*1 58 P.3d 1196 GONSALVES,

Leland Plaintift-

Appellee/Cross-Appellant,

NISSAN MOTOR CORPORATION IN HA

WAI'I, LTD.; Sales, and Infiniti Motor

Inc., Defendant-Appellants/Cross-Appel

lees, 1-10; 1-10;

John Does Jane Does Doe Cor

porations 2-10, 1-10; Partnerships Doe 1-10,

or Other Entities Defendants.

No. 23505.

Supreme Court of Hawai'i.

Nov. 2002.

As Dec. Amended

Reconsideration Denied Dec. 2002.*

* Justice Acoba dissented.

153 *5 Tsukiyama and M. Yamashi-

Paul T. Reid Counsel, ro, Deputies Corporation briefs, City County of for Amicus Curiae Honolulu. Wang, Hipp B. O.

Kenneth Sarah Honolulu, Hipp Pepper, on of Marr Jones & briefs, for Amicus Hawaii Em- Curiae ployers Council. Jossem, Honolulu, Lynne T. H.

Jared Toyofuku, Toyofuku, on of Jossem & briefs, Society of Amicus Human Curiae Management. Resource Hilo, Corpora- Hong, Assistant Ted H.S. Counsel, briefs, Amicus tion on the Curi- County ae of Hawaii. Corporation Kobayashi, Deputy

Blaine J. Counsel, briefs, for Amicus Curiae County of Maui. Honolulu, Leavitt, Jr., T. on the

James briefs, Lawyers for Amicus Curiae Consumer *6 of Hawaii. Viola,

David F. Simons and Matthew J. Viola, Honolulu, of Simons Wilson briefs, Chapter Hawaii for Amicus Curiae Employment Lawyers the National Associa- tion. Ishihara, Honolulu, briefs,

John on the for Rights Amicus Curiae Hawaii Civil Commis- sion. Sunderland, Honolulu,

Magali V. on the bi'iefs, Amicus Hawaii Women for Curiae Lawyers. Barbee-Wooten, Honolulu,

Daphne on the briefs, for Amicus United Curiae States Equal Employment Opportunity Commis- sion. (Terry E.

Anna M. Elento-Sneed Thoma- Honolulu, MOON, C.J., NAKAYAMA, son, Grimes, LEVINSON, and Joanne L. briefs), LLP, RAMIL, JJ., ACOBA, J., Ball for and her on the of Carlsmith AND Defendants-Appellants/Cross-Appellees Nis- Dissenting in Concurring in Part and Part. Hawaii, Corporation in Ltd. and san Motor Sales, Motor Inc.

Infiniti RAMIL, J. Opinion the Court Hiatt, Kamuela, Plaintiff- Jerry M. for I.

Appellee/Cross-Appellant Gonsalves. INTRODUCTION Leland appeal,1Defendants-Appellants/Cross- On dismissal Gonsalves’s claim for defama Appellees Corporation publication requirement Nissan in Ha tion because the Motor waii, Sales, compelled defamation cannot and be based on Ltd. Infiniti Motor Inc.2 (4) self-publication; “Nissan”) grant the circuit court’s (collectively, argue that circuit (5) Gonsalves; ing against of sanctions and by denying court erred Nissan’s motion for the circuit court’s mo denial Gonsalves’s judgment, summary judg two motions for tion points for sanctions. All other of error law,3 ment as a matter of mo renewed brought Gonsalves and Nissan need not judgment tion for as a matter of law4 be be addressed. cause Plaintiff-Appellee/Cross-Appellant (“Gonsalves”) Leland Gonsalves unable discrimination, implied maintain his sex con II. BACKGROUND

tract, promissory estoppel For claims. February working On herein, after the reasons discussed we remand for about ten months at Nissan aas service entry judgment of a in favor of Nissan with department manager, fired. respect discrimination, implied to the sex 6,1998, On November a com- Gonsalves filed contract, promissory estoppel claims. Nissan, (1) plaint alleging sex dis- (1) Furthermore, we affirm: the circuit (2) crimination, (3) defamation, promissory court’s parte denial Gonsalves’s ex re (4) estoppel, negligent intentional and quest entry of default of Nissan as infliction emotional distress.5 supplemental Gonsalves’s first amended complaint because Nissan “defended” itself September 28, On Nissan filed a purposes of Hawaii Rules of Pro Civil for summary judgment motion on all claims. (HRCP) 55; (2) cedure Rule the circuit On November court the circuit de- court’s denial Gonsalves’s motion for nied the motion. On November supple leave to file second amended and sponte ruling court sua reconsidered its complaint mental because Gonsalves’s claims granted judgment summary favor Nis- sufficiently were articulated in first negligent san on the infliction of emotional complaint; amended the circuit claim. court’s distress bond, 1.Defendants-Appellants/Cross-Appellees supersedeas Nissan the amount of filed March Hawaii, Corporation 2000; Motor Ltd. 2000; and Infiniti judgment, filed on March *7 Sales, (collectively, "Nissan”) appeal Motor Inc. (8) denying and sanctions, order Gonsalves’s motion for (1) judgment, from the first circuit court's: filed 3,May filed 2000. on 30, 2000; (2) denying on March order Nissan's presided The Honorable Gail C. Nakatani over trial, judgment May motion for after filed on part granting denying part 2000; (3) the order in and in denying and order Nissan’s alternative remittitur, protection May Nissan’s motion for tions, and sanc- new order motion for trial or filed on Plaintiff-Appellee/Cross-Appellant filed 2000. Le- on December 1999. The Honor- ("Gonsalves”) cross-appeals land Gonsalves from presided able Victoria S. Marks all other over granting part the first circuit court's: and order in appealed items from and before this court. denying part protec- in Nissan’s motion for sanctions, and tive order filed on December Hawaii, Corporation Motor in Ltd. is Nissan 2. 1999; (2) part denying granting order in and in Sales, parent company Infiniti Inc. Motor part Nissan’s motion in limine exclude irrele- reference, evidence, testimony relating vant and Although 3. Nissan "Motion entitled motion Torres, 27, 1999; to Neldine filed December Verdict,” for Directed Hawaii Rules of Civil granting order motion to strike Anna Nissan’s (HRCP) Procedure Rule 50 refers to "motions for witness, January M. Elento-Sneed as a filed on judgment as a matter of law.” 13, 2000; (4) granting part denying order in and part judgment in Nissan’s second as a motion law, 19, 2000; (5) January Although matter 4. filed on Nissan entitled its motion "Motion Trial,” denying Judgment order Gonsalves’s motion for leave to After HRCP Rule 50 refers supplemental file second amended and com- judgment to "renewed motions for a matter of as thereon, hearing plaint and for oral filed law.” 21, 2000; (6) fact, January findings of conclu- law, granting part sions of and order in and trial, during point At some Gonsalves add- part attorney’s denying in Gonsalves’s motion for implied ed his contract claim. See n. 16. infra fees, costs, prejudgment and set interest and to position, will filed his maintain her as well “[Torres] October Gonsalves On as, complaint. supplemental [Gonsalves].” first amended and had an answer Nissan filed to Gonsalves’s 15, 1998, February wrote On Gonsalves 30,1998, but original complaint on November regarding Nissan the “hos- memorandum to first file an to Gonsalves’s did not answer work environment” created Torres. tile complaint. and On supplemental amended work that “her attitude towards He testified requested an Gonsalves October just that she “was insubordi- was zero” and sup- entry of default to his amended and as performing that she nate duties complaint. court de- plemental The circuit supposed Although to.” re- Suehisa the motion. nied memorandum, he did not ceived Gonsalves’s that investigate claim. Suehisa stated he trial, At Neldine Torres testified Gon- “legal duty” think because did not he had her,6 made sexual comments to blew salves complaints “performance were related.” neck, poked sides her bra- on her her near Moreover, already he had stated he line, between her knee touched her supervisory duties moved over Torres testimony thigh. Kua- There was that Kevin Morrison, presi- vice Gonsalves Roderick replaced lapai, who as a service Gonsalves general manager of Infiniti Motor dent manager, inappropriate comments Sales, Inc. Torres, report did not him Torres addition, a male em- sexual harassment.7 investigate Linda Suehisa hired Kreis ployee passed lingerie had out calendars allegations. that she Torres’s Kreis testified objection. employees, with no other ten prepared interviewed and statements for employees, including Torres and Gonsalves. that, January in Gonsalves testified witnesses, interviewing pre- After Kreis Suehisa, Wayne president, vice administra- pared report summarizing the results tor, Corpora- of Nissan Motor treasurer investigation. that Gon- her She concluded Ltd., Hawai'i, him of Tor- tion informed writing ... at salves’s “behavior time allegations against res’s sexual harassment report already could construed complaints. him. Su- Gonsalves denied creating a hostile environment” and recom- telling admitted that he ehisa “be about mended counseled investiga- get “thorough and would fair unacceptable disciplined behavior tion,” lawyer,” to get he did not “need no manner to assure there’s reoccurrence.” planning on and that [Nissan was] “because had not all of the Because Kreis received continuing investigation point at that do statements, signed report an she termed this time, planning wasn’t on termi- [Suehisa] report investigation.” “interim nating testified [Gonsalves].” Gonsalves him apprised also that he “didn’t Suehisa in- February On Kreis sent the worry losing job.” [his] about *8 report responded terim to Suehisa. Suehisa “major report disappointment”: to the with January On Suehisa drafted know, detailing Torres’s inter-office memorandum manager You had a here we I day, against claims The Su- Gonsalves. next guess performing game plan, was our like composed mentioned, another memo- game plan ehisa inter-office I had who had a business, including executing randum of the grow Gonsalves’s denial he was on 28, 1998, January right On going accusations. Suehisa that. He to be in the seemed Aid, know, operationally. you in an as stated inter-office memorandum direction you," you “I like at "How much make on Street last 6. The comments included to look did Hotel my honey,” getting night?" "You’re mind Kualapai "[I wouldn’t] Tor- testified that he once told caught [my] pants depending who res, down on desk, leg who had on her that she should one with,” good, you me it was and "You smell make [becausej legs get- "put her down the flies were hungry.’’ dizzy." ting cross-examination, Kua- 7. On Torres stated that her, counting money, lapai asked while she was 28, 1999, morning,

I had said earlier we were On December the close of to, well, case, trying hoping Iwhat was for was Gonsalves’s Gonsalves moved leave that we could come to a different resolu- supplemental a second and file amended you paragraph, tion. But as read each complaint. The comrt denied mo- Gonsalves’s you out that allegation came find after tion. allegation being corroborated day, judg- On the same Nissan moved only one witness but a number of wit- ment as matter of law. The court denied nesses, and that those also witnesses were 10, 2000, January the motion. On all after saw, bringing they up things they n heard, introduced, again evidence had been Nissan very disappointing. it was It was judgment moved for as a matter of law. The d[is]heartening, actually. granted court respect the motion with February On Suehisa decided to portion “that of [Gonsalves’s] claim of defa-

terminate Gonsalves. Given the al- evidence self-publica- mation which was based on the witnesses, ready adduced from various Su- tion of the for [Gonsalves’s] reasons termi- ehisa determined that did he not need the nation,” and denied the remainder of the report. final At the time Suehisa’s deci- motion. sion, affidavits, including four of the one from

Torres, proposed sepa- the inclusion of a yet signed. had not been One of the negligence special signed rate count actually later-received affidavits was verdict rejected pro- form. court supportive The of Gonsalves. posal. February 27, On Nissan terminated explained Gonsalves. Suehisa that he waited January On the court sent the 27,1998

until February because he wanted jury. January case to the On receipt any outstanding see whether of the jury special verdict in returned favor “substantially ehange[ statements would ]” discrimination, promissory Gonsalves on the already the facts established. Suehisa testi- claims, implied estoppel, and contract required fied that he he to “do a believed was favor of Nissan and inten- defamation job” in investigating alleged fair miscon- tional infliction emotional distress claims. addition, duct. that Nis- Suehisa stated following The circuit court awarded the explained san’s termination all letter $2,918,249.59: grand for a amounts total of reasons Gonsalves’s termination. The termination letter articulated that “[biased Damages Special $1,090,597.00 allegations Torres’[s] Ms. and the corrob- (for discrimination, es- promissory claims) contract toppel, implied witnesses, orating [Nissan statements had] concluded that conduct to- [Gonsalves’s] Damages Punitive 875,000.00 $ claim) (for discrimination ward Ms. Torres could be construed as sexu- disciplinary al ac- harassment warrants Damages General 140,000.00 $ expounded tion.” letter claim) further (for promissory estoppel Gonsalves had retaliated Torres Costs contrary employees, other to Nissan’s (for es- discrimination, 76,346.93 promissory $ claims) contract implied toppel, policy. harassment discrimination On cross-examination, admitted that Pees Attorney’s *9 (maximum copy he a had received of Nissan’s Policies under 708,649.80 awarded diserimi- $ claim) nation Manual. Guidelines 32,655.86 Tax on Fees and Costs $ applied for

Gonsalves testified that he 5,000.00 Less sanction forty fifty jobs discovery being terminat- about to after $ awarded Nissan, by rejected but was ed each applications, required one. he was to On the 7, 2000,

explain April mo- for his On Nissan renewed its the reasons termination and, law judgment Nissan. tion for as matter of 158 alternative, form are con terrogatories on the verdict for new trial or remittitur.

the v. Knodle[ as a whole. See Waik sidered were denied. Both Hotel, Inc.], Gateway 69 Haw. iki 2000, 8, of Nissan filed notice June On 377[376],] 383-84, [377,] 742 P.2d 382-83 2000, 21, filed appeal. On June (1987) (“[T]he judge explain should the [ ] cross-appeal. notice of case, point law the out the of essentials other, proved on or the be one side particu bring into view the relation III. OF REVIEW STANDARD particular lar to the is adduced evidence Judgment A. done in involved. All of this must be sues Default jury such a the will manner 55, Rule which Application of HRCP (citations omitted) (internal misled.”) quo governs entry judgment, is re default omitted). tations and brackets for abuse of discretion. See viewed Stafford 292, 282, Lapez, 77 Hawai'i 884 Montalvo v. 665, Dickison, 46 Haw. P.2d 668 v. 374 (1994) (some 345, origi P.2d 355 brackets Bartolome, (1962); Citicorp Mortgage, v. Inc. nal). 827, (App. 844 94 Hawai'i 2000); Hilo, Trust Ltd. v. Rein First Co. of Judgment Summary D. Motion for 5, hardt, Haw.App. n. P.2d 3 593 655 circuit court’s [a] We review (1982). n. 894 5 summary judgment de novo un award applied der same standard the cir Complaint B. Motion to Amend cuit court. As we have often articulated: A denial of leave to amend under [s]ummary judgment appropriate if is 15(a) within the discretion HRCP Rule depositions, pleadings, answers trial See Federal Home Loan court. file, interrogatories, and admissions Co., Ins. 89 Mortg. Corp. Transamerica affidavits, any, together with the if show (1998). P.2d Hawai'i genuine that there is no issue as Thus, this court the circuit court’s reviews moving party fact that the material complaint of a motion to amend denial judgment as a matter of entitled of discretion standard. under abuse law. proof A fact is material if of that fact Special C. Form Verdict establishing or would have effect refuting of the essential elements one “complete has A trial court discre asserted cause action defense special general tion” whether utilize parties. and to decide the form of verdict must be viewed The evidence interrogatories as well sub verdict non-moving light most to the favorable jury “provided ques mitted that the words, view all party. other we must adequate jury are to obtain a tions asked drawn the evidence the inferences of all factual issues essential determination light in the most favorable to therefrom judgment.” In re Hawai‘i Federal As party opposing [the motion]. Cases, (9th bestos 871 F.2d Cir. Miller, 1989); Wright & A. accord C. 136-37, Au, Fujimoto v. Hawai'i § Practice and Procedure Federal (2001) (internal quotation P.3d 719-20 (1971) [hereinafter, Miller]; Wright & see omitted) (brackets in marks and citations 49(a). “com Although there is also HRCP original). type plete discretion” over the verdict and Re- form, Judgment E. as a Matter Law so questions themselves Judgment Motions as Mat- newed they constitute defective reversible ter Law Miller, supra, § Wright error. & *10 judgment ruling on a alleged special A trial court’s analyzing In errors forms, or motion for the in as matter law a renewed the instructions and verdict

159 judgment as a provided matter of law is de or reviewed otherwise these defend Herbert, appeal’ by and that fact is to novo. In re Estate 90 rules See Hawai'i otherwise, (1999). 443, 454, 39, affidavit the clerk enter shall 979 P.2d 50 added.) party’s (Emphasis default.” explained This court has we “[w]here F. Conclusions ofLaio patterned procedure after an have rule FRCP, equivalent interpreta rule within the This court reviews the circuit ‘by tions of rule the federal courts are court’s conclusions of de novo law under the persuasive highly deemed be in the rea right/wrong Support standard. Child En Farms, soning of this court.’” Kawamata Roe, 1, 11, Agency v. 96 Hawai'i 25 forcement Products, 214, Agri Inc. v. United 86 Hawai'i (2001). 60, P.3d 70 this ... “Under stan (1997) (cita 251-52, 1055, 948 P.2d 1092-93 dard, we examine the facts and answer the omitted). tion In First Hawaiian Bank v. question required being without give Powers, 174, (2000), 93 Hawai'i 998 P.2d 55 weight to the trial court’s to it. answer (ICA) Appeals the Intermediate ex Court Thus, a binding [conclusion law] is not phrase amined the “otherwise defend” upon appellate freely court and is review District Court Rules Civil Procedure Kane, able its correctness.” State v. 87 (DCRCP) 55(a), which Rule is identical to 934, (1998) (quot Hawai'i 951 P.2d 937 55(a), by considering Rule HRCP the inter Bowe, 51, ing 53, State v. Hawai'i 881 P.2d 55(a): pretation of the similar FRCP Rule (citations omitted). 538, (1994)) 55(a) obviously refers to Rule de- operate stages signed at the initial of a G. Sanctions (or complaint A party lawsuit. third com- cross-claim) counterclaim, plaint, “This court reviews the circuit party who must served is served imposition court’s of sanctions for discov defend,” plead, either “otherwise or suffer ery ... abuse under the abuse of discre a default. The rule is in the dis- written Vincent, tion standard.” v. Stender 92 Ha junctive. By express language it autho- 50, (citing wai'i 992 P.2d plead if only party default rizes fails Farms, Agric. Kawamata Inc. United Therefore, or otherwise once a defend. Prods., 86 Hawai'i 948 P.2d party pleaded, has or has de- otherwise (1997)). aspects “All of a HRCP Rule fended, may subsequent con- party’s determination should reviewed under duct, appeal1 such at trial [as] a failure to the abuse discretion standard.” Cana comply discovery or a failure to re- lez, 89 Hawai'i at 972 P.2d at 303 quests, subsequent failure considered omitted) (quotation ]. justify so as to “otherwise defend” 55(a)? entry of a default under Rule Fujimoto, 95 Hawai'i at 19 P.3d at 720. proper answer is no. There is no need for type expansive interpretation IV. DISCUSSION 55(a). Rule Appeal A. Procedural Issues on (App. Hawai'i 2000) (quoting 10 Moore’s Federal Practice motion Default (3d ed.1998)). § 55.10[2][b] at 55-12.1 ad dition, courts the ICA “[s]ome noted argues the circuit court 55(a)’s properly recognized that Rule denying request entry erred language may be ex ‘otherwise defend’ 55(a) default under Rule because Nissan justify has a dismissal once there tended respond pleading. failed to his amended responsive pleading or an been an initial initial action that Id. constitutes defense.” 55(a) provides that HRCP Rule party against judgment Here, when “a whom a given rigorous Nissan’s de sought plead complaint, relief is has as evi affirmative failed to fense *11 160 motions, Here, explained multiple the circuit court its by pleadings and its

denced deny to pursuant to to motion it said default decision Gonsalves’s amend cannot be 55(a) Rule complaint: HRCP his Rule warranted. HRCP 55(a) pleading to file a not intend failure did In motion to file second terms of trial. existence of months to vitiate the complaint, supplemental and I’m amended that, Indeed, “[g]en- has this court observed deny going to I think that it. the—the judgments erally, not favored be default are basically presented evidence was opportu they parties afford do not cause part parcel already and of claims that nity litigate claims on the or defenses pled, particular in been the sex discrimina- Genesys Technologies, In re Data merits.” promissory estoppel claims. tion and 33, 40, Inc., 902 Hawai'i omitted). Moreover, (2001) (citation Gon- conceded that his motion Gonsalves amend retaliation, specify why, given simply “clarify” negli- is unable salves was his appeal, is incom implied the record gence, issues raised and contract claims. Because Accordingly, the court did not plete. sufficiently circuit complaint filed artic- Gonsalves’s denying in its discretion Gonsalves’s claims, abuse was those an amendment un- ulated motion. necessary or was not “futile.” Gonsalves claims, precluded arguing those cf. 15(b) (“When issues not HRCP Rule raised complaint special ver- 2. Amended by express by pleadings tried are dict form they implied parties, consent of shall argues that court im- the circuit Gonsalves respects they in all as if had treated been properly his for leave to file denied motion fact, pleadings.”), in the raised complaint supplemental second amended expressly circuit court in its stated denial Relatedly, clarify claims. order foreclosing implied it was con- argues that circuit court erred claim based on tract Kinoshita Canadian by giving a verdict form without Gonsalves’s Airlines, Ltd., 68 Haw. P.2d Pacific claim. negligence (1986). Furthermore, jury received instructions as to all of claims. Ac- these 15(a) pertinent part, HRCP Rule In cordingly, the circuit court did not abuse party par provides that “a amend the discretion. by by ty’s only of court or pleading leave regard special With to the verdict party; of the written consent adverse assertion, form, contrary to Gonsalves’s justice freely given so shall be when leave negligence did include form Gonsalves’s rule, interpreting In this requires.” Assuming prove claim. could general standard court has looked claim, that claim sex discrimination was by applied federal courts: premised negligence of Nissan con any apparent In the absence declared investigation. ducting thorough” a “fair and delay, bad faith or undue reason—such addition, claim that Nissan movant, dilatory part motive on the of the proper failed to abide standard care repeated failure cure deficiencies included in the defamation intention allowed, previously undue amendments infliction of al emotional distress claims. prejudice opposing party to the virtue Thus, special the circuit court submitted amendment, futility of of allowance addressing adequately form is verdict should, amendment, sought etc.—the leave not abuse its sues involved did discre “freely given.” requires, as the rules tion. Corp. Mortg. Loan v. Trans Federal Home Co., Ins. Hawai'i

america B. Sex Discrimination (quoting Foman v. P.2d circuit Davis, Nissan contends that court 83 S.Ct. 371 U.S. (1962)). by denying summary its motion L.Ed.2d 222 erred *12 (2) judgment, judgment following two motions for as The distinctions between Pierce (3) law, Kennedy matter of and motion for undisputed: renewed and are was a Pierce judgment not; supervisor as a matter of law Kennedy because Gon- was Pierce offices, prove prima was responsibility salves unable to case facie had over three for Kennedy sex discrimination. Gonsalves articulated whereas was an “office adminis- (1) supervisory three claims sex discrimination: Nissan trator” with no control over differently any employees; treated Gonsalves than Torres other Pierce evaluated with regard respective complaints; employees, Kennedy, including their while Ken- one; and, differently nedy Nissan treated Gonsalves than no evaluated unlike Kenne- workplace engaged others who in ac- dy, agency group meetings Pierce attended potentially qualifying tions responsible as sexual harass- was for enforcement ment; against company’s policy. Nissan retaliated Gon- sexual harassment filing complaint by firing salves for him and Id. at 936 P.2d at 650. This court ob- suspending Merna Nakamura.8 We examine holding served the Sixth Circuit’s fo- each of Gonsalves’s bases determine particularly “on a cused relevant detail that he whether has a viable sex discrimination distinguished them”: claim. Kennedy, supervi-

[U]nlike Pierce—as employer’s sor—could be considered the “similarly 1. treatment Differential agent, following and because this incident situated," employees behavior, employer on was notice First, alleges could Nissan itself be held liable against discriminated him on the basis of sex under for for Title VII sexual harassment similarly-situated that a employee, female such This was behavior the future. Torres, subjected Kennedy. was not to the same not true of treat ment he as was. Pierce, 803-04). (citing Id. at F.3d distinguished factors that same Pierce prove To sexual discrimination based Kennedy distinguish likewise Gonsalves from “similarly differential treatment of situat Torres, Gonsalves, Torres. unlike su employees, prove ed” must “[Gonsalves] pervisor and could Nissan’s be considered aspects all of employment the relevant of his agent. Nissan Once had notice Torres’s employees situation were similar to those Gonsalves, po allegations against Nissan was with compare whom he seeks his treat tentially liable for future harassment. sexual Zoological ment.” Furukawa v. Honolulu Boca,Raton, Faragher City 524 U.S. See Society, 85 Hawai'i P.2d 141 L.Ed.2d 662 S.Ct. (1997) (adopting “similarly situated” em (1998); Industries, Burlington Inc. v. El ployees analysis in Pierce v. Commonwealth lerth, 524 U.S. 118 S.Ct. Cir.1994)). Co., (6th 40 F.3d 796 Ins. Life (1998). Indeed, L.Ed.2d 633 “[generally, similarly This court stated that acknowledges respon complaint that he was employees subject are who are situated those enforcing policies, written sible Nissan’s policies the same subordinate to the addressing as such the one sexual harass plaintiff.” same decision-maker Id. ment, regard with and other subor Torres already This court has examined the Sixth Thus, were dinates. Torres holding compari in Pierce Circuit’s that “the “similarly employees. situated” employees] son [between the two was invalid employees Accordingly, because two were not similar unable to dem- Gonsalves is ly a claim of sex discrimination based situated”: onstrate Nissan, Nakamura, top employee green Naka- 8. a white to work. bra[s]” Merna testi- under that, openly testimony fied enlargements. Torres her giving talked about breast claimed after favor- mura Gonsalves, She also observed that Torres against her able to Nissan retaliated slacks, "very revealing” would wear thin and pay. by suspending weeks her four without underwear, apparently "bright no ployer “discharge, e^pel, or dis- similarly situated otherwise differential treatment employees. any individual criminate because the any practice forbidden opposed individual has testified, part complaint, or has filed con- treatment similar *13 Differential any proceeding respecting in or assisted duct prohibited discriminatory practices under Second, Gonsalves contends part.” this against ba discriminated him on the Nissan differently in that was sis of sex he “treated prima a case To maintain facie place engaged in in others the work who than 378-2(2), §HRS one must retaliation under conduct.” similar demonstrate that: (a) (i) any plaintiff opposed prac- has inquiry “The central focus 378, chapter Em- tice forbidden HRS al employment is case] discrimination [an Practices, I, ployment Discriminatory Part ways employer treating is ‘some whether the (ii) complaint, a testi- Practices or has filed favorably than people less others because fied, any proceeding respect- or assisted race, color, sex, religion, national or their ” discriminatory practices prohibited ing the Furukawa, 85 at 936 origin.’ Hawai'i (b) part, employer, his or under her (citations omitted). Here, at 649 Gon- P.2d organization, employment agency labor basis claiming discrimination on the salves expelled, discharged, has or otherwise dis- by a therefore demonstrate of sex must (e) plaintiff, against criminated a was preponderance of the evidence that there pro- link causal has existed between Id. at on the basis sex. discrimination activity and the action[.] tected adverse Yet, in P.2d at cited 936 employees where made com stances male Ltd., Agency, v. Reliable Collection Schefke employees, sexual in ñatee to ments female 96 Hawai'i 70 employees inappropriately, or touched female (internal omitted); quotations and citations Indeed, disciplined. and were not Gon- Henderson, Ray also 217 F.3d see v. actually that male salves’s evidence indicates (9th Cir.2000) (setting 1240 forth the same may leniently. employees been have treated three-part establishing prima test for a facie Thus, allegations of inconsistent Rights under YII of the Act case Title Civil are are not based on treatment sex 378-2). § analogous which to HRS a sex therefore irrelevant discrimination Filing Equal Employ a complaint with Accordingly, not state claim. Gonsalves does (EEOC) Opportunities ment Commission cognizable claim of sex discrimination making complaint supervisor to a informal based on differential treatment for similar protected are both activities.9 See HRS conduct. 378-2(2); 3; § 217 n. Ray, F.3d at 1240 see Sch., Community EEOC v. also Romeo 3. Retaliation Cir.1992). (6th F.2d Finally, Nis claims that requirement no There is him against on the basis san discriminated based retaliation claim be successful illegally in that Nissan retaliated sex Islandair discrimination claim. See Aloha and Nakamura. himself (9th Tseu, Inc. v. 128 F.3d Cir. 1997) 378-2(2) (1993) (observing that “the Hawaii § an “un- statute Under HRS it is any discriminatory practice” prohibiting em- does not condition lawful retaliation charge practice, 9. Gonsalves later filed employment in an it was filed of discrimination unlawful Thus, Rights only with the Hawai'i Civil Commission after had fired Nissan Gonsalves. (HCRC). charge Although marked for such activity” allegedly "protected after occurred identification, Nevertheless, in evidence. it was not admitted serve the basis for termination and cannot charge out a even if tire retaliation claim. engaged reasonable claim that the had underly retaliation claim charge falsely on the merit that defendant had ac- claim”); ing Moyo, discrimination driving compa- him F.3d cused of reckless (stating that under VII not ny parking Title it is lot. necessary employment practice that the actu (“It 159; Id. at id. see also be that the unlawful). mean, ally be This how does [employer’s wrong spite- action] was even ever, employ belief that an unlawful however, emphasized, ful. We Ti- will practice ment has occurred suffice statute.”) general tle VII is not a ‘bad acts’ purposes establishing There retaliation. (quoting Crowley George’s County, Prince “ must abe ‘reasonable em belief (4th Cir.1989)). 890 F.2d ployer engaged has in an employ unlawful *14 practice.” Moyo, case, ment F.3d present See at 1385 In the a Gonsalves wrote (citation omitted). and emphasis Further memorandum to Morrison and Suehisa re- more, garding the “hostile work environment” he faced: employee’s]

[t]he of reasonableness [the that an employment prac- that, belief unlawful In 1980 promulgated the EEOC “If according tice occurred must be assessed pur- an employee such conduct of has the objective an standard—one that makes pose unreasonably of [sic] effect or [sic] allowance, moreover, due for the limited interfering per- with an individual’s work knowledge possessed by most VII Title creating or intimidating formance an hos- plaintiffs legal about the factual and bases environment,” or working tile offensive it again of them a claims. We note that just is defined as work- cause for hostile may reasonable mistake of or be one fact ing environment. long

law. We also note that it has been Please be aware that Neldine Torre[s]’s VII, leg- established that Title as remedial along daily attitude and with conduct her islation, broadly. is construed This di- actions, performance, insubordination of applies rective to the reasonableness of job duties, daily description, responsi- her occurred, plaintiffs that a belief violation bilities, company policies, causing as as to well other matters. working myself hostile environment for (citation emphasis my Id. at 1385-86 of omit- and members staff. Not to mention ted). by the emotional distress caused defama- being tion. This emotional distress is Liebenthal, In Balazs v. F.3d by informing caused of Neldine members (4th Cir.1994), plaintiff, claiming the retalia- staff the that are not involved with the tion, complaint any allega- filed a of “devoid allegations charges or were unaware of the plaintiff tion that against discriminated filed me. This alone is a breach Although because his the sex.” Fourth rules, company INMS “unauthorized re- Appeals acknowledged Circuit Court of that lease information[.”] confidential plaintiff successfully did not have respect I company, do the wishes claim, prove underlying discrimination resolved,” “being patient until this is but plaintiff the court held that could daily my it due effect has me and reasonably an believed that unlawful staff, I feel matter described discrimination had occurred: pos- above should be addressed as soon as plaintiffs In this case claim first working sible. This hostile environment alleged simply filed the EEOC substantially affecting unwelcome and is doing something— he had been accused of per- work environment of reasonable sexually harassing his co-workers—which sons. nothing he did not do. It had to with do race, color, religion, Although appears his paragraph sex national the first to ad- jurisdic- origin. illegal EEOC had no more dress the discrimination issue invoking guideline, than it tion of this claim would have had of the actual alie- EEOC application general gations in the second arise as described Gonsalves principle equitable estoppel to certain paragraph do not discrimination involve made, promise has been situations where fact, clarified based on sex. Gonsalves consideration, if it though -without even work hostile that Torres’s conduct created promise was intended relied him, only also for not but environment upon, in fact and a upon and was relied staff, included males and which both females. virtually it would be refusal to enforce result, a claim As a does not have perpetration sanction of fraud or result for retaliation. injustice. in other was, mat- as a We conclude Herrick, Hawai'i In re law, unable to maintain discrimi- ter sex omitted). Draw'ing (quotation (a) nation claim based on treat- differential (1979), § 90 from Restatement Contracts (b) “similarly employees, ment of situated” of a this court has outlined the elements conduct, differential treatment similar estoppel promissory claim: (c) hold, with Accordingly, we retaliation. promise promisor A which the should rea- respect sex discrimination to Gonsalves’s sonably action or expect induce forbear- claim, denying the circuit court erred part promisee or a third ance *15 (1) judgment, summary motion for Nissan’s person and which does induce such action (2) judgment two for as a matter of motions injustice if binding or forbearance is can be (3) law, as judgment motion for renewed only by prom- of avoided enforcement law.10 a of matter ise. 194, Hawai'i, County Ravelo v. 66 Haw. of Promissory Estoppel C. (1983). 200, 658 P.2d In other unable Nissan asserts that Gonsalves was words, promissory of the four elements es- estoppel promissory a claim establish toppel are: that, result, by a trial court erred as (1) promise; must be There (1) summary judg- denying motion for its (2) must, promisor The at the time he or ment, (2) judgment two for motions promise, she foresee that the law, (3) for matter of renewed motion promisee rely upon promise would judgment as a of law.11 matter (foreseeability); (3) Generally, promissory a claim for promisee rely upon in fact does promisor’s promise; estoppel discovery following points preventing as Elen- 10. The of error are related Nissan’s motion (1) Nissan Gonsalves’s sex discrimination claim: argues the Carlsmith Ball of to-Sneed and custodian by denying erred by circuit court shortening records erred and that court in limine to exclude relevant evidence (6) motions hearing; argues time for Gonsalves that if retaliation; (2) argues circuit Nissan that the regarding this court evidence his determines that granting court motion in erred Gonsalves’s relevant, background is then Torres’s back- legitimate, evidence limine to exclude relevant nondiscriminatory ground relevant and the cir- information also for termi- reasons Gonsalves’s granted improperly cuit court Nissan’s motion nation; (3) argues that the circuit court Nissan Torres; limine to certain evidence as exclude witness, by allowing expert erred (7) argues that he denied Gonsalves Park, testify "regulatory Kim Patricia as a and her both Elento-Sneed witness affidavit. agency guidance concerning the of sexu- conduct was, law, As Gonsalves as matter of unable to investigations is relevant al harassment not a claim, maintain a discrimination this sex court for the of an investi- standard gation[;]” conduct need not these issues. address (4) argues that the circuit court Nissan by failing jury erred legal instruct "about additionally jury 11. Nissan that the in- claims investigation harass- standards sexual improperly promis- on the structions instructed by complaints developed ment the EEOC and that, sory estoppel Because we hold as a claim. recognized by Supreme in Meritor U.S. Court policy, public not [, matter Gonsalves could Savings Bank v. U.S. 106 S.Ct. Vinson claim, (1986);]’’ (5) promissory estoppel maintain a see discus- ar- 91 L.Ed.2d 49 infra, argument. gues granting need not erred sion we consider the circuit court (4) promise Enforcement promissory neces- As the basis of his estoppel

sary injustice. claim, to avoid points following to the state- ments made Vice President Suehisa to Herrick, 337-38, re 82 Hawai'i at 922 P.2d alleged Gonsalves after Torres’s sexual Lord, (quoting at 950-51 4 R. A Treatise on (1) job;13 harassment: he would not lose the Law Contracts Samuel Williston (2) he attorney; did need an (4th 8:5, ed.1992)). § at 85-95 The “essence” “thorough” there would be a and “fair” inves- promissory estoppel is “detrimental reli tigation allegations. of Torres’s Suehisa tes- Ravelo, promise.”12 ance on a at 66 Haw. [employees] that it was rely tified “fair for 658 P.2d at 887. [his] word.” “promise”

This court has defined a purposes of promissory estoppel to “a This court will refuse to enforce manifestation of intention to act or refrain promises against public policy. that are See acting way, in specified so made as to Hawai'i, County Konno v. 85 Hawai'i justify promisee in understanding that a 73-79, 937 P.2d (refusing 408-415 Herrick, commitment has re been made.” In against public to enforce contracts that are (quoting 82 Hawai'i at P.2d policy). placed great This court has weight (Second) 2(1)) § Restatement Contracts rights” on the “valuable of one to seek reme (internal omitted). quotation marks More dies sexual harassment and other forms specifically, “promisor manifests inten Agsalud, of sex discrimination. Puchert v. if tion” he she “believes has reason to (1984). Haw. promisee believe that the will that in infer Thus, this court cannot condone the violation tention from his [or her] words or conduct.” statutory rights, constitutional and see (Second) (quoting Id. Restatement of Con Const, I, 5;14 § § Haw. art. 378-2 HRS 2(1) b) (internal § quotation tracts comment *16 (1993 Supp.), shirking & or a legal of omitted). Ravelo, couple marks a detri duty, Rights § see of Civil Act 701 et mentally County Depart relied on the Police amended, seq., § as et seq. U.S.C. 2000e stating ment’s letter that the husband had (1994), simply is because it cloaked in a police accepted been as a recruit. This court promise. brief, In its amicus curiae the Ha- County that anticipated held “could have (HCRC) Rights point wai'i Civil Commission employment assurance of at a definite that, [employers’] “[t]o time ed out the extent that would a induce reaction of that nature [i.e., promises a couple quitting jobs constitute disavowal of an of em the island preparing ployer’s legal obligations Oahu and to move to of to take immediate the island Ravelo, appropriate prevent Hawai'i].” Haw. corrective action to harassment, they at 887. sexual must be treated as 12.Here, promissory estop- security provided requisite Nissan avers that the elements of [a claim, Hawai'i, pel only recognized applies satisfied."). as in estoppel promissory claim] are promise to a definite of future radrer than contin employment. ued But court in Ravelo did regarding 13. Suehisa's inter-office memorandum application promisso not limit ry estoppel of the doctrine of Conclusions,” "Management's "[Tor- states that only employment. offers of new position, res] will as[ ] [Gon- maintain her as well Rather, emphasized this court that where the Furthermore, salves].” Gonsalves testified promissory estoppel of elements a have been Suehisa him that he assured "didn’t employ satisfied—whether in the context new worry losing job.” [his] about employment—a promissory ment or continued estoppel claim be can maintained. thisAs court I, explained, promissory estop- has the essence 14. Article section 5 of the Hawai'i Constitution precise pel promise, provides part not the nature of the person but in "[n]o relevant shall promise.” laws, rather on a "detrimental reliance Ra equal protection ... denied the be velo, 887; 66 Haw. at 658 P.2d at accord enjoyment person’s nor be denied the of the civil Spencecliff Morishige Corporation, F.Supp. rights or discriminated the exercise (D.Haw.1989) ("This court can find no race, religion, thereof because of sex ances- distinguishing promises rational basis for for I, (1978). try." § Art. employment promises job new for continued public decision to termi- policy.”15 signed. as matter of Suehisa based his a

unenforceable alia, on, employee’s

nate Gonsalves inter ease, present report, In the to the extent and the interim which statements could engaged that Suehisa’s statements be construed that Gonsalves had in- concluded as that he would retain promising creating Gonsalves envi- appropriate conduct hostile job findings of regardless Moreover, his waited three ronment. Suehisa they investigation, we hold that are unen days sending a termination letter to before public policy. An forceable as matter receipt the un- Gonsalves to await interpretation that would en Gonsalves Thus, signed his conduct did statements. employment, despite sure his continued find promise his not constitute breach of sexually ings that harassed his he others “thorough” investiga- “fair” conduct a workplace, would to either absolve Nissan tion. ap take obligations its immediate respect Accordingly, prevent propriate action to sexual harass claim, promissory estoppel the circuit court hinder Nissan in its fulfillment of ment (1) by denying Nissan’s motion for erred “prom obligations. To enforce Suehisa’s (2) summary judgment, judg- two motions finding after a harassment ises” sexual (3) law, as matter of ment renewed Thus, public policy. would be offensive we judgment as a of law. motion matter that, case, to present hold in the the extent promises made to were Gonsalves job regardless of would retain his he Implied, D. Contract investigation, promises outcome of the those Nissan contends un- unenforceable, and were unable implied able to maintain an contract claim. promissory estoppel to maintain a claim for Thus, Nissan asserts that the trial court public policy. as a matter (1) by denying summary its motion for erred judgment, judgment two motions promissory Gonsalves also bases law, matter of motion for renewed promise estoppel claim on Suehisa’s to con judgment as a matter law.16 “thorough” investigation duct and “fair” allegations. Unlike first Torres’s two *17 implied Gonsalves based con promises, promise not was breached employee language tract claim on of his the to in Suehisa hired Linda Kreis Suehisa. protect against To claims of handbook.17 vestigate allegations. Torres’s Kreis inter implied upon of breach contract based em nine viewed and took the statements of em handbooks, ployee may Torres, employers use “dis including ployees, and and stating expressly that handbook claimers the report summarizing prepared a the results or manual is not contract and not alter investigation. report does of The was her termed employment l’elationship.”18 report an at-will interim because several the the Institute, Practicing yet Employment- taken not Law statements Kreiss were The brief, to, argues points In its lire 15. amicus curiae EEOC describes Nissan that Gonsalves should “important employers play permitted implied in role” that not been add con- claim, objectives "achieving jury [Title VII of Civil tract and that the instructions there- erroneously Rights implied The Act].” focus the EEOC’s concern fore included an contract hold, by instructing that we was the circuit court erred instruction. Because a matter of policy, jury public that could find liable for sex that could not maintain it Nissan dis- claim, investiga- implied crimination if it decided that Nissan’s a breach of contract see discus- infra, argument. thorough." argues "fair we need not consider this tion not and It that sion error, corrected, "if will such not tend chill portions provided 17. The relevant are significant employers playing role as- infra. signed state them federal and law ensure Recently, 18. this court described the evolution compliance workplace.” with in the those laws employment” current status of the "at-will and additionally Shoppe jury Nissan claims that the in- in Hawai’i. See v. Gucci Amer 16. doctrine Inc., ica, 368, (2000). improperly implied instructed on the 94 Hawai'i 14 P.3d 1049 structions doctrine, developed part contract claim. As of the error that in the mid-nineteenth Nissan

167 Inc., America, Exceptions Wyoming, at-will. Doctrine: Have Its Swal teers 964 P.2d Rule?, 577, se (2001); per lowed (Wyo.1998). 650 1245 619 Disclaimers do not PLI/Lit Inc., Lumacorp, also v. see Davis preclude implied 992 a claim for breach of an (D.Kan.1998); v. F.Supp. 1250 contract. The effectiveness of disclaimer Vanderhoof Institute, reasons, Extension F.Supp. 988 507 be vitiated for number Life (D.N.J.1997); (1) clear, Village Orr v. Westminster including that: disclaimers are North, Inc., (Ind.1997); understandable;19 (2) 712 conspicuous, 689 N.E.2d eon- Phipps Corp., v. Health manual;20 IASD Services language tradict 558 in the eon- (Iowa 1997); 198, Bear Volun v. subsequent N.W.2d 204 tradict oral statements written 906421, 1, century (1994 and was based WL on "notions of free 17 A.L.R.5th 24-76 & Supp.2001). dom contract of the value of economic growth,” recognizing employer's right an to dis cause, causef,] charge good "for for no or even 385, Shoppe, 20. See 94 Hawai'i 14 at at P.3d 4 382-83, morally wrong.” cause Id. at 1 1066; Miyagi, Calleon v. 76 Hawai'i (quoting at P.3d 1063-64 Parnar v. Americana 1278, (1994) (scrutinizing 1284 Hotels, Inc., 370, 374-75, 625, 65 Haw. P.2d 652 language observing in tire manual and (1982)) (internal omitted). quotation 628 marks very specific procedures "there were few includ Yet, "[d]espite our reaffirmation of the at-will manual; specifically concerning ed in the none principle, recognize we that courts have decided termination”); Kinoshita, employee 68 Haw. at previously right employers that the unfettered 603, (explaining employ 724 P.2d at 117 discharge employees contractually to modified, ‘can be "attempted atmosphere job er an [create thus, qualified statements con security promises and fair treatment] employee policy tained in manuals or handbooks situations”); specific specific treatment see " by employers employees.' issued to their Id. at Corp., Ingels also v. 42 F.3d 624 Thiokol (citing 14 P.3d at 1064 v. Kinoshita Canadi (10th Cir.1994) ("The alleged agreement must Airlines, Ltd., 68 Haw. 724 whole, Pacific any agreement read as a so that terms are 110, 115-16(1986)). P.2d disclaimers.”); light read in v. Zaccardi (10th Corp., Zale 856 F.2d 1476-77 Cir. 1988) Shoppe, (stating See 94 at "[a] Hawai'i 14 P.3d at disclaimer contractual (noting negate unambiguous automatically 1066 the "clear and lan does not a document’s con handbook); guage” employee Courtney v. tractual and that the manual contained status” “ Rental, Inc., Canyon Appliance might 'specific & terms' Television 899 contractual evidence Lines, (9th Cir.1990), intent”); aff’g F.2d 845 3 BNA IER contractual Aiello v. United Air Inc., (D.Haw.1988) (5th Cir.1987) (consid (noting explicit CASES 619 dis 818 F.2d claimer); Inc., Eng Longs Drugs, ering company regu 5 BNA IER the "detailed nature of the (D.Haw.1990) (noting express understanding employees CASES 342 lations and the cover); personnel respect supervisory disclaimer on the inside of back see have with Orr, being part binding employment (requiring also 689 N.E.2d at clear them tract”); of a con Ctr., dissemination); language Wesley appropriate Fletcher v. Medical (D.Kan.1984) Phipps, (requiring F.Supp. (requiring N.W.2d disclaimer 1264-65 entirety unambiguous clear in its terms and in its handbook be examined in its Ctr., coverage); Community rejecting Falco v. Med. "notion that words an choos N.J.Super. put employee legally 686 A.2d es to are handbook (stating straightforward fury”); insignificant that a clear and sound and v. Union dis Holland *18 claimer, Inc., 1026, California, prominently conspicuously dis Oil Co. (Alaska 993 P.2d 1032 1999) terms,” played, may implication (noting "hedging that an that overcome the such instances,” may employment manual an enforceable as "can result” and "in most not constitutes contract); Bank, expectation employees employment Jose v. Norwest create a reasonable that 293, and, thus, (N.D.1999) granted (noting rights, 297 599 N.W.2d that an been certain contract); explicit conspicuous implied demon not form an Jones v. Central disclaimer 783, Hosp., 788 employer’s the that the manual be General 779 P.2d strates intent Peninsula (Alaska 1989) Thompson merely guide (finding implied employee); an for the v. contract be Co., 219, contrary Regis Paper impression, the St. 102 Wash.2d 685 P.2d cause "manual created 1081, disclaimer, specific employees pro (noting are to be 1088 that and con to the that Orr, employer job protections”); spicuous prevent vided certain 689 statements can an with ("The vague employment gen being 721 statements in N.E.2d at Handbook's from bound manuals); Sisneros, Wyoming, [procedures] when Inc. v. eral statements about Arch of 981, language (Wyo.1999) (requiring weighed specific clear and 971 P.2d 984 dis the unambiguous); giving [employer] disciplin conspicuous claimers to broad discretion be Annotation, disclaimers, Blum, ary prominent George [do L. matters and the see also Effective contract].”); Employer's Representations implied Castiglione v. not an ness Disclaimer create 325, Employee Hosp., Hopkins Md.App. Al John 69 517 A.2d in Personnel Manual or Handbook review, 786, (1986) ("The Relationship, tering Employment provisions for At-Will 1994 793 168 warning written termination. The employer.21 before provision plain it that ter- handbook makes effect Shoppe, this court addressed the predicated exclusively upon mination is not in the of a express of an disclaimer context receipt of two or more written incident There, at-will implied claim of contract. an reports. employee may An terminated employee alleged employer’s hand that the if, receiving report without in the written “implied an contract.” The book constituted supervisor, discipline estimation her “such however, handbook, employer’s “clearly stat is warranted.” employment at-will that Plaintiff’s ed addition, employee’s supervisor Id. In time ' n with any at could terminated had determined that was war- termination 385, Shoppe, 94 Hawai'i at

without notice.” 385-86, at 14 P.3d at 1066- ranted. See id. that plaintiff 14 P.3d at 1066. admitted The Thus, this court concluded that 67. was an at-will she had been advised she plaintiff not maintain a breach of im- could could employee and that she understood she plied contract claim based on the handbook. at time for no reason. be terminated 386,14 P.3d at Id. plaintiff argued that the id. The next See employer “deviated from the termination case, employee In this Nissan’s employee in the procedures established unfairly handbook does not induce an em departure that consti handbook and such ployee rely page on it. first an implied tuted a breach contract.” Id. “Employee Acknowledgment Company However, language of the handbook re Guidelines,” requires Policies and which garding warnings oral and written was not employee’s signature acknowledgment mandatory: employment his or her at-will with Nissan: hereby language, employer’s] acknowledge I I have upon [the

Based that received employee require copy not Policies Man- handbook does and Guidelines context, larger (finding were but P.2d at 117 an had when viewed that ‘general amounting “created with obli policy to an a situation 'instinct an statements' ” letter, distributing gation' by requir which employment informed offer of for a definite term or Falco; employees employment dismissalf.]”); “our that written ar ing A.2d at cause for 686 rangements you ... constitute] ] with an enforce disclaimer, (holding 1225 when read us [the] able contract between under labor law of together procedures, disciplinary with the did you your rights in the state in which work. Thus contract); implied not indicate creation of your arrangement guaranteed”); employment are Jose, (stating N.W.2d at in deter 599 297 (in Courtney, concluding see also 899 F.2d at 850 implied mining con whether manual creates created, implied that no contract was the Ninth examined"); tract, entire will be "the manual suggest Circuit no "evidence [the noted Community Payne Sunnyside Hosp., v. 78 Wash. employer's] actions were not consistent with the App. (finding that 894 P.2d disclaimer”); Raymond v. International Bus. Hospi a disclaimer was “inconsistent with the (2d (em Cir.1998) Corp., Mach. F.3d progressive discipline tal’s terms in choice of ployer’s employee had officials informed policy” “also sec inconsistent another cause, and, company’s policy only fire provides pro tion of the manual which that the thus, contract); implied had formed an Reid v. subject waiver or cedures are not modification Sears, (6th Cir.1986) F.2d written without the officer"); consent of chief executive made”); (analyzing promises allegedly “certain Co., Phillips Alexander Oil Indus., Inc., F.Supp.2d v. Koch Elza (Wyo.1985) (finding "except 1388-89 1998) (for (D.Kan. totality of circumstances ... can be the recitation termination approach, dispositive "a disclaimer is not cause,’ ‘with without the tenor the ... implied whether an contract exists when tire Disciplinary and of the Procedures handbook company per record contains statements *19 necessity discharge”). cause for Manual reflect of intent”); indicating contrary sonnel Toussaint Michigan, v. Blue Cross & Blue Shield 408 of Shoppe, 94 at 14 P.3d at See Hawai'i (1980) ("Explic Mich. 292 N.W.2d 894 ("[I]f employer policy an issues statements provisions may supplemented it contractual be and, rules, otherwise, by in or or a manual by agreements implied promi- other from 'the actions, by employer’s language or the encour light and in the sur sor’s words rounding conduct thereon, ages ”); the cannot be Payne, reliance at circumstances.’ P.2d Kinoshita, selectively (citing inconsistently free it.” (employer to abide acted with the dis 117) (emphases by repeatedly insisting at 724 P.2d at Haw. claimers the hand Kinoshita, 598-99, followed). added)); at book "needed” to be 68 Haw. time, reason, any ual for any INFINITI-NISSAN MOTOR at at the discre- (“Company”). management. SALES I tion in Except understand that of the case of misconduct, merely the manual a general management of termination for overview Company’s policies notify will personnel employees some the make effort to in in guidelines policies writing and and that them termination advance. these and guidelines, any policies as well as other Similarly, you may resign elect to from the guidelines may and adopted by which be Company your Employees at discretion. Company, subject modification, the are to give management requested are to two the or change discontinuation without notice advance weeks’ written notice their Company. the officers of the to resign. employees intent who Those It is further language undei’stood that the provide Company the with advance written contained the and Policies Guidelines paid any notice will be unused vacation Manual is not intended to create contract they accumulated as to the date effective agreement or Company between the and resignation. pay their No vacation will employee employment and that is for given employees resign be to who without terminated, no fixed may term and adequate notice. notice, or any without cause or at time at Next, pertaining the section of the manual option Company employ- or the disciplinary procedures to general, utilized person ee. No other than the General optional language. disciplinary proce- The Manager authority has any to enter into qualified specifically dures and were reserved employment or oral written contract or to “right Nissan the to disci- take whatever agreement. plinary appropriate, measures it feels are Shoppe, See 94 Hawai'i at 14 P.3d at including discharge”: (noting plaintiff admitted that “she was advised hiring employee Company, and aware at the you time of As an are employee” was an at-will required she and that and abide certain rules acknowledged agreed writing regulations. she and sev- been established These have times). eral protect you, employees other and the Company injury or other threats to form, In acknowledgment addition to the your well-being promote and to harmoni- reiterated, Nissan the “Letter Wel- ous, working practices. efficient come,” immediately which follows the table of contents, employment at-will: and Failure observe established rules prepared practices disciplinary

This Handbook has been can action lead your general including It warnings, suspension, convenience. contains de- formal scriptions policies pro- probation discharge. of some of our and cedures but it does not constitute an Company’s practice help normal The is to agreement employment contract. your you identify problems improve to, Management right add reserves performance specific behavior. The policies, alter eliminate benefits and/or normally disciplinary action will based procedures any time without notice. offense, cir- on an assessment Furthermore, persons no than other your previous cumstances and record. Manager authority General to enter Company right take reserves the employment into or oral con- written disciplinary ivhatever measures it feels agreements. tracts or are appropriate, including discharge, inif addressing the section terminations judgment responsible supervisors resignations, again explained Nissan the at- managers employee’s can- conduct will employment: corrected, seriously not be it threat- if employment Company Company well-being Your with the ens or other employees. at will. It terminable be terminated *20 added.)22 contrast,

(Emphases ob- tion or harassment contact the General we concerning Manager immediately. harassment A in- that the section serve confidential mandatory lan- vestigation included will be conducted to resolve the and discrimination any guage: promptly. matter Retaliation against an who has individual form filed firmly to a Company is committed or complaint harass- discrimination right and the policy of non-discrimination ment not be tolerated. trill work employees to a environment all Dis- free of harassment and intimidation. added.) (Emphases employee any harassment of crimination or Finally, supra as we held section sex, race, color, age, reli- on the basis IV.C, subsequent “prom- insofar as Suehisa’s status, disability mar- gion, origin, national ises” to undertook to ensure Gon- Gonsalves ital or arrest and court record status despite employment salves’s continued Furthermore, prohibited. sex- unwelcome investigation company’s outcome favors, advances, requests ual for sexual complaint, they Torres’s sexual harassment physical and other verbal or conduct against public policy; were unenforceable as employee any oth- any nature to sexual correlatively, they interpreted to cannot be are violations of the employee er serious Put contradict Nissan’s disclaimer. differ- policy harass- Company’s against sexual ently, interpretation by that Gonsalves ment and trill not be tolerated. fundamentally would alter the nature of his as unwel- Sexual harassment defined employment on at-will a basis offensive advances, requests for sexual come sexual public policy would be unreasonable. na- physical favors or conduct a sexual when: ture under of these conditions Thus, we conclude Nissan’s disclaimer circumstances, was valid. these Nis- Under conduct involves -Submission modify right san’s handbook did not Nissan’s employment, of the individual’s condition discharge employees, give nor rise to the implied; or either stated recovery. possibility of contractual Accord- individual’s or refusal is -The submission implied ingly, respect with to Gonsalves’s used, used, might of an as the basis claim, contract the circuit court erred in- employment decision which affects the (1) denying summary motion for Nissan’s dividual; or (2) judgment, judgment two motions for as a law, motion for matter renewed unreasonably conduct interferes -The judgment a matter of law. job performance or individual’s intimi- a work environment that is creates

dating, hostile offensive. Compelled E. Based on Defamation Self- Publication responsible compli- All employees are Employees violating policy. this ance with circuit Gonsalves contends policy discrimination (1) granting Nissan’s court erred in motion subject trill be to immediate harassment judgment law as matter of action, appropriate disciplinary in- instruction, refusing his based on forced self- cluding possible discharge. publication.23 urges this compelled adopt theory any employee who feels court self- request We subjected publication. he or has discrimina- she been argu- following attempts proffered 23. instruction Gonsalves also fashion publication: self policy application of that uniform ment One who communicates de- Publication. implied creates an contract. Coinciden- Nissan tally, Self famatory directly per- matter defamed examples himself as Gonsalves adduced son, it third who himself communicates to a employees in inconsistent treatment of Nissan’s party, published third has not the matter brief, opening need this court not address person no If if there are other circumstances. issue. the circumstances indicated communica-

171 minority court This has established the A the an of states created necessary exception general four elements to sustain a claim to this rule where “the plaintiff effectively compelled publish defamation: is defamatory prospective the material to em- (1) a defamatory false and con- statement ployers.” Hosp., v. Baptist Sullivan Mem’l another; cerning (Tenn.1999). 569, 573 995 S.W.2d The Court (2) an unprivileged publication to a third Appeal of explained of California the reason party; recognizing exception: amounting fault at to negligence least The making originator rationale for of the part of publisher the the [actual defamatory fore- statement liable plaintiff public malice where the is a republication strong seeable is the causal figure]; and link originator between the actions of the actionability either of the ir- statement damage by republica- and the the caused respective special of harm the exis- tion. strong This causal link is no less special by tence of harm caused the republication where the is foreseeable publication. by person operating the defamed compulsion a strong republish under Harrison, 94, 100, v. Gold 88 Hawai'i 962 defamatory statement and the circum- (1998) (quoting Dap- P.2d 359 Dunlea v. strong compulsion stances which create the pen, 83 Hawai'i 924 P.2d 204 originator known are to the of the defama- (brackets (1996)) in original) (quotations tory at statement the time he communi- omitted). particular, “elementary it is it person cates to the defamed. principle of tort law” that a defamation claim publication requires party. to a third Clara, McKinney County v. 110 Santa 787, 797-98, Cal.App.3d Cal.Rptr. 89 168 protected interest which is here is (1980), quoted Adolph Churchey v. Coors reputation, liability and for tort to lie Co., (Colo.1988); 759 P.2d 1344 Lewis for either slander or the defamation libel Equitable Soc’y v. Assurance Life must party be communicated to some third (Minn. States, United 887 389 N.W.2d person than other defamed. 1986). Thus, that, “in some courts have held Okamoto, v. 56 Runnels Haw. 525 P.2d defamation, publication an action for re (1974). 1125, 1127 This has ad- court not quirement may plain be satisfied where the self-publication dressed the issue whether compelled publish tiff was a defamatory reason for termination former person statement to a third if it was foresee prospective employers satisfies plaintiff able to the would defendant requirement. publication Lewis, 888; compelled.” be so 389 N.W.2d at McKinney, Cal.App.3d see also at 797- Generally, person commu “where 89; Cal.Rptr. Churchey, defamatoi’y only nicates to the statements 1345; Neighbors College v. Kirksville Os defamed, person repeats who then the state Medicine, (Mo. teopathic S.W.2d others, publication ments Ct.App.1985); Corpus Bank First State person statements will defamed Ake, (Tex.App. Christi 606 S.W.2d support defamation action 1980). originator of P. the statements.” David Annotation, Nevertheless, Chapus, ad Alleged “majority Publication of states (“Self- dressing recognize ly Defamatory self-publi Matter do not the issue Plaintiff Ptiblication”) Support constituting publication cation as for defama Sufficient Defa Action, publication purposes, mation A.L.R.4th 622-25 tion even when nationwide). (1988) (survey compelled employment setting.” of cases Sul Ake, however, Corpus likely, party publi- tion a third State Bank Christi v. 606 S.W.2d may properly (1980)[.] cation be held to have occurred. (Second) 577; § First Restatement Torts *22 172 Eble, B. livan, (quoting v. at 574 Louis (citing at 573 Id. 995 S.W.2d Gore Self-Publi-

Health-Tex, (Ala.1990)); Inc., Employee Right or Em- 1307 567 So.2d cation Defamation: 745, Layne Plumbing Supply Burden?, Baylor Builders 779- also v. 47 L.Rev. ployee see 966, 493, Co., (1995)). Indeed, 155 569 Ill.App.3d 210 Ill.Dec. accepting compelled 80 the (1991); 1104 v. & N.E.2d Parsons South may actually harm self-publication doctrine Gulf (La. Co., Steamship 194 456 American So.2d employees been fired for discrimi- who have Bank, 202 Ct.App.1967); v. Chemical Wieder natory reasons: 168, (1994); 195 Yetter A.D.2d 608 N.Y.S.2d Normally, justifiably a factfinder would be 467, Corp., Pa.Super. Trucking 401 v. Ward employ- if suspicious an fired an (1991); Neuman, v. 48 A.2d 1022 Lunz 585 protected group in a to ee and refused 26, (1955). In addi 290 P.2d 697 Wash.2d at explain the for the termination reason tion, law many appljdng state courts federal discharge. In self- light time of of the See, e.g., recognized majority rule. have doctrine, however, publication employ- Inc., Joseph Hosp., v. 871 De Leon Saint justifiably silence viewed as er’s could be (4th Cir.1989); Spratt v. F.2d 1237 savvy suspicious. rather than Corp., F.Supp. 958 Northern Automotive (D.Ariz.1996); Longview 465 Sarratore citations, quota- (quotation, Id. internal (N.D.Ind. F.Supp. Corp., 1263 Van 666 omitted). marks tion Indus., 1987); Armstrong Hensley v. World Second, perverse plaintiffs would a have (W.D.Okla.1992). Inc., F.Supp. mitigate damages. id. incentive not See Sullivan, Supreme of Tennes- In Court at (citing Layne, Ill.Dec. 569 N.E.2d rejecting policy several reasons for see cited 1111). (1) the of limitations Because statute compelled self-publication. doctrine of in a case starts to run from the defamation Sullivan, First, allowing at 573. 995 S.W.2d publication, a cause of date of new a claim in such context would defamation publication, plaintiff a action arises with each employers’, employees’, interfere only ability control “would have “open public’s communication interest but number the statute limitations also the job-related problems.” (quoting about Id. of causes of action which arise.” Id. other Layne, 155 569 N.E.2d at Ill.Dec. words, job only a plaintiff apply need (citation omitted)). potential for defa- “[T]he give employer’s the former reason liability every employee time an mation Thus, a cause of termination action. communications terminated would chill subject employer could a defendant be place, preventing employers dis- work from liability plaintiffs throughout the lifetime. decisions, closing reasons for them business grievance negatively proce- affect and would Third, theory compelled self-publica- discharged em- intended to benefit the dures employee-at-will doc- tion conflicts with the ployee.” specifically, Id. More employ- trine. See id. Under at-will doctrine, employer may would [a] shutdown of communication ment terminate Em- employees employers. hurt both employee good an at-will “at time may (citation ployees falsely accused misconduct cause, cause, cause.” bad or no Id. they wrongfully terminated because omitted). adopt the doctrine of com- “To to rebut would never have chance duty pelled self-publication impose and to may Employees who false accusations. employers thorough investi- to conduct improve job perfor- able substandard leading gation accurate would conclusions so needed mances fail do because significantly compromise well-settled these is withheld.... It feedback seems principles encompassed at-will em- employees employers stand to both (citations omitted); ployment Id. doctrine[.]” employers adopt if of si- policy lose supra discussion IV.C. cf. Unfortunately, employees ... will lence. Finally, recognized the court that the Ten policy of such a without bear costs legislature already “spoken had nessee corresponding benefit. liability employer’s statement, the issue of the implication incurred at least where simple communicating the statement than a information about the involves more view.”) employee.” allegation, appears to be the better Id. Ill.Dec. omitted). (citation N.E.2d 1104. The court stated: *23 adopt majority § rejecting [Tenn.Code Under Ann. We rule of (Supp. 50-1-105 1998)], theory compelled self-publication. negligence Accord- enough mere is not ingly, circuit court did not err in presumption in rebut the favor of the em- dismissing claim Gonsalves’s for defamation contrast, ployer’s good faith. defama- (2) refusing Gonsalves’s instruction proven by establishing tion a that compelled self-publication. on based party published defaming a false state- disregard ment reckless for the truth with negligence failing

or in F. to ascertain Sanctions Thus, statute, truth. under an Discovery 1. sanctions employer could not be held liable for dis- closing allegedly defamatory information argues that the circuit only about which it negligent in ascer- in granting court erred Nissan sanctions taining follows, therefore, truth. It in Recently, Fujimoto Gonsalves.24 Au, an employer that should not held 95 Hawai'i liable (2001), explained for this court disclosure of this that con same information sanctions, “showing text HRCP Rule 11 self-published it when is a former em- required faith’ is not ‘bad where the con ployee. Rather, objec duct of is counsel at issue. an (citation omitted). Id. We observe that the standard, focusing reasonably tive awhat legislature prescribed Hawai'i has likewise believe, competent attorney would is the “employer that an provides prospec- that ato (citations proper Id. test.” and internal quo opinion tive information about omitted). signals tation employee’s job current or perfor- former Here, as described Nissan’s motion for presumed good acting mance to be faith August sanctions25 on the circuit qualified immunity shall have from civil request redepose court denied liability disclosing for the information and for Suehisa. court informed Gonsalves’s consequences of the disclosure.” HRS counsel, you depose “[F]or to ask to him 663-1.95(a) § (Supp.1998). again these un under circumstances seems court, however, warranted.” The observed argument We note that another that if pro “the documents which are [later] against recognizing compelled self-publi Suehisa,” call a redeposition duced for of Mr. theory cation in this context is “[t]ruth arranged. that could be August then On an absolute defense” to defamation. See 1999, Gonsalves filed notice Suehisa’s (citations Hensley, F.Supp. at 657 omit deposition. hearing, At after Nissan ted). Thus, employer’s statement that the pointed subsequently produced out that no employee perceived was terminated rea required a-redeposition documents the court truthful, regardless son would be of whether reprimanded Gonsalves’s counsel: the reason itself was accurate. id. But See Lewis, Well, see (“Requiring this, 389 N.W.2d I know from Mr. Mr. Suehisa go Hiatt, that truth underlying you as a deposition defense have noticed his be- September hearing, 11(c)(1)(A)actually 24. aAt HRCP court Rule states that a attorneys' awarded sanctions reasonable fees "motion for sanctions under rule shall be and costs because Gonsalves had "noticed [Su- separately other re- motions or deposition ehisa’s] [the before courl had] ruled Here, however, quests.” Nissan combined [Gonsalves had] issues which raised in anoth- protective motion sanctions with motion concerning redeposition.” er motion his On De- and motion for order shortened time. cember the court determined that Gon- salves should be in the sanctioned amount $5,000. you privilege claims of false I have on issues which order fore ruled concerning motion his relevance.26 in another raised find quite frankly I redeposition, and “[i]f, provides you ought to I think wait Rule

inappropriate. HRCP opportunity to you a reasonable ruling make a or—and then can after notice and until I you’re respond, that subdivi deposition, but now ask- the court determines his notice (b) violated, it, may, ing has the court to some extent allow sion been me allow below, subject im run and look at to the conditions stated deposition back motion, pose appropriate upon the attor your which isn’t even be- sanction his—at neys, firms, yet, parties law that have violated and I—I don’t think fore me *24 (b) practice. responsible or are for the proper is a subdivision Thus, the circuit court has the violation.” circumstances, circuit the court Given these imposi to the determine whether discretion sanctioning abuse discretion in did not its appropriate. monetary tion of sanctions is Gonsalves’s counsel. 137, 19 Fujimoto, Hawai'i at P.3d See 720. also the contends $5,000 in is excessive and un fees awarded case, court present the circuit exam- the The court made its reasonable. circuit deci and conduct at issue ined Nissan’s counsel’s n par- both reviewing filings four sion after that, although it it questionable, found ties, including Nissan’s claimed fees of being did not rise to level sanctionable. the $11,695.08, description which detailed the respect report improperly With to a Nissan nothing spent. is the There the time privileged, the claimed as irrelevant and that the circuit court record to indicate “ex court stated: disregarded of reason or ceeded the bounds certainly to ... I think that counsel needs principles practice rules of law or to the or you that if didn’t cross be cautioned here litigant.” party of a substantial detriment line, it you certainly tiptoeing on were Harrison, the 962 P.2d 88 Haw Gold v. you you to be careful and should and have (citing rel. ai'i State ex Bron to playing gain fast loose not be Corp., 82 Hawai'i ster v. States Steel United (1996)). advantage think it came strategic and I According very, very crossing that line. ly, close circuit court did abuse discre the $5,000 attorneys’ imposing tion in fees respect to introduce With to Nissan’s effort and costs sanction. contrary to without notice and evidence order, pretrial explained: court 2. Post-trial sanctions pre-trial court’s re- In terms order dress, already garding I I’ve appeal final is think issue Gonsalves’s by denying finding regarding a violation court whether the circuit erred so the real issue then comes 11 sanctions that order and his motion HRCP Rule pretrial to sanctions.... based on Nissan’s violation of upon with- May entered the record 26. the court denied Gonsalves's motion order On appeal days for sanctions. Gonsalves's date filed motion the in 90 after the the motion was denying sanctions Nissan’s order a denial of the motion. shall constitute properly court. Rule before this counsel appeal notice of shall be deemed The 4(a)(3) provides: disposition appeal post-judgment mo- of all Appeal by Post-Judgment Affected Time days entry within 10 after tions that are filed If, days entry than after Motions. not later judgment. any judgment, party files a motion seeks computed 90-day period shall be reconsider, vacate, judgment, or alter provided in Rule 26. costs, attorney’s filing time for seeks fees or February was filed on Gonsalves's motion days appeal until the notice of is extended entry judg- which was before notice motion; entry disposing of the of an order after April was filed on ment dispose provided, that the failure to (“For really pre- .... it purposes appel- So comes down 19 P.3d at 736 review, trial they and sanctions order and whether late be made distinction must be- Evans, Again, should issue or not. Miss I advocacy plain pettifog- tween zealous pre-trial think matter with gery.”). order dress, you are a zealous advocate for

your going argue clients. No one’s V. CONCLUSION that. Because to establish unable is, question And far how is that discrimination, implied maintain his sex permitted go? zealousness And at the contract, claims, promissory estoppel we time, instructions, settling jury same entry judgment remand for of a in favor of you conversing with off the record about a respect discrimination, Nissan with to the things, you’re person. number of a nice I promissoiy estoppel, implied contract personally no anything animus like appeal claims. claims raised that, you very you but are zealous when are without merit. clients, your you defend as well should be. is, question And real where is the *25 ACOBA, Opinion of J. you going line? are to Where draw it? you going step

Are to back from the line or on, to, you go up dip your going are toe AND CONCURRING IN PART over line. I you the And think have—with IN DISSENTING PART order, pre-trial you the I think crossed the main,1 disagree I respectfully the with line.... majority’s analysis promissory estoppel the tiptoeing You were on that line. That’s First, I following. the reasons believe of I going the benefit the doubt. Am [Defendants’] the “manifestation of intent” in you discretionary sanction for it? It’s promises by the made them to Gonsalves no, the court and I’m not. You’re cau- using objective must be an standard. viewed tioned. You’re You can admonished. be Hence, only, than the statements rather you straight up zealous can and be and be interpretation subjective the intent of of zealous the at same time. You don’t have Suehisa, Wayne the and Vice President Trea- [to] cross that don’t line. You have to Infiniti, surer of Nissan and the of Treasurer tiptoe on it and I think those comments of statements, in making controlling. the are I’m enough go- mine are sanction and not Ordinarily, promises, the nature of the ing any monetary impose sanction. sufficient to whether those statements were promise, questions create an are enforceable nothing There in the record indicate jury. for the court the circuit “exceeded the bounds disregarded of principles reason or rules jury I believe that the could deter- practice law or to the substantial detri- by mined that made one the statements Gold, party litigant.” ment of a 962 P.2d at sufficiently Suehisa was definite so as to Bronster, at (citing 88 Hawai'i 82 justify understanding in that a Gonsalves 316). Hawai'i at 919 P.2d 294 at However, binding promise had been made. only “prom- inasmuch Accordingly, circuit did not one the several the court abuse impose by jury declining in ises” submitted the court the discretion mone- claim, Fujimoto, sanction. See tary support promissory estoppel would I Hawai'i at egregious 1. I the were than also believe court abused its discretion in these violations more failing Defendants-Appellants/Cross- setting deposition to sanction unauthorized of a for which Hawai'i, Appellees Corporation Plaintiff-Appellee/Cross-Appellant Motor Leland Nissan Sales, (collectively, Ltd. and Infiniti Motor Inc. Gonsalves sanctioned the court and Defendants) majority upholds. agree pretrial which with the for violation of a order and I privilege majority's Major- sex and relevance.” resolution of Gonsalves’s discrimi- claims of "false added). ity opinion (emphasis implied I believe nation and contract claims. totality promise, the circumstances jury case to consid- remand the for the would promise supported Defen- the contract. determines the nature of er whether affirmatively if liability jury Agreement may acts dants’ be shown did, jury apply a parties, interpreted it then for decided conduct of the damages subject than light measure rather of the sur “reliance” matter and in- damages had “expectation” rounding as it been Price v. Public circumstances.” Second, view, (D.Colo. policy, in my public Co., F.Supp.2d structed. Serv. on, majority 1998) not man- Co., relies does (quoting which Soderlun v. Public Serv. that we refuse to enforce Suehisa’s date (Colo.Ct.App.1997)). Gonsalves, inasmuch as other promises to “prom- all Not statements are enforceable progressive discipline avail- were methods promise distinguishable A to act is ises.” policy public able to to meet opinion prediction. or a from an concerns. promise distinguished from

A must opinion prediction statement or mere I. of future events. The distinction usually the case According promissory estoppel to the in- informal difficult opinión, court, gratuitous there is since no given Suehisa struction often (1) act or re- intention to representations four to Gonsalves: manifestation (2) bring action or to about a attorney; did not need an frain result, fired; expectation performance no would not fair”; “thorough would- be no consideration. investigation provided that Gonsalves would be (Second) § 2 cmt. f Restatement of Contracts *26 “fail' and progressive discipline in a (1979). Moreover, promise a must be some consistent” manner.2 in what definite order to allow the court to promise evaluate the and its attendant obli that Defendants contend Vasey gations. See v. Martin Marietta estoppel promissory claim “fails as matter (10th Cir.1994) 1460, Corp., F.3d 29 1465 Su- of law” because statements (assurances fan- were express treatment mere “do not a clear and definite ehisa “vague assurances” and under act unenforceable commitment or intention to or refrain law); Computer acting any specified way.” (Quoting in Colorado Grossman v. Cur from 299, Herrick, Corp., F.Supp.2d riculum 131 306 n. 4 82 Hawai'i 922 P.2d In re (1996).) (assurances (D.Conn.2000) 942, maintain that 951 of continued em Defendants (1) opinion allegedly employee ployment, given first statement an to edu reflects (2) assurance, promise, an rather than a cational consultant in officer warning resign was a made to second statement to him from successful effort dissuade not a commitment to ing, insufficiently Neldine Torres was to were detailed constitute (3) Gonsalves, third statement promise); Marquette Sys., Irwin v. Med. therefore, and, provide (S.D.Ohio a clear vague Inc., 974, fails to F.Supp.2d 107 990-91 view, promise. my 2000) (e-mail In Defen- and definite message to from executive sales arguably regarding the dants are correct persons, informing strategic that alli them promises, first and third but not the second. company place ance with another did not job

anyone’s jeopardy, in did not constitute promise employment); of continued Wilder v. II. Co., 819, Mfg. Ill.App.3d Butler 178 128 Ill. (1989) 533 1130-31 Dec. N.E.2d question of an The enforceable whether (concluding by personnel that statements promise has been made is determined manager employee “[you’re] case-by-case has ob the first basis. As one court here[;][t]here’s served, establishing requisite problem[;][y]ou “as woman no alleged in fourth their briefs. 2. Neither mentions promise party permanent job,” discharged pending did clear state the outcome of the inves- tigation, and definite of an Defendants substitute view terms enforceable con them tract); subjective Sch., supposed Suehisa’s intent Avery Coonley Titchener v. convey. what (1976) trying was Suehisa Defen- Ill.App.3d 350 N.E.2d 506-07 so, doing promise dants inasmuch as (holding by employer that statement eiT objectively, must be viewed than as rather “[y]our school,] future is at [the here and I incorporating upon limitations based the se- hope many years it will be for to come” did effect, promisor. cret intentions of the not state clear and definite terms anof en “promise.” Defendants redefine the word contract). forceable III. B. Hawai'i, County In Ravelo v. 66 Haw.

A. (1983), P.2d adopted this court (Second) the revised Restatement Con Gonsalves, Suehisa’s first statement to (1979), § tracts which sets out the re attorney, Gonsalves did not need an quirements promissory estoppel. See Ra seemingly opinion assurance, or an rather velo, Haw. at at 658 P.2d 887-88. than “a manifestation of act intention to [promissory estoppel] “[T]he essence refrain acting specified way[.]” promise.” on a detrimental reliance Id. at Herrick, 82 Hawai'i at at (citations omitted). 658 P.2d at 887 The (Second) Contracts, (quoting Restatement of promissory estoppel pursuant elements 2(1)). supra, § Accordingly, it was not an § 90 are: promise. enforceable (1) promise; There must abe Gonsalves, Suehisa’s third statement must, promisor The time he or investigation “thorough would promise, she made the foresee fail*,” does indicate “intention act promisee rely upon promise (for- would in specified ... way[.]” Id. This statement seeability); was, however, insufficiently definite to enable promisee rely upon does fact court promise to evaluate the and its *27 promisor’s promise; the obligations. Similarly, attendant fourth the alleged promise pro- that Gonsalves would be promise is Enforcement the neces- progressive discipline vided with in “fair a sary injustice. to avoid insufficiently and consistent” manner is also Herrick, 337-38, 82 Hawai'i at 922 P.2d at an definite constitute terms of enforceable (citation omitted) (emphases origi- 950-51 in contract. nal). Herrick, In this court defined further promise as “a manifestation intention to

The statement that Gonsalves testified Su- specified act in acting way, or refrain from him, ehisa that made Gonsalves “didn’t justify so in promisee as to made under- worry job[,]” losing have to about [his] must standing that a has commitment been made.” objectively. be viewed It cannot con- Id. (quoting 922 P.2d at 951 Restate- any hypothetical in strued terms of or un- (Second) Contracts, 2(1)). § supra, ment may voiced intentions Suehisa have harbored term, “In elaborating on this the commenta- making promised when the remark. Suehisa promisor tors have said that manifests an ‘[a] job. Gonsalves that he would his not lose if [or she] intention he believes or has reason Although promise the was made to Gonsalves promisee that will infer that believe the completion before the investigation, the [or words conduct.” her] intention his or contingent is that there no indication it was (Second) (quoting Id. Restatement of Con- upon investigation. By that the results of 2(1) b). tracts, supra, § cmt. contracting meaning the behind the state- and, worry manifestation, that didn’t ment “Gonsalves have to promisor’s The there- job” fore, losing promisor’s judged using promise, [his] about Gonsalves could is the denied, standard, 44 Haw. objective relying reh’g rather than intended, (1960). Similarly, P.2d 112 the upon only promisor “[i]f the evi- what (Second) promise as to dence whether enforceable convey. of Contracts Restatement ‘conflicting is will phrase was made admit more explains § that “[t]he 2 comment b inference])] ... is one for than one the issue adopts an exter- 'manifestation of intention’ If, hand, jury. on the other evidence objective interpreting standard nal or assurance,” only “vague discloses rather conduct; expression it means the external legally promise, than a enforceable then the distinguished as from undisclosed intention added.) court must determine the issue as matter (Emphasis intention.” ” Price, (quot- F.Supp.2d at 1226 law.’ objectively, statement Viewed Suehisa’s 621). Soderlun, ing 944 P.2d at worry “didn’t have to about that Gonsalves “promises” pre- all of the were Because job” plain losing his is unconditional. The a package in one instruction3 to sented was meaning of statement Suehisa’s consideration, jury jury for could worry termi- did not have to about Gonsalves relied one the statements did nation, job only not that Gonsalves’s was safe promise.4 not amount to an enforceable being, time or that would not for the Suehisa erroneous, and I instruction therefore time, point at that in based fire Gonsalves judgment would and remand for vacate allegations. solely uninvestigated on Torres’s jury’s consideration of Defendants’ state- nothing promise within the itself There job. ment that Gonsalves would not lose job. Accordingly, that conditions Gonsalves’s judged on promise must be the “external intention])]” expression of Restatement V. (Second) Contracts, supra, § 2 emt. b added). (emphasis argue that Defendants Gonsalves also promissory estoppel not maintain his prove claim because Gonsalves cannot dam-

IV. ages. They urge jury instructions damages promisso- regarding ease, present jury In the determined ry jury estoppel claim to award allowed that, Suehisa, through agent their De- contrary damages” “improper contract representa- fendants had enforceable opposition, Hawaii law. case well tions to Gonsalves. It is established damages maintains that amount that, “[wjhether contract, jurisdiction all claims was As to “conservative.” parties agreement into an not the entered instructions, jury argues question essentially of fact.” Island way proper these were mis- Enters., Directory Co. Iva’s Kinimaka *28 leading. Inc., Haw.App. 940 10 (1993) (citations omitted). such, As the exis- ques- relationship a is a

tence of contractual A. of jury tion for the “for its determination the promissory of concerning estoppel may facts the issue the contractual of The doctrine parties.” modify employment relationship the an that relation between Ferreira v. is See, Star-Bulletin, e.g., 44 terminable will. Haw. otherwise Lord Honolulu a) objection 3. an ment with he would The record indicates that Defendants: that be instruction, however, jury thorough investigation the the provided made to nature and fair of objection Torres; is b) of the unclear. by against him the claims Neldine c) position; that he would not lose his that he subject stated that instruction and; lawyer did not need to obtain a d) and [sic] theory, prevail under this Plaintiff must [t]o progressive provided be he would with following by prove each of the elements discipline in a fair and consistent manner. preponderance of the evidence: First, following made the that Defendants concerning employ- promises to Plaintiff

179 Souder, (Del.2000); v. 399 ployee, 748 A.2d of the form financial in- detriment Co., termination, v. Foote Simmonds Precision Prods. 158 curred as result of the howev- (1992). Lord, prom- (“Although Vt. 613 A.2d er. See 748 A.2d at 400 1278 A damages quantifying during involving ise can be of cases the employ- the course wrongful discharge of employee an at-will is specifically change at- ment does not the problematic, ... [i]t is sufficient to claim relationship will and does not the remove that the discharge would not have otherwise employment relationship from the at-will plaintiff occurred it did and when that the Thus, promise realm. See id. at 1280. result”). incurred financial as a detriment modify may of relationship, the terms the so prevent employer terminating as to from reason, employee specific for a while oth- VI. generally retaining

erwise the at-will charac- relationship, allowing ter of the the The foregoing is with our consistent case discharge employee any recovery or no law. Such a limitation on is envi- reason, (Second) by except specific for the situation that sioned the revised Restatement Contracts, subject supra, § of adopted is which was of the modification. id. See Ravelo, by this court in see Haw. at Nothing suggests about the at-will doctrine Ravelo, P.2d at 887-88. Prior to it with does coexist numerous jurisdiction estoppel promissory had viewed exceptions imposed by modifications and (1932), § under Restatement Contracts law, including promissory estop- law required which had “action or forbearance of pel, depending particular of a the facts definite substantial character.” Id. at modifications, employ- ease.... Even P.2d (quoting at 887 Restatement for an ees indefinite term are still consid- (1932)). § Contracts As noted employees, may ered at-will who dis- court, “[cjhanges Ravelo former charged any number reasons not § 90 are reflected deletion of prohibited by the modifications. requirement the action forbearance induced be of ‘a definite and char- substantial Id. acter,’ recognition ... possibility and a partial enforcement.” Id. B. Ravelo, additionally this court de- Calculating damages in cases such as partial “partic- clared enforcement was

these, however, ais than different matter ularly apt in this situation.” Id. at 201 n. determining damages ordinary in an contract 4, 658 P.2d at 888 n. 4. This ex- court Damages predicated situation. cannot plained that “relief sometimes be limit- earnings, employee gen- future because the damages specific ed to restitution or to can erally still or no be terminated prom- relief measured the extent at all. Han- reason See Treadwell John than isee’s reliance rather the terms Co., F.Supp. cock Mut. Ins. Life unjust promise. Unless there enrich- (D.Mass.1987) that, (stating “[t]he because damages promisor, ment should not promise employment and continued secure promisee in put position than better simply vague too to be under enforceable put performance promise would promissory estoppel *29 the doctrine of (citations omitted). or him[ her].” Id. thereby plaintiffs transform the nature employment at-will employment from to supra, could As noted because Gonsalves “plaintiff period[,]” all, cannot definite recover generally any or no reason at fired damages wages as fu- earnings benefits related to any recovery for future benefits beyond that ac- “put ture services which would position [Gonsalves] would in a better during period by” crue the covered the re- performance promise than would have the omitted). (citations training promised Thus, program plaintiff). the put to him.” Id. as Ravelo, by partial in to Damages still established the em- Gonsalves was limited is, after-acquired in cordingly, the doctrine promise. Accord- performance of Suehisa’s case, question present irrelevant the damages present should the in the case ingly, damages. damages to those “mea- been have limited by the reli- [Gonsalves’s]

sured extent id, ance[,]” ie., damages, “rather reliance VIII. ie., id, by promise[,]” than the of the terms Accordingly, expectation damages. Gon- ease, jury in present the The instruction damages in excess of salves could not recover however, damages did not address reliance had earnings would have realized the he instead, but, expectation damages, suggested promise not ter- kept them Defendants It as fol- in contravention of Ravelo. stated upon allegations him the minated based lows:

harassment. you his If find the Plaintiff under theo- you may promissory estoppel, award

ry of damages, any, put if as the such would VII. position same he would the Plaintiff rely upon “after-acquired the Defendants promises allegedly been the in if forth in set McKennon evidence” rule kept. by made to him had been Defendants Co., Publ’g 513 U.S. Nashville Banner added.) in- (Emphasis wording The (1995). 115 S.Ct. 130 L.Ed.2d 852 did limit award un- struction damages They contend that Gonsalves’s promissory estoppel claim der (under ‘after-acquired evi “would end the on the he suffered reliance detriment doctrine’) when Defendants decided dence nor could promises, indicate Gonsalves [Gonsalves] [their as result terminate than he entitled not recover more would be re- independent investigator, Kras’s Linda] promises kept. to had the been Defendants’ because, original if the termi porte,]” even discriminatory, nation of was Gonsalves Instead, rely appeal’s instruction report sufficient allow Defen Kras’s claims, inas- upon the of the other results anyway. dants to terminate Gonsalves Gon- put much awarded “as would amount salves, hand, argues that other position in the same he would [Gonsalves] “after-acquired has never evidence” rule promises allegedly in if have been adopted upon a in Hawai'i and is based been kept” him had rests Defendants been law, in Em Age Discrimination federal upon damages: if a determination future Act, 4(a)(1), seq., ployment § 2 as amend et jury im- was an determined there 623(a)(1) ed, seq., § 621 et 29 U.S.C.A. was not an plied contract and that Gonsalves that, (1967). Further, argues even employee, promise not to fire Gon- at-will McKennon, must establish under Defendants Thus, earnings. could include future salves [constituting rea wrongdoing that “the expectation dam- receive Gonsalves could discharge] for the was of such son second damages. ages, rather than reliance fact, would, severity employee jury’s verdict. This demonstrated alone grounds have been terminated those special respect form with The verdict time of had the known it at the jury promissory estoppel indicated that the discharge.” prom- “[Defendants] breach[ed] found that majority, Gonsalves, upon Mr. As observed to Mr. which Gon- ise a matter jury spe- has no sex claim as relied[.]” discrimination The indicated that salves law, implied damages regarding was no contract cial this claim were there $1,090,597, of his general damages would the at-will nature were alter however, Thus, $140,000.5 jury, not re- ver- employment. Defendants did returned damages of special Ac- dicts for the amount quire a reason to terminate same Gonsalves. *30 claim, claim, promissory estoppel jury separately amount of discrimination 5. The awarded the $1,090,597 reaching damages implied claim. special contract Prior to for Gonsalves's tor implied the discrimination and contract maintains [should not] that “this court en- claims. promises against public force ... policy.” 165, Majority opinion at 58 P.3d at 1212. Additionally, the instruction did not limit assertion, Contrary majority’s to the howev- any damages to not awarded more than what er, public policy there is no that mandates received, Gonsalves would have had Defen- employer that an an employee terminate who kept promises. dants them in- Because the harassment, and, accused sexual accord- struction did not differentiate between re- ingly, public policy require does not that this sults, jury if the determined that Gonsalves any promises court invalidate not to termi- not, was employee an at-will and if he was employee, nate an such inasmuch as other Gonsalves could an award in receive excess of discipline forms of are any available to cure what he could have received as future earn- violations.6 ings and had benefits he remained in the employment of Defendants. brief, In its amicus curiae ar- the HCRC

It is well jury gues promises established that by erroneous that made Suehisa presumptively instructions are harmful: should not be as a enforceable matter of public policy. explained HCRC, by As instructions, jury “When or the omission harassment, supervisor within the context of thereof, appeal, are at issue on the stan- liability absolute employer imposed, whether, dard review is when read and appropriate but “immediate action is still whole, considered as a giv- the instructions required ... steps to ‘take other neces- insufficient, erroneous, prejudicially en are ” sary prevent (Quot- sexual harassment.’ inconsistent, or misleading.” Hirahara v. (HAR) ing Hawai'i Tanaka, 460, Administrative Rules 462, 830, 87 Hawai'i 959 P.2d 12^46-109(d).) Therefore, § 832, Rule denied, according reconsideration 87 Hawai'i HCRC, to the (citing “[t]o 959 P.2d extent these Craft Peebles, promises 78 Hawai'i 893 P.2d constitute a of an disavowal em- (1995)). “EiToneous instructions ployer’s legal obligation are to take immediate presumptively ground harmful and are a appropriate prevent corrective action to affirmatively appears reversal unless it harassment, they sexual must be treated as from the record as a whole the error public policy.” unenforceable as matter prejudicial.” was not Id. at 959 P.2d Doe, (Citing In re 90 Hawai'i 978 P.2d (citing Co., Equip. Tabieros v. Clark (App.1999).) 85 Hawai'i 944 P.2d HCRC, (1997)). by however, As observed “the supervisor rule on harassment ... does not Hawai'i, University Nelson v. 97 Hawai'i specify employer what must do no- after (2001). jury The supervisor pres- tice” harassment. In the here, regarding damages, instruction was case, promised ent Suehisa Gonsalves that he erroneous, also because the limitations estab would not be fired. Suehisa not did make lished Ravelo were not included therein. any representations disciplinary as to other Therefore, I would remand this case actions that have been “immediate damages issue of also. appropriately] HAR corrective[.]” Rule 12-46-109(d). disciplinary § methods Other IX. were, fact, were available recom- majority objects report. The further to the mended Kreis her interim en- promises report, forcement of Suehisa’s because it she recommended verdict, communication, jury alleged promise had sent a ask- 6. While fourth was ing damages if the for each cause were cumula- promise, option open enforceable for the tive. The court had "[t]he answered that dam- impose progressive discipline, as it ages calculated under each count should be seemingly had indicated and as had been recom- separately. will ensure [c]ourt mended Kreis. Mr. Gonsalves does not receive a recov- double ery.” *31 Living Agreement Au Trust dated unacceptable behav- cable counseled about his “be disciplined 27, 1980; in a to assure that gust ior and manner First Hawaiian Bank Thus, Perry, under the Ryan there’s no reoceurenee.” and Elizabeth as Marie case, of this enforcement circumstances Ryan Joseph John Trustees promises made to Gonsalves would Trust, Rayan Living Marie Revocable legal of [Defendant’s] “constitute a disavowal unrecorded that certain established policy. obligations” public or a violation of 6, 1991, Agreement August dated Trust instrument

as amended restated February 16, 1993, and as further dated X. by instruments dated Novem amended su- upon analysis Accordingly, based 14, 1996; 10, Lola ber 1993 and October I court on pra, would remand this case Gebauer, as Trustee under an unrecord promissory estoppel claim. Agree ed Lola Gebauer Revocable Trust April and subse ment dated entirety by quently its amended in 1982, Amendment dated December Decem Amendment dated and Second Gebauer, 1997; Paul as Trust ber W. Paul Ge ee under an unrecorded W. April Agreement Trust dated bauer subsequently amended entirety De an Amendment dated 8, 1982, and a Amend cember Second 26, 1997; Patricia ment dated December Hufford, Trustee under that certain G. 58 P.3d 1229 Trust of Patri Declaration of Revocable HONOLULU, a AND OF CITY COUNTY May 10, 1982; Hufford dated Rob cia G. municipal corporation State of Trustee under that cer ert W. Hufford Hawai'i, Plaintiff-Appellee/Cross-Appel tain Declaration of Trust of Revocable Cross-Appellant, lee/ May 10, 1982; Robert W. Hufford dated Jr.; Keyes, Edward Burrnett Sakiko Kishimoto, under that certain Trustee ING, Agreement Douglas as keauhou Robert Ka unrecorded Trust known James Lau, Kihune, lani Constance Hee Uichi the Sakiko Kishimoto Trust dated Janu Joyce Plotts, and Nainoa Diane Charles ary Lau; 11, 1989; Barbara Wei Jenni Thompson under the as Trustees Will Lyman Hwei-May Lau; Macharg P. fer of Bernice Pauahi and of the Estate Carlye III, Macharg, Trustee of the Deceased, Bishop, Defendants-Appel Lyman August Macharg P. Trust dated lants/Cross-Appellees, Morel; restated; Marie as Jean Dorothy Nagle Nagel, and Ira Trustees Dorothy Nagel Living Revocable certain unrecorded Trust Under Mary Banning, Trustee of the Catherine Agreement dated November Trust Mary Banning Revocable Catherine 1989; Poag, Ruth John Herbert G. 25, 1979; Agreement dated Trust October Rand, unre Trustee under that certain Brennan, Hope Trustee under Germaine Rand, under corded Ruth G. Trustee that certain unrecorded Revocable Trust Rand that certain unrecorded Ruth G. Hope Brennan dated Au of Germaine May Agreement Trust dated Revocable amended; gust Charmaine Randall, 1986; Rogers Katherine Chan; Dugstad, Man Bruce D. Suc Sui Kennedy certain Revo Trustee Trustee under that Successor cessor