

Having provided Campbell with timely notice of its
intent to raise Eleventh Amendment immunity as a defense, DHS
cannot be said to have waived sovereign immunity.
E.

Ancillary Jurisdiction Does Not Override Eleventh
Amendment Immunity.

Finally, Campbell argues that, even if Eleventh
Amendment immunity applies, this court has ancillary
jurisdiction over the state law claims because these claims “are
substantially or closely related to and from [his] original
discrimination claim.”

See ECF No. 77, PageID # 359.

He argues

that “[t]he doctrine of ancillary jurisdiction[] recognizes
federal courts’ jurisdiction over some matters (otherwise beyond
their competence that are incidental to other matters properly
before them” and that “[t]he core of this proceeding is [DHS’s]
violation of [Campbell’s] civil rights.”

Id. (citing Kokkonen

v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 378–79 (1994)).
Campbell incorrectly invokes ancillary jurisdiction.
Ancillary jurisdiction cannot override Eleventh Amendment
immunity.

See Oneida Cty., NY v. Oneida Indian Nation of New

York State, 470 U.S. 226, 251 (1985) (“Neither pendent
jurisdiction nor any other basis of jurisdiction may override
the Eleventh Amendment.” (quoting Pennhurst, 465 U.S. at 121)).
“The Eleventh Amendment forecloses . . . the application of
normal principles of ancillary and pendent jurisdiction where

15

claims are pressed against the State,” and the primary
jurisdictional question is whether the Eleventh Amendment
applies.

See id.

If it does, “whether the State has consented

to waive its constitutional immunity is the critical factor in
whether the federal courts properly exercise[] ancillary
jurisdiction.”

Id.

As discussed above, there is no indication

that DHS has waived its Eleventh Amendment immunity.

This court

therefore does not engage in any further analysis of ancillary
jurisdiction.
Kokkonen does not support Campbell’s argument.

In

Kokkonen, the Supreme Court stated, “Generally speaking, we have
asserted ancillary jurisdiction (in the very broad sense in
which that term is sometimes used) for two separate, though
sometimes related, purposes: (1) to permit disposition by a
single court of claims that are, in varying respects and
degrees, factually interdependent; and (2) to enable a court to
function successfully, that is, to manage its proceedings,
vindicate its authority, and effectuate its decrees.”
at 379-80 (internal citations omitted).

511 U.S.

The Court in Kokkonen

did not hold that ancillary jurisdiction limits Eleventh
Amendment immunity and, in fact, emphasized the “concept of
limited federal jurisdiction” to hold that ancillary
jurisdiction did not apply to the state law claims at issue.
See id. at 381.
16

This court does not have ancillary jurisdiction over
any state law claim that is barred by the Eleventh Amendment.
V.

CONCLUSION.
The Eleventh Amendment bars Campbell’s state law

claims against DHS.

This court therefore grants DHS’s motion

for partial judgment on the pleadings.

Campbell’s state law

claims against DHS are dismissed with prejudice, and this matter
will proceed on his remaining Title VII claim.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, October 2, 2018.

/s/ Susan Oki Mollway
Susan Oki Mollway
United States District Judge

Christopher Campbell
Hawaii, et al., Civ.
DEFENDANT DEPARTMENT
FOR PARTIAL JUDGMENT

v. Department of Human Services, State of
No. 17-00138 SOM-KJM; ORDER GRANTING
OF HUMAN SERVICES, STATE OF HAWAII’S MOTION
ON THE PLEADINGS.

17