*1
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
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
[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
[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-
sary
injustice.
claim,
to avoid
points
following
to the
state-
ments made
Vice President Suehisa to
Herrick,
337-38,
re
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;
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
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
without notice.”
385-86,
at
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
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
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
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
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).
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
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
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,
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.
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.