*1 empowered dissenting)), courts are to hold due government’s action violates the individual. The law
process rights of an remedy deprivation for the
must afford remedy right, “right” that lacks a right
is no at all. reason, respectfully dis-
For that I must
sent. P.3d 341 LALES, Respondent/Plaintiff-
Gerard R.
Appellant, COMPANY, dba
WHOLESALE MOTORS Group, Johnny Martinez, Automotive
JN Marxen, Sr., Gary Petitioners/De
fendants-Appellees.
No. SCWC-28516.
Supreme Hawai'i. Court of
Feb.
atory comments about his French national origin, and that he was terminated because complained he about the con- alleged duct. Lales state harassment and claims, retaliation federal harassment and re- claims, taliation unlawful termination as against public policy, and breach his em- ployment contract. All of the claims were alleged against each of the Defendants. De- fendants asserted that Lales was not discrim- against during employment, inated that he was terminated because he lied to a customer. *4 granted summary judg
The circuit court
ment in
appeal,
favor of Defendants. On
Appeals
Intermediate Court of
vacated in
part
part,
and affirmed in
and remanded to
proceedings.
the circuit court for further
Co.,
Lales v. Wholesale Motors
No.
(Haw.
ination laws because the administrative Manager approximately Rights Commission hold of the Hawai'i Civil my complaints Despite about his strictly employers liable for the discriminato- I discrimination and harassment ry agents of their conduct Gary to his sales team. I told transferred Finally, we conclude that there employees. opposed I He Marxen that this transfer. regard- fact genuine issues of material were saying, you, you responded by “fuck proffered reasons for La- ing fucker, whether JN’s you French mother then are fired.” pretextual, that Lales termination were les’s my job so I re- I did not want to lose genuine evidence to raise produced sufficient Johnny mained on Martinez’ sales team. fact as to his state and issues of material Johnny on his sales team Martinez While claims, and retaliation federal harassment continued to harass me and discriminate public policy the basis for Lales’s and that protested I the discrimination me. claim is not clear from the record. and harassment and months later was al- *5 lowed to transfer to Carlton Hill’s team. Background
I. Johnny threat- April On 2002 Martinez my At time of this [sic] ened me. background following factual is taken The Johnny just threat Martinez had returned appeal. from the record on suspension threatening a for an elec- from Complaints property. worked on He was trician who A. Discrimination suspended threatening again me. complaint a discrimination Lales filed Johnny again May, In late Martinez JN, supervisor, against his and his Gary I Marxen and threatened me. told Marxen, Equal Employment Oppor- with the Johnny going I Martinez that was to con- (EEOC). tunity Commission a declara- my lawyer. After I threatened to tact alleged complaint, Lales tion attached his lawyer, Johnny a Martinez was contact salesperson employed as a that he was terminated. July Chevrolet from until June JN Shortly Johnny after termi- Martinez’[s] time, alleged During that Lales Joey Demp- I was transferred to nation subject derogatory remarks that he was Joey Dempsey sey’s sales team. was a origin French national based on his Johnny my first friend of Martinez. On Marxen, supervisors, supervisor other Joey Dempsey me day on his team told example, alleged the For co-workers. going get me fired. I was that he was following: days terminated about 3 later. Marxen, Manager, Gary the General Sales on June I was terminated ], Frenehyt he wanted that called me protested, I my business card. name on a “determination as to The EEOC issued daily “Frenchy” a however I was called (EEOC subject charge” the merits of Marxen, by Gary supervisors basis other Determination). The EEOC determined Gary frequently Marxen and co-workers. Lales was that it was unable to conclude that bastard”, and to me as a “french referred opposing dis- discharged retaliation my country because go told me to back to workplace, in the but that “there crimination people. not need French America does to believe that [JN] reasonable cause [was] of his against [Lales] because
(cid:127)discriminated Martinez, also transmit- Johnny origin.” national The EEOC Gary Marxen told HCRC. complaint ted the to the started at about the same salesperson who
337 subsequently The HCRC issued Lales a Marxen.5 Marxen asserted that the EEOC Right “Notice of Dismissal and to Sue” letter Right Determination and the to Sue Letter Letter). (Right to Sue Right to Sue did not mention or refer to Marxen as a Letter informed right Lales of his to “file a party, nor did Marxen receive notice that he private against lawsuit Respondent in the party was a complaint. In the alterna State [e]ircuit [e]ourt[.]” Hawai‘i, citing tive and Maizner v. State of Education, Department F.Supp.2d Proceedings B. Circuit Court (D.Haw.2005), Marxen asserted that chapter precluded filing Lales filed civil Lales from complaint in the circuit against against court suit subsequently Defendants. He individuals. complaint, filed an amended asserting six summary Attached to Marxeris motion for (COA) causes of action Defendants: declaration, judgment was his in which he (1) “discriminatory acts” in violation of Ha- stated, alia, inter that he was JN’s General (HRS)
wai'i Revised Statutes chapter 378 Manager Car Sales and that in- his duties (COA (2) claim); 1 or state harassment retal- “hiring cluded firing personnel, of sales iatory discharge in violation chapter of HRS personnel evaluation of sales managing 378 because Lales filed a discrimination com- personnel.” sales Marxen stated that Lales (COA (3) plaint claim); 2 or state retaliation subject was not to discrimination or retalia- (COA breach of employment contract tion based on origin, national Lales was claim); employment contract unlawful transferred from Martinez’s sales team be- (COA against public termination policy as conflict,” “personality cause of a and Lales claim); (5) public policy “discriminatory had any complaints not submitted written acts” in violation of section 703 Title VII of complaints made oral alleging discrimi- Rights amended, the Civil Act of nation or harassment. Marxen further stat- (COA U.S.C. 2000e-23 5 or federal harass- ed that Lales referred to himself as claim); ment retaliatory discharge for “Frenchy,” and encouraged asked and others opposing Defendants’ violation to do the same. Marxen also stated the 704(a) VII, of section of Title 42 U.S.C. following: *6 2000e-3(a)4 (COA 6 or federal retaliation claim). 8. Lales received his [] termination no- missing tice on June 2002 for a summary
1. judg- Marxen’s motion for mandatory meeting sales and lack of ment Thereafter, production in sales. La- [ ] Marxen summary judg filed a motion for approached pleaded keep les me and to alia, argued, ment and inter employment promising that Lales did his he could im- Right against not obtain a prove figure. to Sue Letter upon his sales Based his 2000e-2(a)(l) provides: agement 3. 42 controlling U.S.C. apprenticeship committee training retraining, including or other or on- (a) Employer practices the-job training programs, to discriminate employment It practice shall be an unlawful individual, against any organiza- or for a labor employer— for an (1) against any tion to discriminate member there- discharge any to fail or refuse to hire or to applicant membership, of or for because he individual, against or otherwise to discriminate opposed any practice has made an unlawful any respect compensa- individual with to his employment practice by subchapter, this or tion, terms, conditions, privileges employ- or testified, charge, because he has made a assist- ment, race, color, because of such individual's ed, participated any or manner in an investi- sex, religion, origin[.] or national gation, proceeding, hearing or under this sub- chapter. 2000e-3(a) provides: 4. 42 U.S.C. (a) making charges, testify- summary judg- Discrimination for 5.Martinez also filed a motion for ment, ing, assisting, participating arguing or in enforcement that Lales failed to exhaust his proceedings by obtaining Right administrative remedies a employment practice It shall be an unlawful to Sue Letter Martinez. The circuit court Martinez, against any granted summary judgment for an to discriminate in favor of applicants employment, ruling his challenged appeal or for and this was not employment agency, joint for an labor-man- on certiorari. “fucking to me as ... Marxen referred the termi- 5.
representations, I withdrew bastard,” “Frenchie,” de- made French nation notice. peo- French rogatory remarks about to [customers] Lales sold a vehicle [ ] 9. my “beat told ... Martinez to ple, conditioning but did not have air that ass,” made remarks French fucken represented [custom- Lales [] people. I was also sub- about French with air the vehicle did come ers] ancestry by jected [] conditioning. my employees at Martinez and other 24, 2002, Lales’[s] termi- [ ] 10. On June During my work at workplace .... an investi- nation was reinstated after car, [JN], my placed feces on someone was told gation [ ] revealed that report made. police was for which not have air vehicle he sold did my super- immediate Martinez was [ ] 6. misrepresented to conditioning but he “French and referred to me as visor it did. The termi- the customers that Pieu,” fries,” “Pepe Le I was told changed to reflect notice was nation stink, just French women are I date 2002 termination the June whores, whimps [sic]” “French are lying as and reason for termination I derogatory remarks. asked other a customer. because of Mar- [] be transferred attached to exhibits were also Various me which in- tinez’s behavior towards summary judgment. motion for Marxen’s cluded threats. Response Exhibit D was Lales’s
Attached as Admissions, Request to Defendants’ participate in [a] I was told I could that, employed while which Lales admitted however, show, stopped this was radio JN, “Frenehy” he used the nickname did not who said he [] Marxen himself, himself referring to referred to when my on the radio want French accent documents, and he “Frenehy” in written cars. to sell American complaints of did not submit written or harassment co-workers discrimination reasons, I terminated for false 12. was national ori- management upon based enough that I did not sell specifically gin. The sales vehicles. This is untrue. motion Exhibit E to Marxen’s Attached as I did not have the show that statistics judgment copy summary my at the time of termi- lowest sales Report Termination dated June nation. company from the
which Lales was dismissed I was terminated for I was not told meeting—6/17/02” and training for “missed did not contain selling a truck which as Exhibit F production.” Attached “lack of I did conditioning air to a customer. *7 Termination copy of the June was a notice ... not see the termination subsequently re-dated Report that had been deny sign that notice. I and did not additional com- and that had June the truck had that I told the customer Car and the Used ments: “lied to customer conditioning. air condition- Manager[ causing us to install air ] terminated for not 14. I was told I was ing[.]” However, I meeting. was attending a meeting and did not aware of a sales opposition to Lales filed a memorandum concerning receiving notice not recall Lales conceded Marxen’s motion. any- meeting. I have not known this individually liable held Marxen could not be for not attend- body to be terminated VII, to HRS pursuant under Title but ing meeting. a sales law, he §§ and Hawai'i case 378-1 and 378-2 terminated, I com- and retalia- I was to file discrimination 15. Before was allowed I did individually. orally Marxen that against plained [ ] Marxen to complaints tion made con- appreciate the remarks opposition not to the memorandum Attached stated, ancestry. I com- declaration, cerning my also he in which was Lales’s others. my co-workers and plained to inter alia: sought attorney I even advice from an and numerous exhibits. The dec- ... about the hostile larations and exhibits work environ- set forth a version of the work environment and the ment and anti-discrimination on the events that led to Lales’s termination that differed ancestry. from basis of the facts set forth in Lales’s declaration. subsequently granted The circuit court Several individuals declared that Lales intro- summary judgment in favor of Marxen. The himself, requested duced that he be that, regard circuit court stated to the called, by “Frenchy.” the nickname Marx- federal discrimination and retaliation claims son, JN, en’s Manager Used Vehicle for (COAs 6), 5 and Lales conceded that suit Lales, specifically declared that he asked be- against “impermissible.” individuals was As fore couple, Lales sold the truck to the to COAs the circuit court determined whether Lales had couple informed the Right that Lales did not receive a to Sue conditioning. the truck did not have ah- La- Letter Marxen because Marxen was responded les that he told the customers that right not mentioned in the HCRC’s to sue the truck did not come conditioning. with air letter. Marxen, According to the declarations of two Managers, deposition Assistant Sales and the summary judgment 2. JN’s motion for husband, couple day of the returned the JN filed summary also a motion for following purchase their and demanded that judgment. argued JN that it was entitled to provide conditioning JN air based on Lales’s summary judgment on Lales’s retaliation assurances. (COAs 6) claims 2 and because there was a Q Attached as Exhibit to JN’s motion for strong inference that JN had no discrimina summary judgment was Lales’s amended re- motive, tory produce any and Lales could not admissions, sponse request for where- engaged protected evidence that he was in a that, employed by Lales admitted while activity.6 argued JN also that it was entitled JN, any complaints he did not submit written summary judgment to on Lales’s discrimina regarding people to JN calling him (COAs 5) tion claims 1 and because Lales Gerard, “Frenchy” instead of Alex or and he provide failed to evidence that he was sub requested to be transferred to another sales jected physical to unwelcome verbal or con personality team because he had a conflict origin, duct based on his national Lales did with Martinez. procedure filing not follow JN’s harass opposition Lales filed a memorandum in complaints, ment and there was no evidence summary judgment. JN’s motion for Lales any injury that Lales suffered because of the argued prima that he established a facie case alleged discriminatory Finally, actions. JN retaliatory termination and that he raised summary asserted that it entitled supported facts that an inference that JN’s judgment on Lales’s breach of contract claim proffered pre- reason for his termination was (COA 3) knowledge because it had no summary judg- text. Lales also asserted that alleged discriminatory Although conduct. present- ment was warranted he because requested summary judgment JN as to all regard ed material issues of fact in to his COAs, provide arguments did not Specifically, claim of harassment. support summary judgment public on the declaration, pointed to his own which he (COA 4). policy claim subjected derogatory asserted that he was summary JN attached to its motion ancestry and slurs remarks about his French *8 judgment origin by employees. the declarations of several of and JN In its national (b) infra, employer subjected employee 6. As further Title VII and his her to action; (c) protect employment 378-2 from discriminato- an adverse a causal ry protected activity retaliation. As this court noted in link existed between the Schefke action; (2) Agency, Reliable Collection 425- the adverse the burden then shifts to (2001), legitimate 69-70 retaliation claims the defendant to articulate a nondis- decision; subject shifting analysis, criminatory are to a burden reason for its plaintiff plaintiff which: must first establish a burden then shifts back to the to demon- prima by showing facie case of retaliation that strate that the defendant’s offered reason for its (a) engaged protected activity, pretext he or she was in a action was for a motive. addition, presented [the customer] 26.Other told argued that he ma- conditioning Truck had air damages that the of fact that he suffered terial issues it and were not fired. punitive awarded dam- and that he should be outrageous” ages “egregious [and] for JN’s Lales also attached numerous exhibits to the dismissal conduct. Lales did not contest summary opposition to JN’s motion for against breach of contract claim JN. judgment. Attached as Exhibit were ex- deposition. cerpts from Lales’s Lales stated opposition to Lales’s was his dec- Attached complained approximately he to Marxen laration, relayed substantially which facts similar ted summary judgment. clared: plained French F* He [] to those in the declaration opposition late Marxen told me “You n n n n * told Bastard, get May [] and Martinez to Marxen’s motion for [7] 2003,ra Martinez to “beat his French Ass”. In [ ] Marxen about addition, out I verbally my he Lales de- Fucking submit- office”. com ward was me, threaten me The one month before he was terminated that he A To retaliate Q. retaliating against following “really him, specifically, would—the What pick against you? way on me was the tired” Martinez’s he would almost on a physically did Martinez do to retaliate conversation occurred: only way to me on a “the go way way Martinez could me, I was differ- behavior to- daily he treated daily boneyard Martinez basis.” basis I ent. I was different in the bunch. 23, 2006, within a month 24. On June mean, person. I a different I was Marxen, complained I I [] after mean, French, I’m and I different. was reasons, spe- terminated for false was work, pick my So he couldn’t on me at cifically enough I did not sell attendance, my pick on so he would vehicles Marxen. This is un- [] way me the I am. I’m French. I true. The sales statistics show that Q. anything you there else told [] Is at the did not have the lowest sales Martinez? my time of termination. I was told I Oh, I told Marxen that all this [] A. attending terminated for not a was Frenchy thing already, just I ... was However, meeting. I was not aware up stop. it. It had And fed meeting and did not recall sales that, only only Marxen didn’t [] not receiving concerning notice this meet- me, abuse, daily tolerate this abuse to anybody ing. I have not known to be encouraged he it. attending not terminated for sales Q. you questioning [ ] And told Marxen that? meeting. After these reasons, changed Marxen his mind [ ] A. I did. and allowed me to continue to work. Q. anything you [] Is there else told 24, 2006, I 25. On June was terminated Marxen? selling told to leave for a Truck right time A. Yes. I don’t recall at this conditioning in it. without air This now, good but we had a 20 minutes. sign I reason is false. did not see nor present. Martinez was notice dated June the termination Q. present? Martinez was [ ] deny I 2006. I told customer Yes, he was. A. conditioning. the truck had air say? Q. Okay. [ ] And what did Martinez agreement sales does list bastard, you Martinez French conditioning. [ ] The Blue A. said
Truck had air
F-you,
F-you. And ...
given
F-you,
F-you,
[the
Book document
custom-
is”,
told Martinez to kick this
[]
Truck
sold “as
Marxen
show the
er]
French bastard ass.
conditioning.
am
without
*9
2002;
subsequent
to his termination in 2006
in
references
was terminated
his reference to
Lales
appear
complaining
be incorrect.
verbally
to Marxen in 2003 and
Q. At meeting?
only
Defendants contended that “the
evi-
produce
support
dence
could
[Lales]
Yeah,
A.
meeting
at that
one month be-
contentions was
conflicting testimony
his own
got
fore I
retaliated^]
hearsay.”
and inadmissible
Defendants not-
deposition,
In his
Lales also discussed
discrepancies
ed “numerous
in
testi-
[Lales’s]
team,
working on Martinez’s sales
and then
mony[.]”
that,
argued
Defendants also
con-
Tucker,
stated that Paul
manager,
desk
trary
assertion,
to Lales’s
chapter
transferred Lales to another team after La-
does not mandate that an
be held
complained
les
about Martinez. Lales stated
strictly
supervi-
liable for harassment
its
that he told Tucker that Martinez was dis-
sors.
argued
Defendants further
that
him,
criminating against
him,
harassing
properly granted summary
circuit court
physically threatening him.
judgment because there was no breach of
granted
The circuit court
JN’s motion and
public policy
contract and there was no
viola-
subsequently entered
Judgment.
its Final
tion.
The circuit
subsequently
court
filed an
May
On
the ICA issued a memo
Judgment,
Amended Final
entering judg-
opinion
randum
vacating
part
in
and affirm
ment
in
against
favor of Defendants and
ing
part
in
the circuit court’s Final Amended
Lales on all of
appealed
Lales’s COAs. Lales
Lales,
Judgment.
*1,
2012 WL
Judgment.
Amended Final
In regard
grant
*18.
to the circuit court’s
summary judgment
in
favor of Marxen on
Appeal
C.
ICA
(state
COAs 1 and 2
harassment and retalia
Opening
Lales’s
points
Brief raised five
claims),
tion
the ICA concluded that
error,
three of which are relevant
to his
Right
HCRC’s
to Sue letter was sufficient to
application.
argued
Lales
the circuit
authorize
against
file suit
Marxen.
granting
court erred in
summary judgment
addition,
Id. at *9. In
citing
plain
lan
in favor of Marxen because Lales had a
guage
of HRS
378-2 and the definition of
Right to Sue Letter that allowed him to file
“employer”
in HRS
the ICA deter
suit
discriminatory
Marxen for his
employee,
mined that “an individual
who is
actions. Lales also contended that the cir
agent
of an
can be held individ
cuit court
granting summary judg
erred in
” Lales,
ually
‘employer.’
liable as an
ment in favor of JN because the circuit court:
Moreover,
WL
at **10-12.
the ICA
(1) viewed
light
the evidence in the
most
employees
subject
noted that
are
to individu
JN, contrary
favorable to
legal
stan
they
al
prohibited
when
aid and abet
viewing
dard of
light
evidence
most
discriminatory practices, as set forth in HRS
non-moving party;
favorable to the
“erro
378-2(3).
Id. at *10. The ICA then cited
neously ruled that when the same actor is
approval
the federal district court's de
responsible
hiring
both
firing
of an
Dep’t
cision
Sherez v. State
Haw.
employee,
strong
inference arises that
Educ.,
(D.Haw.
F.Supp.2d
1146-48
motive”;
there
discriminatory
was no
2005),
“persuasive”
because Sherez
offered
erroneously applied the affirmative defense
employees
rationale that
could indeed be
Raton,
in Faragher
City
set forth
v.
Boca
individually
discriminatory
held
liable for
775, 118
2275, 141
524 U.S.
S.Ct.
L.Ed.2d 662
conduct. Id. at *11.
(1998), to Lales’s state harassment claim.
Lales,
Specifically,
12-46-175,
citing
HAR
The ICA also cited cases from this court
strictly
asserted that JN was
liable for the
“support
the conclusion that
un
actions
its
em
der
378-2 extends to
ployees.
Lales,
capacity.”
their individual
2012 WL
Brief,
Answering
In their
ar-
(citing Steinberg Hoshijo,
Defendants
at *12
gued
(1998);
properly granted
the circuit court
88 Hawai'i
in individual his (retaliation claims), ICA stated and 6 therefore, in the circuit court erred and that, of the conflicting evidence given the summary judgment in favor of granting light in the which must be viewed parties, Lales, 2012 WL COAs 1 and Marxen on n Lales, there was sufficient favorable to most 1624013,at *18. prima facie case of to establish a evidence court’s the circuit The ICA then addressed suffi- presented that “Lales retaliation and in favor of JN. summary judgment grant of genuine issues of evidence to establish cient at nn 13-18. With (state regard to COA Id. prof- regarding whether JN’s material fact claim), that the ICA determined termination were reasons for Lales’s fered 12-46-175, employers are under HAR at **16-17. pretextual.” Id. supervi strictly vicariously liable when and that the cir- ICA further determined Lales, employee. 2012 WL sor harasses judg- granting summary erred in cuit court The ICA then dis at **13-15. policy (public on COA 4 ment in favor of JN Faragher, in forth cussed the rule set claim) given not a fair because Lales was Id. at **14-15. applied to Title VII claims. JN did opportunity respond inasmuch as raise that an The ICA stated this claim in its motion for sum- not address only defense when Faragher affirmative Additionally, mary judgment. Id. at *18. is taken tangible employment action no La- that “to the extent that the ICA noted the de employee, and noted that against an policy derived public 4 is based on les’s COA (1) employer exer requires that: fense [cjhapter it provisions of HRS from the prevent and correct cised reasonable care However, the ICA Id. would be barred.” (2) behavior, and any harassing that because the substance determined advantage of unreasonably failed to take “unclear,” given public policy claim was opportunities provid preventive or corrective further remanding the case for that it was *14. The ICA by employer. Id. at ed the circuit it would also vacate proceedings, alleged harassment that because the stated summary judgment in favor grant of court’s in Lales’s dis did not culminate Marxen of JNastoCOA4./d Faragher affirmative defense did charge, the the circuit Accordingly, the ICA vacated further apply. at *15. The ICA Id. Judgment Final to the ex- court’s Amended requirements set that because the stated summary judgment entered tent case, Faragher were not met this forth in Marxen on COAs favor of whether the was no need to address there of JN on COAs judgment favor entered apply under HRS defense would affirmative 2, 4, 5, Id. The ICA affirmed and 6. Finally, the ICA stated chapter 378. Id. causes Judgment Final on all other Amended Faragher. applying the circuit court erred remanded the case Id. The ICA of action.8 Id. proceedings. further to the circuit court for Id. that when the The ICA then determined Judgment Appeal on on light favor- The ICA filed its in the most
evidence was viewed timely filed an Defendants Lales, July court erred in the circuit able to certiorari, and raise application for writ summary judgment in favor of JN granting following questions: harassment claims on the state and federal (COAs 5), grave “the matters set errors of fact 1 and because Did the ICA make I. (1) largely ignoring ... the evidence established forth in Lales’s declaration [Defendants], only presented genuine issues of material there were in the “evidence” viewing [Lales’s] Id. at **15-16. regarding claims[.]” fact These grant of Defendants. Id. and costs in favor court's fees affirmed the circuit 8. The ICA also challenged appeal to Martinez on summary judgment in favor of: are not determinations 6; COAs; (2) through thus, COAs 3 they all Marxen on fur- are not discussed court and this addition, ICA JN on COA 3. Id. ther. attorney’s award of circuit court’s vacated the *11 (2) him; 406, light 413, 1165, relying most favorable to 126 Hawai'i 271 P.3d 1172 (2012) conflicting on “evidence” (citing Valley City and uncorrob- Nuuanu Ass’n v. & Honolulu, self-serving orated County statements submit- 119 Hawai'i 194 of declaration; 531, (2008)). Furthermore, ted [Lales] a sham P.3d 537 (3) considering and in- [Lales’s] other [Sjummary judgment appropriate if the admissible evidence^] pleadings, depositions, answers to inter- file, rogatories and together admissions on concluding II. Did the ICA err in affidavits, any, with the if show that there employees individual can be held lia- genuine is no issue as to material fact ble as an under HRS 378- 2(1) moving party and that is entitled to and in reliance on Sherez v. Educ., judgment as a matter of law. A fact is [Dep’t] State Hawai'i 396 of of proof material if (D.Haw.2005), of that fact would have F.Supp.2d 1138 which the effect establishing refuting of one has not been followed the [United the essential elements of a cause of action Court] States District since the Ninth parties. or defense asserted The contrary Circuit ruled to the in a light evidence must be viewed in the most memorandum decision in Lum v. Council, non-moving party. favorable to the County Kauai oth- 358 Fed. words, (9th 860, 2009)? er we must view all of the evidence Appx. [] Cir. and inferences drawn therefrom in the by ignoring III. Did the ICA err a sub- light party most opposing favorable to the body stantial of federal law to the the motion. contrary when it concluded that the 413-14, (citation Id. at Faragher P.3d at 1172-73 affirmative defense cannot omitted). apply supervisor’s where a harass- tangible employ- ment culminates in Statutory Interpretation B. ment action? “Statutory interpretation ques is a
IV. Did the ICA err when it concluded
Ins.,
tion of law reviewable de novo.” First
that [Lales] had submitted sufficient
(citation
pel, However, or otherwise argues §§ that HRS 378- Lales any 378-2(2) because the individual has 2(1)(A) individual impose on an any practice forbidden this opposed “employer,” and that HRS 378-1 defines testified, part complaint, filed a or or has “any person having ... one “employer” an as any respecting proceeding assisted employees” “any agent of such or more discriminatory practices prohibited Thus, argues Marxen— person.” part; this agent of JN—is considered an “em- purposes of HRS and is any person employer, ployer” whether an For aid, abet, incite, not, subject personal liability under therefore employee, or 378-2(l)(A) 378-2(2). num- any §§ A compel, doing coerce the of the HRS adopted Lales’s discriminatory practices forbidden ber of federal courts have concluding that a reading of HRS 378-1 in part, attempt or to to do so[.] this " individuals, and 11. 'Person' means one or more 378-2 has since been amended to, includes, partnerships, limited asso- but is not ways appeal. relevant to the instant that are not ciations, legal representatives, corporations, 793-95; 1, § 2 Laws Act See 2009 Haw. Sess. receivers, trustees, bankruptcy, or the trustees any 4;§ 2011 Haw. 2011 Haw. Sess. Laws Act political of its subdivisions.” State or 206, § Act Sess. Laws § 378-1. supervisory employee, Clark, “agent” as an of his or Sang See Ah Mook v. (2013) (“[W]e statutory “employer”
her
is a
who
must
individually
statutory language
be held
read
liable for his or her
in the
context
See,
conduct.
entire statute and construe it in
e.g., Black v.
a manner
Honolulu,
City
purpose.”
consistent with
County
(quotation
&
its
F.Supp.2d
omitted)).
(D.Haw.2000);
marks
regard,
and citation
1056-57
Hale
this
Publ’ns, Inc.,
elsewhere in HRS
F.Supp.2d.
legislature
378-2 the
1226-29
(D.Haw.2006);
explicitly
unambiguously
provided
Sherez v. State
Dep’t
Haw.
Educ.,
employee liability,
doing
recognized
and in
so
F.Supp.2d
1146-48
(D.Haw.2005).
“employers”
“employees”
are dis-
categories.
tinct
Specifically,
legislature
respectfully reject
We
that interpretation
imposed
aider-and-abettor
on em-
“employer”
under HRS
378-1.
In our
378-2(3),
ployees
in HRS
which makes it
view,
legislature’s
“agent”
inclusion of
discriminatory practice
an unlawful
“[f]or
definition of
did
signal
person,
employer, employee,
whether an
impose liability
intent
on individual em
*13
not,
aid, abet, incite,
to
compel, or coerce the
below,
ployees.
history
As set forth
the
of
doing
any
of
of the
practices
employment
Hawaii’s
discrimination law and
by
part,
forbidden
attempt
this
or to
to do
legislature’s
the
purposes
stated
in enacting
Thus,
so.”
as the United States District
give
that law
legisla
no indication that the
White,
Coui’t observed in
legislature
“the
impose
ture intended to
liability on individual
clearly knew
employees
how to include
within
Instead,
employees.
legislature’s
the
use of
scope
statute’s
and its failure to do so
“agent,”
the word
“simply represented an
explicitly throughout
suggests
the statute
expression
respondeat supe
unremarkable
of
only
are
held liable for infrac-
discriminatory personnel
rior—that
actions
378-2(3).”
§
tions
under HRS
322
by
taken
employer’s agent may
an
create
F.Supp.2d
(quotation
at 1114
marks and cita-
employer.”
for the
Lissau v. S.
omitted).
tion
Serv., Inc.,
(4th
177,
Food
159 F.3d
180
Cir.
Moreover,
history
employ-
of Hawaii’s
1998)
omitted)
(quotation marks and citations
law,
ment
legislature’s
discrimination
and the
(analyzing analogous provision under Title
purposes
law,
enacting
stated
in
contain
Act).12
Rights
VII of the Civil
no indication
legislature
whatsoever that the
Because the
employer
definition of
impose liability
intended to
on individual em-
ambiguous,
HRS
378-1 is
this court has
378-2(3).
ployees
other than in HRS
To
disposal
various tools at its
to determine its
contrary,
appears
the statute
to have
(1)
meaning, including:
examining the con-
patterned
been
employ-
on federal labor and
words,
ambiguous
text with which the
phras- ment
pro-
discrimination laws which do not
es,
may
compared,
and sentences
be
in order
liability.
vide for individual
(2)
to ascertain their
meaning;
true
consider-
1963,
legislature
The
enacted Act
in
180
ing
law,
spirit
the reason and
and the
employ-
(1)
which made it unlawful:
an
“[f]or
legislature
cause which induced the
to enact
hire,
er
employ
to refuse to
or
or to bar or
it, in order to
meaning;
discover its true
and
individual,”
discharge
employment, any
from
(3) rejecting every construction which leads
or
against any
“to discriminate
individual
1-15;
absurdity.
to an
See HRS
Estate of
terms,
compensation or in the
conditions or
Marcos,
59, 68,
Roxas v.
race, sex,
privileges
employment”
of
based on
(2009).
598,
P.3d
color,
age, religion,
ancestry (predecessor
378-2(l)(A));
We first note that
any
section 378-1
to HRS
“[f]or
employer,
isolation,
should not be
viewed
organization
but rather
employment
labor
evaluated in the context of the
agency
discharge, expel,
entire statute.
to
or otherwise dis-
12. As the
stated, however,
Indus.,
Ellerth,
742, 764,
Supreme
Court has
ton
Inc. v.
524 U.S.
2257,
principles
(1998) (same);
"such common-law
not be trans
S.Ct.
criminate has any practice opposed “employer,” forbidden this Act a definition of which was defined complaint, “any person persons he has filed a testified having or because as one or more respecting proceeding employment, [including] any person or assisted in his employment practices discrimination directly acting agent as an of an Haw. prohibited under this Act.” 1963 Sess. indirectly.” 1964 Haw. Sess. Laws Act 378-1). § 1 (emphases Laws Act add- at 223-24 (predecessor to As at 378-2(2)). ed) (predecessor to here, legislative history indicates relevant purpose provide “to that the the bill was legislature adopted Act 180 When the ambiguous for certain terms used definitions “employer.” separately it did not define Act,” Rep. in said H. Stand. No. Comm. language apparent, It based on set Journal, “in order to in 1964 House at above, sought only legislature forth that the legal administrative difficulties.”13 avoid proscribe discriminatory harassment to Comm. in 1964 Rep. H. Stand. No. organizations, employers, retaliation labor Journal, House There is no indica- interpreta- employment agencies. This however, legislative history, in the tion history legislative tion is confirmed by defining “any person an hav- statute, purpose which states persons ing employment, one or more in his to the bill was make it “unlawful an [including] any person acting agent as an employ, pay refuse to less employer,” legislature sought also discharge wages employees, than other coverage the law’s harassment extend of, employee because otherwise discrim- or to provisions and retaliation to the acts of indi- race, person by inate reason of his employees. expansive vidual such an Indeed color, sex, origin, national or because such *14 “employer” definition of would be at odds ages 40 to individual is between the of 65 180, plain language with the Act which the of years age.” Rep. H. Comm. Stand. No. year legislature just had enacted earlier. 31, Journal, (emphasis in 1963 House at 591 180, § Sess. 1 at 224. 1963 Haw. Laws Act added); Rep. see also H. Stand. Comm. No. (same); 80, Journal, in 1963 House at 607 S. 1981, legislature again In the amended the 399, Rep. in 1963 Stand. Comm. No. Senate 94, “employer” Act to read definition via Journal, (same); at 810 S. Stand. Comm. currently it does. Haw. Sess. Laws 1981 573, Journal, Rep. in at No. 1963 Senate 94, legislature § 2 at Act 184-85. The stated in proscribing There is no indication that amending purpose in the bill that its the by employers, retaliation the “employer” definition of was “to extend cov- the con- legislature sought also to address I erage chapter 378] of Part to [HRS employees. duct of individual employees govern- of the and local State Id, contrast, legisla- purpose 1 In at the same time the at 184. This ments[.]” history, employers legislative ha- ture made it unlawful for to further the individual, that, 1963, any legislature against rass or retaliate the which indicates the legislature explicitly it was unlaw- intended “to State and its stated that had exclude the “any person political subdivisions from the definition of ful for whether employee not, aid, abet, incite, compel provide govern- ‘employer’ and instead to to practices against em- doing protection or coerce the of the ment workers Act, attempt separate do so.” ployment forbidden the or to to discrimination under 180, 549, in Rep. § 1 at H. Stand. No. 1963 Haw. Sess. Laws Act 224 law.” Comm. added) Journal, Because the (emphasis (predecessor HRS 1981 House at 1166. 378-2(3)). words, legislature legislation, legislature adopted In never such other legislature sought “[provide] the con- the same plainly proscribe understood how to when State employees, protection duct of individual discrimination under so, [], already explicitly public employees as is intended to do it did so law private unequivocally. provided to in the sector.” 442, Rep. defining "employer," legislature No. in 1964 inten- visions. S. Stand. Comm. Journal, political tionally subdi- at excluded the and its Senate 504-05. state
347
Id.;
653,
[NLRA].”);
Rep.
see also S. Stand. Comm.
No.
eled on those of the
Albemarle
Journal,
1195;
405, 419,
Paper
Moody,
1981 Senate
S. Stand.
422
Co. v.
U.S.
Rep.
Comm.
No.
in 1981 Senate Jour-
S.Ct.
(noting
348 ease, having ... one “any person presented expressly
as
or more em
the issue
this
ployees,”
42
noting
parties
whereas
U.S.C.
2000e defines
dispute
[did]
that
“[t]he
person
“a
...
employer as
who has fifteen
Steinberg
agent
that Dr.
was
the Clinic
employees,”
legisla
the fact that the
more
‘employer’
and therefore an
as defined
employers
sought
ture
to reach
with as few
§HRS
at
n.
378-1.” Id.
960 P.2d at
employee
as
does not
one
demonstrate
n.
1226 10.
sought
impose person
also
legislature
Teague,
Hawai'i
Sam
employees
al
individual
as “em
Shaw,
complainant,
a female
Yvette
378-2(l)(A)
ployers”
§§
under HRS
and 378-
378-2(l)(A)
filed a claim under HRS
2(2).
contrary,
crafting
chap
To the
HCRC, alleging
discrimination because
legislature
ter
it is clear that the
knew
of her
claim named
sex. Shaw’s
both Sam
proscribe
how
the conduct
of individual
Ltd.,
Teague,
president
and its
and sole
expressly
employees and did so
when that
Teague, and this
stockholder Sam
court re
above,
was its intent. As noted
HRS 378-
both, collectively,
ferred to
as “Employer.”
2(3)
employee
it unlawful for an
makes
hearing,
After a
ease
contested
the HCRC
aid, abet, incite, compel,
or coerce
dis
affirmed
officer’s
hearings
findings
criminatory practice. The
of this
inclusion
conclusions, finding
Employer
had en
supports
subsection
the conclusion that the
gaged in discriminatory practices.
Id. at
legislature
impose personal
did not intend to
274,
349
over,
involved discrimination
join
claims
leads us to
the other circuit courts and
Schefke
owners,
and its
and not
supervisors
conclude that
are not liable in
employee,
an individual
as is the ease here.
their
capacities
individual
for Title VII viola
415,
Id. at
32 P.3d at
Accordingly,
our
tions.”);
Williams,
898,
Haynes v.
88 F.3d
holding that an
employee
individual
is not
(10th Cir.1996) (“[W]e
901
agree with the
“employer”
liable as an
§§
under HRS
378-
that,
majority
whole,
view
taken as a
2(1)(A)
378-2(2)
does not conflict with
language and structure of amended Title VII
precedent.
our
legislative
continue to reflect
judgment
statutory liability
that
appropriately
borne
Finally, we note
generally,
that
by employers, not
supervisors.”);
individual
ambiguous
the case of
statutory language,
1391,
(D.C.Cir.
Gary
Long,
v.
59 F.3d
1399
agency’s interpretation
“an
gov
of its own
1995) (“[W]hile
supervisory employee may
erning
requires
statute
this court to defer to
joined
party
be
as a
defendant in a Title VII
agency’s
expertise and to follow the
action,
employee
must be viewed as
agency’s construction of the statute unless
being
capacity
agent
sued in his
as the
palpably
construction is
erroneous.”
employer, who is alone liable for a violation
Co.,
Employees
Gillan v. Gov’t
Ins.
119 Ha
VII.”);
109,
Co.,
of Title
114,
(2008).
1071,
wai'i
Grant
Lone Star
21
1076
(5th
(“[W]e
Here,
649,
Cir.1994)
F.3d
interpreted
the HCRC has
conclude
the defini
tion of
“employer”
under
individuals who do
qualify
HRS
378-1 to
not otherwise
include supervisory employees.
general
as an
See
cannot be held liable for a
Niimi,
VIL”).
ly
Moreover,
Santos v.
No. 92-001-E-SH breach of title
since its
(HCRC
1992)
4,
Nov.
(Hearing
inception
Examiner’s
employment
Hawaii’s
dis
Fact,
Findings of
Conclusions of Law and
proscribed
crimination law has
individual em
Order),
(HCRC
Recommended
adopted by
ployee
only
conduct
to the extent that
1993) (Final
Order);
Jan.
Decision and
aids, abets,
incites,
compels, or
Inc.,
Cederquist,
Tseu v.
No. 95-001-E-R-S
discriminatory
coerces
conduct. HRS
(HCRC
1996)
Mar.13,
(Hearings Examiner’s
378-2(3).
above,
As
there is no
Fact,
Findings of
Conclusions of Law and
legislature
sought
indication that the
also
Order),
(HCRC
adopted by
Recommended
extend
to individual
1996) (Final
Order);
June
Decision and
harassment
and retaliation claims under
all
http://labor.hawaii.gov/here/
available at
378-2(l)(A)
378-2(2),
§§
respec
However, for the
contested-ease-decisions/.
tively.
above,
reasons set forth
the HCRC’s con
sum,
legislature’s
inclusion of
struction of
palpably
HRS 378-1 is
errone
“agent” in the
“employer”
definition of
issue,
ous. The first HCRC decision on this
signal
378-1 did not
an intent
Santos,
early
relied on
federal court eases
impose liability
employees.
on individual
In-
interpreting Title VII that held the statute
stead, by using
“agent,”
the term
legisla-
See,
provided
liability.
e.g.,
for individual
nothing
ture did
more than ensure that em-
Unisys Corp.,
Paroline v.
879 F.2d
ployers
would be liable for the
(4th Cir.1989),
grounds,
vacated on other
agents.
conduct of their
therefore hold
We
(4th Cir.1990);
F.2d 27
Fleming
Hendrix v.
subject
personal
that Marxen was not
Cos.,
(W.D.Okla.
F.Supp.
302-03
378-2(l)(A)
§§
under HRS
and 378-
1986); Thompson v. Int’l Ass’n Machin
2(2) for Lales’s state
and retalia-
Workers,
Aerospace
&
F.Supp.
ists
tion claims.
(D.D.C.1984);
Sears,
668-69
Watson v.
Roe
Co.,
(M.D.La.
buck
742 F.Supp.
*17
granting
B. The circuit
court erred
1990). However,
above,
as noted
these eases
summary judgment
in favor of JN on
subsequently
have
overwhelmingly
been
re
the
state
and federal
harassment
jected by
appeals,
the federal courts of
in
(COA
5)
1
claims
and
cluding the circuits in which those cases
See,
Lissau,
e.g.,
arose.
The
harassment
by
employees:
supervisory
and
ment
its
regard to both the state
federal harass-
JN,
First,
the
against
Defendants ar-
ment claims
court noted that the harassment
the
gue
Supreme
pervasive
support
that the ICA misconstrued the
enough
to
an infer-
Faragher.
regard
City
decision in
In
“knowledge,
Court’s
ence
the
had
that
claim,
argues
Next,
knowledge,”
the federal harassment
Lales
of it.
constructive
Faragher
City
that the
affirmative defense is
ruled
was liable under tradi-
that the
agency principles
Terry
in this case because there was
tional
because
and
available
agents
against
acting
action
as its
when
tangible employment
taken
Silverman were
him, i.e.,
they
harassing acts.
regard
terminated.
committed the
Final-
he was
In
claim,
ly,
Gordon’s
the court observed that
knowl-
argues
the state harassment
12^6-175(d)
harassment,
imposes
edge of
combined
lia-
the
with his
that HAR
strict
inaction,
further basis
im-
bility
employers
super-
“provides
for actions
a
for
on
of their
City.”
puting liability
the
visory employees,
precluding application
[sic]
thus
on
Faragher
of
affirmative
the
defense under
omitted).
(citations
at 783
Id.
reply,
argue
In
Hawai'i law.
Defendants
appeal
On
to the Eleventh Circuit
Court
overstepped
statutory
HCRC
that
the
its
Appeals,
three-judge panel
a
reversed the
12-46-175(d),
enacting
authority in
HAR
judgment
City
ground
the
against the
on
that
thus,
court should
federal
and
this
follow
City
the
appropriate
it was not
to hold
liable
precedent
recognize
Faragher
affir-
supervisors’
for the
conduct.
Id. The Elev-
mative defense.
banc,
Circuit,
adopted
sitting
enth
en
below,
panel’s
decision in
Id.
As discussed
Court’s
conclusion.
applicable to
Faragher, while
federal harass-
granted
Supreme
The
Court
United States
claims,
presently
implicated
ment
is not
appro-
certiorari and determined that it was
question
this ease because there remains a
of priate
vicariously
employer
liable
hold
alleged
material fact as to whether JN’s
dis-
wrongful
supervisor
conduct of a
when
criminatory
ter-
actions culminated in Lales’s
supervisor
superviso-
her
using
his or
Moreover,
Faragher
affirma-
mination.
ry authority.
Id. at
by agents supervisory employees, their by supervisor. liable for a Id. at scope HCRC acted within of its and the Meritor, (citing 477 S.Ct. U.S. authority in enacting those administrative 2399). Court, therefore, at S.Ct. rules. identified the circumstances which an vicariously held liable un- could be Faragher Affirmative Defense superviso- Title of its der VII for the actions ry employees: Faragher, plaintiff, In Beth Ann Far- agher, employment principle filed an discrimination order to accommodate claim, harm caused pursuant to Title VII of the Civil mis- vicarious authority, Rights Act her use well as Department policies Title equally Parks and Recreation VII’s basic encour- (City), aging by employers saving City forethought immediate of Boca Raton her Silverman, Terry, objecting employees, adopt we supervisors Bill David action case following holding U.S. in this and in Robert Gordon. 524 Industries, Ellerth, Burlington Faragher alleged City Inc. v. S.Ct. supervisors 633] immediate created a U.S. 742 S.Ct. L.Ed.2d [118 and her (1998), atmosphere” today. An “sexually at work decided hostile also to, subject among things, vicarious to victimized subjecting her other “unin- touching.” hostile environ- The dis- for an actionable vited and offensive Id. determined, by supervisor ment with immedi- part, in relevant created trict court *18 (or However, successively higher) authority ate over employer Court held that an employee. tangible employ- no strictly When would be held liable for the discrimi- taken, defending employer ment action is a natory supervisors conduct of its if that con- an raise affirmative defense to liabili- tangible employment duct resulted in action ty damages, subject proof by pre- a against employee. evidence, ponderance of the see Fed. Rule 8(e). comprises Civ. Proe. The defense Summary judgment appro- was not (a) necessary two elements: that the em- priate on federal Lales’s harassment ployer pre- exercised reasonable care to against claim JN because there re- promptly any sexually vent and correct mains an issue of material fact as to behavior, (b) harassing plain- that the alleged whether the harassment cul- employee unreasonably tiff failed to take discharge minated in Lales’s advantage any preventive or corrective undisputed It is Faragher that the opportunities provided by employer applies affirmative defense to federal harass proof to avoid harm otherwise. While ment claims. In their application, the Defen employer an promulgated had an antihar- argue dants that the “ignored ICA the sub policy complaint assment procedure is body stantial permits federal case law that necessary every not instance aas matter Faragher affirmative defense even if law, the need a policy stated suitable tangible employment there [was] action.” employment may ap- circumstances See, Co., e.g., Ferraro v. Kellwood 440 F.3d propriately any be addressed in ease when (2d Cir.2006) (“The word ‘culminate’ litigating the first element of the defense. requires tangible employment action proof And while that an failed to supervisor’s be linked to the discriminatory corresponding obligation fulfill the of rea- reading comports harassment. This with the sonable care to avoid harm is not limited to purpose of the test—to determine whether showing an unreasonable failure to use supervisor’s ‘the misconduct has been aided complaint procedure provided by the em- by agency relation.’ If an official action ployer, a demonstration of such failure will by supervisor part taken a is not of his normally satisfy suffice to employer’s harassment, provides no ev burden under the second element of the supervisor agency idence that the used his defense. No affirmative defense is avail- employer relation with the to further his able, however, supervisor’s when the misconduct.”). Specifically, Defendants as tangible culminates a em- sert there was no evidence that action, ployment discharge, such as demo- alleged harassment “culminated” in Lales’s tion, reassignment. or undesirable See discharge. Burlington, 524 U.S.[] 762-63 [118 S.Ct. 2257]. Contrary assertion, to Defendants’ sum 807-08, 118 Faragher, 524 U.S. at S.Ct. 2275. mary judgment Faragher based on the de sum,
In
appropriate
the Court determined that when
fense was not
in this ease be
tangible employment
no
action
cause there
is taken
existed issues of material fact as
against
employee,
employer
an
an
alleged
can assert
to whether the
harassment Marx-
against
an affirmative
against
defense
a claim of
en
Lales indeed culminated Lales’s
See,
supervisors.14 discharge.15
discrimination
one of its
e.g.,
Progressive
Bennett v.
Supreme
recently
Accordingly,
14. The United States
Court
Lales.
the Court's
decision
that,
purposes
holding
employer
employee
held
holding.
Vance does not affect our
VII,
vicariously
liable under Title
15. Ferraro is not inconsistent with this determi-
alleged
must show that the
discrimination was
Ferraro,
brought
nation.
Laura Ferraro
a
"supervisor,”
committed
which the Court
against
discrimination claim
her
employee "empowered by
defined as an
the em-
Rights
the New York State Human
Law and New
ployer
tangible employment
to take
actions
Univ.,
City
Rights
York
Human
Law.
with him. Bennett did Id. 198-99. sented sufficient evidence to raise issue of report nearly year Mitchell’s actions until alleged material fact as to whether the dis- later, reported when she Mitchell’s conduct criminatory tangible conduct “culminate[d] Beney, supervisor to Michael MitcheU’s employment against action” Lales. For ex- Beney personal friend. Id. at 197-200. sub- declaration, ample, in his Lales stated that he sequently terminated Bennett and Mitchell subjected by derogatory was Marxen to re- consumption job, of alcohol on the which slurs, being marks and such as called “Fren- against company policy. Id. at was chie,” Bastard,” “fucking being French Bennett filed a discrimination and retaliation participate told Marxen that he could not against Progressive, Progressive lawsuit program salespersons in a radio where were summary judgment argu- filed a motion for get allowed to on the radio and announce ing that it was not liable under Title VII “slasher sales” of vehicles because Marxen because it satisfied the affirmative defense [Lales’s] “did not want French accent on the Faragher. set forth in Id. at 202-10. Furthermore, radio to sell American cars.” analyzed, The federal district court inter Lales stated in his declaration that Marxen alia, whether the sexual 'harassment culmi- “Frenchy” put told him to call himself and to termination, nated in Bennett’s and deter- that name on his business card. Lales stated mined: put “Frenchy” that he did not on his business case, questions
In the instant factual re- he card because found this to be offensive. termination, plaintiffs prior main as to the true reason for One month to his alleges reported discriminatory termination. She that the hostile Martinez’s behavior Marxen, responded, work environment Mitchell created and Marxen “You her, will, Bastard, drinking, Fucking get my coerced her into French out of of- drinking and that was used as fice[.]” such Lales said his declaration that the alleges her given reason for termination. She initial reason for his termination on 23, 2002, poor performance that the real reason she was fired was not June sales missing meeting. Upon confronting due to a violation of the office alcohol lodged policy, but rather because she a Marxen about JN’s rationale for his termi- judgment summary ta termination. its burden to show that Ferraro’s Id. at alleged conduct did not culminate nation, Marxen reinstated Lales. The next vor of JN on the federal claim day, again (COA 5).16 June Lales was terminat- *20 ed, allegedly lying this time for to a custom- er. The initial June 2002 Termination Summary judgment appro- was not Report was re-dated to reflect the new ter- priate on Lales’s state harassment date, Furthermore, mination June claim JN because HAR 12- original in addition to the reason for Lales’s 46-175(d) imposes strict on termination, the re-dated June 2002 Ter- employer discriminatory for the Report mination stated that Lales lied to supervisory employees conduct of its customers and the manager. used car argues Faragher af analytically The instant ease is similar to applicable firmative defense is not argue
Bennett. Defendants
that Lales was
state harassment claim because HAR 12-
terminated because he lied to customers.
In
46-175(d) imposes
employ
strict
on
contrast, Lales’s evidence is sufficient
to
ers for actions
supervisory employ
of their
subjected
raise the inference that Lales was
Defendants, however,
ees.
argue that
the
to a
discriminatory
by
course of
conduct
overstepped
HCRC
statutory authority
its
in
Marxen that
discharge,
culminated in Lales’s
12-46-175(d),
thus,
enacting
HAR
the
alleged
with the
lie to the
serving
customers
Faragher
affirmative defense should be
as a “convenient means” for Lales’s termi-
adopted.
nation. Id. at
alleged-
204-04. That conduct
ly began with
derogatory
Marxen’s use of
below,
12-46-175(d)
explained
As
HAR
Lales,
remarks toward
then continued with
does not contradict or conflict with HRS
alleged rejection
Marxen’s
com-
Lales’s
chapter
and the
overstep
HCRC did not
plaint to him approximately one month be-
statutory authority
imposing
its
in
strict lia-
(which
fore Lales’s termination
was itself
bility
employers
discriminatory
for the
allegedly accompanied by another such re-
Therefore,
supervisors.
actions of their
the
mark), and culminated with Lales’s termi- Faragher
applica-
affirmative defense is not
only
day
nation
one
after an
attempt
aborted
ble to the state harassment claim.
by Marxen to
missing
terminate him for
a
statutory authority,
Pursuant
to
see HRS
meeting
poor
sales
performance.
sales
368-3(9)
(Supp.2002) (noting that
the
alleged
These
circumstances are sufficient to
authority
“adopt
HCRC has the
to
rules
raise the inference that Marxen utilized his
91”),
chapter
adopted
the HCRC
HAR
authority
supervisor
as a
to further
al-
his
12-46-175,
provides,
which
in relevant
leged discriminatory
by
animus toward Lales
part:
terminating
complained—a
him after he
situ-
ation to which
Faragher
the
defense would
(d)
employer
responsible
An
for its acts
(“If
Ferraro,
apply.
nated
Lales’s
will
[HCRC]
circuit court
examine the circum-
particular employment
granting summary
erred in
judgment in fa-
stances of the
determined, "Here,
(1982) ("It
16. The ICA
because the al-
P.2d
is not within the
leged
province
summary judgment
harassment Marxen did
culminate
of the trial court at
Nevertheless,
discharge,
Faragher
Lales's
disputes.”).
affirmative de-
to resolve factual
Lales,
apply.”
vacating
fense did not
WL
ICA did
err in
not
summary
the circuit court’s
appears
grant
judgment
*15. To the extent this statement
on the harassment
(COAs
5)
dispute,
proper
provided
resolve a factual
it would not be
claims
1 and
because Lales
reviewing
summary judgment.
genuine
motion
sufficient
evidence
raise a
issue of
Nishiki,
Rodriguez
See
65 Haw.
material fact.
relationship
job
per-
con
supervisory employees.
functions
its
To the
and the
infra,
trary,
in determin-
and as
further
formed
the individual
ing
statutory language provides
the HCRC with
whether
acts
an individual
agency capacity.
rulemaking authority
authorized
broad
promulgation of
rule at issue here.
(e)
respect
between fellow
With
to conduct
re-
employees,
shall be
inception,
given
From its
the HCRC
sponsible for
acts of harassment
authority
rales to enforce
broad
create
ancestry,
workplace on the basis of
State’s anti-discrimination laws.
agent, or su-
where the
its
Rights
enacted
Civil
legislature
the Hawaii
*21
or
pervisory employee, knows
should
219, § 1 at
Act. 1988 Haw. Sess. Laws Act
conduct,
have known of the
unless the
Rights
The intent of
Civil
the Hawaii
employer can
it took immedi-
show that
“preserve
existing rights and
Act was to
all
appropriate
ate and
corrective action.
of the
anti-discrimi-
remedies”
various state
laws,17
to
added).
“provide
nation
a mechanism
(Emphasis
procedure
provides for a
which
uniform
provides
require-
§
the
HAR 12-46-175
discrimination
the enforcement
the State’s
claim,
ancestry
ments for an
219, §
Haw.
Act
1 at
laws.” 1988
Sess. Laws
distinguishes
superviso-
specifically
between
added);
To
(emphasis
368-1.
387
liability
liability.
ry
and co-worker
See HAR
intent,
legislature created
effectuate this
the
12-46-175(d)
(e).
hand,
§§
one
On
HAR
powers
of the
the HCRC.
and functions
12-46-175(d)
liability
imposes
on em-
strict
chap-
“adopting]
HCRC include
rules
supervisory
actions
em-
ployers for
of their
§HRS
ter 91.”
368-3.
harassment, regardless
ployees
ancestry
addition,
acts
wheth-
of whether the
were forbidden or
provided
the
the
legislature
In
er the
knew about this conduct.
with broad
to order reme-
HCRC
discretion
12-46-175(e)
hand,
im-
On the other
HAR
violations of
dies for
the anti-discrimination
reinstatement,
em-
poses
laws,
for conduct between fellow
including: “[hjiring,
or
only
ployees
agents,
if the
its
or
employees
without back
upgrading of
with or
368-17(a)(l)
supervisory
knew or should have
(Supp.2002),
re-
pay[,]” HRS
the
known of
harassment.
quiring “[rjeporting
the manner of com-
as to
368-17(a)(6) (Supp.2002),
plianee[,]” HRS
“It is
that an adminis
axiomatic
“[ojther
ordering
the commission
relief
rule cannot
or conflict with
trative
contradict
appropriate.”
the court deem[ed]
or
implement.” Agsa
it attempts
the statute
to
368-17(a)(10) (Supp.2002).
Blalack,
588, 591,
17,
P.2d
lud v.
67 Haw.
699
Thus,
legislature
HCRC
granted
the
the
(1985) (citations omitted). Furthermore,
19
authority
promulgate
to
and enforce
broad
agency’s authority
promulgate rules
an
“is
rules that effectuate the State’s anti-discrimi-
enacting
carry out
limited to
rules which
held,
Indeed,
has
nation laws.18
this court
purposes
legislation
further the
and do
alter,
only wield
enlarge,
provisions
agency
administrative
can
not
or restrict
granted
it
being
powers expressly
implicitly
act
Puana
of the
administered.”
v.
Sunn,
189,
867,
However,
Haw.
P.2d
it is well established
737
870
statute.
(1987). Here,
authority
statutory provi
agency’s
no
that an administrative
there are
implied
that are rea-
preclude
imposing
powers
HCRC from
includes those
sions
sonably necessary
carry
powers
on an
for the
out
strict
actions
time,
statutory
Department
au-
of Labor
that the HCRC exceeded its
17. At the
State's
stated
entity
thority
promulgating regulation
and Industrial Relations was the
tasked
that allowed
enforcing
Hawaii’s
anti-discrimination
person to
director
its executive
interested
department’s
laws. Under the
administrative
declaratory ruling
petition
for a
the commission
time,
regulations
employers
at the
were held
statutory pro-
that rule
with a
because
conflicted
strictly liable for the actions of their
Inventory Specialist Haw. Civil
RGIS
vision.
12—23—115(d)(1986).
employees. SeeHAR§
Comm’n,
Rights
86 P.3d
Hawai'i
(2004).
authority
promulgate rules
18. The HCRC’s
Indeed,
without
this court has
restrictions.
expressly granted.
implied
The reason for
Because the HCRC is tasked with enforc
that,
matter,
powers
practical
as a
378-2,
ing
the mandates of HRS
and the
legislature
problems
cannot foresee all the
employer’s liability
extent of an
for the con
carrying
incidental to
out the duties and
supervisors
duct of
and co-workers is not
responsibilities
agency.
statute,
defined
interpreta
the HCRC’s
State,
144, 152, 140
Haole v.
111 Hawai'i
P.3d
given
Gillan,
tion should be
deference. See
(2006) (citation
omitted).
(“[I]n
basis of
burden-shifting test for retaliation claims un-
specific
complained of were authorized
acts
378-2(2):
der HRS
or even forbidden
regardless
whether the
knew
plaintiff
prima
must first establish a
or should have known of their occurrence.
retaliation
facie' case of such
demon-
*23
department will examine the circum-
The
(a)
(i)
strating
plaintiff
op-
“has
employment
particular
of the
rela-
stances
any
posed
practice forbidden
tionship
job
performed
and
functions
Practices,
chapter
Employment
Part
determining
by the individual in
whether
(ii)
I, Discriminatory Practices or
has filed
agen-
supervisory
an individual acts in a
or
testified,
complaint,
a
or assisted
cy capacity.
proceeding respecting
discriminatory
(b)
language
practices prohibited
part,”
HAR
under this
The current
12-46-
175(d),
adopted
“employer,
organization,
which the HCRC
his or her
labor
agency
discharged,
...
nearly
language
employment
identical
to the
of HAR
or
has
prior
12-23-115(d),20
expelled,
which existed
otherwise
discriminated
(c)
legislature
plaintiff,”
and
“a causal link
creation of the HCRC. When the
activity
protected
the HCRC in
it did not ex-
has existed between the
created
(2)
action;”
preclude
imposing
plaintiff
from
and the adverse
if the
pressly
the HCRC
prima
employers for the actions of
establishes a
facie case of retalia-
strict
tion,
already
supervisory employees,
their
as was
the burden shifts to the defendant to
nondiseriminatory
existing
provide
legitimate,
authorized under the
administrative
a
action;
employment
Department
and Indus-
reason for the adverse
rules of the
of Labor
(3)
pur-
and
if the defendant articulates such a
trial Relations. Given that one of the
reason,
poses
creating
“pre-
plain-
was to
the burden shifts back to the
HCRC
existing
remedies,”
rights
demonstrating
tiff to
evidence
all
and
show
serve
dissenting
only
regula-
bility.
opinion
the two
See
at
20. difference between
above,
"department”
at
As noted
the HCRC is
is the reference to the
P.3d
387-88.
tions
12-23-115(d)
required
and "commission" in HAR
to examine the "circumstances” of the
HAR
12-46-175(d).
employment relationship
to determine whether
agency
in a
the individual acts
12-46-175(d).
Contrary
suggestion,
capacity.
An examina-
HAR
HAR
to the dissent's
12-46-175(d)
analyz-
tion of the "circumstances” necessitates
indeed allows the HCRC to con-
ing
supervisor appropri-
case-by-case
of the
determination of whether the
whether
acts
duct a
ately subject
liability.
supervisor subject
of a
to lia-
acts
given by
pre-
reason
the defendant
telling
ers when
them that
there was air
conditioning
textual.
in a truck that he sold to them.
Burdine,
Dep’t
See Tex.
Comm.
(brackets
Affairs
96 Hawai'i at
P.3d
248, 256,
450 U.S.
101 S.Ct.
67 L.Ed.2d
omitted).
citations
(1981)
employer’s
C'[T]he
burden is satis-
Similarly, this court described the burden
simply ‘explains
fied if he
what he has done’
shifting test for
brought
retaliation claims
‘produces]
legitimate
evidence of
nondis-
under Title VII:
”).
criminatory reasons.’
Lales asserts that
Rights
Under Title VII of the Civil
Act
pretextual.
this reason was
§§
42 U.S.C.
2000e-l to 2000e-17
Although
presented
Defendants
evidence
(1994),
that,
... federal courts have held
evidence,
that contradicted Lales’s
Lales’s
prima
retaliation,
a
facie case of
an em-
genuine
evidence created
issues of material
(1)
ployee must show that
he or she en-
fact regarding whether JN’s reasons for La-
gaged in
protected activity;
a
his or
les’s
pretextual.
termination were
In his
employer subjected
her
him or her to an
opposition
declaration attached to his
to JN’s
action;
employment
adverse
a
motion
summary judgment,
Lales stated
link
protected
causal
existed between the
subjected
that he
derogatory
com-
activity and the adverse
plain-
action. If a
ancestry
ments about his
origin
national
tiff
prima
has asserted a
facie retaliation
at JN.
approxi-
Lales further asserted that
claim, the burden shifts to the defendant to
mately
termination,
one month before his
legitimate
articulate a
nondiscriminatory
orally complained
Lales
to Marxen about the
reason for its
If
decision.
the defendant
discrimination,
responded,
and Marxen
“You
reason,
plaintiff
articulates
such a
Bastard,
Fucking
get
my
French
out of
of-
bears the ultimate burden of demonstrat-
later,
fice!.]” One month
on June
ing
merely
pretext
reason was
initially
Marxen
told Lales that he was termi-
for a
motive.
selling
nated for not
enough cars and for
Schefke,
were
101 S.Ct.
the United States Su-
fired for work-related misconduct.
not been
plaintiff may
es-
preme
credibility
Court stated that
regard
at 1063. In
Id.
directly by persuading
pretext
witnesses,
tablish
“either
the Ninth Circuit stated that
discriminatory
the eoui’t that a
reason more
“unavailing” be-
Villiarimo’s assertion was
indirectly
likely
motivated the
“only require
that an
cause courts
proffered
by showing
employer’s
actions,
honestly
its
believed its reason for
explanation
unworthy
credence.” See
if its reason is ‘foolish or trivial or even
even
”
Am., Inc.,
Shoppe v.
also
Gucci
(citation omitted).
Ninth
baseless.’
Id.
(2000)
(citing
present
did not
Circuit noted that Villiarimo
1089).
Burdine,
101 S.Ct.
450 U.S.
honestly
evidence that
the airline did not
ease,
In this
Lales’s declaration offers suffi-
proffered reasons.
Id.
believe its
to raise an issue of fact about
cient evidence
rely
specific portion of
Defendants
on this
pretext
his termination was
for a
whether
argue
honestly
Villiarimo to
that JN
be-
motive,
specifically, because
firing
he lied
lieved that it was
Lales because
(1)
allegedly hostile reaction to
of Marxen’s
conditioning
the air
in
to customers about
complaint,
temporal prox-
Lales’s oral
thus,
truck,
court
affirm
their
this
should
(amount
month)
imity
one
between the com-
grant
summary judg-
the circuit court’s
termination,
plaint and the
the abort-
portion,
ment. Defendants’ reliance on this
day,
attempt
previous
to fire him on the
ed
however, misplaced
present
because in the
which, given
surrounding
circumstances
case,
genuine
fact
there is a
issue of material
declaration,
suggested
Lales’s
raises an
honestly
whether JN
believed its rea-
as to
retaliatory
inference of
intent.
actions, specifically given that
sons for its
Air,
Citing Villiarimo v. Aloha Island
evidence,
put
through
forth
his decla-
(9th
Inc.,
Cir.2002),
loynne
ramp supervisor
was a
produced
evidence to
D. Lales
sufficient
Aloha Island Air. Id. at 1058. The airline
genuine
of material
fact
raise
issues
insisted that it terminated Villiarimo because
1, 2, 5,
as to COAs
and 6
she violated a rule
connection with
challenge the
generally
Defendants also
damage
one of
accident that resulted
opposition
Lales in
evidence submitted
airplanes,
had been dis-
the airline’s
and she
*25
summaiy judgment. Defen-
the motions for
during
investigation
acci-
honest
argue
Lales’s evidence
dants
that because
dispute that she
dent.
Id. Villiarimo did not
“faulty,”
grant of sum-
the circuit court’s
job satisfactorily,
perform her
which
failed to
mary judgment should be affirmed. More
damage
airplane.
resulted in
to the
Id. at
argue that the ICA
specifically, Defendants
However,
n. 8.
Villiarimo maintained
by:
gravely erred
of her sex
that she was terminated because
(1)
presented
largely ignoring the evidence
airline
and that the reasons offered
[Defendants],
viewing
only
[Lales’s]
and
pretextual.
Id. at
for her termination were
light
in the
most favorable
“evidence”
specifically argued that
1061-63. Villiarimo
(2)
him;
considering
“evi-
inadmissible
airline’s reason for her
termination
self-serving
time,
dence” and uncorroborated
changed over
that three of the airline’s
credible,
a sham
[Lales]
statements submitted
and that a state
witnesses were
declaration;
determined,
considering [Lales’s]
and
already
in the con-
agency had
subjected
inadmissible evidence to find that material ment” to conclude that “Lales was
existing
preclude summary
facts
so as to
persistent, derogatory,
and unwelcome
judgment.
ancestry
statements and comments about his
origin”
and national
and that
there were
below,
argu-
As discussed
Defendants’
“genuine
of material
regarding
issues
fact
merit,
ments are without
and Lales’s evi-
claims
JN
[Lales’s]
for harassment
genuine
dence was sufficient to raise a
issue
ancestry
origin
based on
and national
dis
fact
challenged
material
as to all the
Lales,
1624013,
crimination.”
2012 WL
COAs.
*16. These facts were sufficient to raise a
were, thus,
improperly ignore
genuine
1. The ICA did not
issue of material fact and
presented by
French,
“worthy
evidence
Defendants
trial.”
This court has held
once a
on the
summary judgment
“[b]ased
numerous inconsistencies and
movant has satisfied its
contradictions,
rightly
the circuit court
producing support
initial burden of
disre-
for its
garded conflicting portions of
genuine
[Lales’s]
claim that there
no
Decla-
issue of mate
fact,
self-serving
essentially
ration as
a
party opposing summary judg
rial
infra,
facts,
sham.” As
the circuit
specific
ment
court
must “demonstrate
improperly
credibility
made
determinations
opposed
general allegations,
present
when it discounted Lales’s
genuine
worthy
declaration that
issue
of trial.” French v.
Hut, Inc.,
462, 470,
opposition
was attached to his
to JN’s motion
Haw. Pizza
omitted).
Moreover,
summary judgment.
(emphasis
Lales’s
99 P.3d
clearly
declaration was not a sham and is not
light
“The evidence
must be viewed
unambiguously
inconsistent
non-moving party.”
most favorable to the
Ins.,
prior deposition
made in
statements
First
favorable to Lales. 2012 WL Defendants at n 1n. stating *15. The in explicitly Defendants do not identi circuit court did not err fy any legal authority determination, require credibility that would that it made a it is explain ruling summary ICA to how Defendants’ evidence clear that in on a motion for Rather, judgment, conflicts with that evidence. the court must not make credibili required ty ICA was to view the evidence determinations. Del Rosario v. Kohanui nui, light most favorable to Lales to determine 52 Haw. 587 n. *26 (1971) (“The disputed
whether there were
of mate
n. 4
issues
clash
evidence on this
Here,
worthy
precise
rial fact
of trial.
exam
point
Id.
for
makes a
factual determination
ple,
impossible
prompts
the ICA stated that
it relied on “the
a consideration of
credibility,
improper
matters set forth in Lales’s declaration in
...
matter
sum
resolution.”).
opposition
summary judg mary judgment
to JN’s motion for
Moreover,
guendo that
affidavit doctrine is
argument
Defendants’
re
sham
available,
prohibiting
applicable
not be
in the
federal doctrine
“sham
it would
lies on a
general,
affidavit”
affidavits.” In
the “sham
case because Lales’s declaration was
instant
applies when the affidavit of a non-
clearly
unambiguously
doctrine
inconsistent
not
summary
moving party
judg
in a motion for
prior deposition and admissions.
with his
or is inconsistent with his
ment contradicts
Here,
argue
Defendants
the circuit
testimony.
previous deposition
See
or her
credibility
properly made a
determi-
court
Wright,
Miller
Alan
Arthur R.
10A Charles
regarding
nation
“numerous factual incon-
Kane,
Mary Kay
& Pro
&
Federal Practice
own admissions that
[Lales’s]
sistencies
1998).
(3d
Under this
cedure
ed.
(1)
claims[,]”
al-
undermine his
such as:
doctrine,
non-moving party generally can
regarding
legedly changing circumstances
genuine
“simply
issue of fact
not create
Marxen,
meeting with
in which La-
Lales’s
submitting
contradicting
an affidavit
his [or
requested to be transferred from Mar-
les
prior testimony.” Van Asdale v.
own
her]
alleged
supervision,
tinez’s
Lales’s
(9th
Tech.,
577 F.3d
Int’l Game
regarding
con-
inconsistent statements
his
Cir.2009).
“Frenehy.”
sent
to the use of the name
purpose
The
of the “sham affidavit” However, these “inconsistencies” are not so
preserve
utility
“the
of sum
doctrine is to
“clearly
unambiguously
inconsistent”
screening
mary judgment
procedure
as a
disregard-
Lales’s declaration would be
Kennedy
of fact.”
v. Allied
out sham issues
Id.
ed under the sham affidavit doctrine.
(9th
Co.,
Mut.
952 F.2d
Cir.
Ins.
at 998-99.
1991)
Assocs., Inc.,
(quoting Foster v. Arcata
argue
Defendants
that Lales’s rendition
(9th
Cir.1985));
772 F.2d
see also
regarding
his conversation with Marxen
Asdale,
However,
he never complaints submitted “written” (HRCP) Hawai'i Rules of Civil Procedure management name, regarding the use of the 56(e) (2000), Rule provides, in part: relevant Second, “Frenchy.” deposition in a Lales Supporting opposing and affidavits shall “probably stated that he did” refer to himself personal knowledge, be made on shall set Frenchy, explained as but that he did so out forth such facts as would be admissible in Therefore, of fear of retaliation. it is not evidence, affirmatively and shall show inconsistent for Lales to state in his declara- competent testify the affiant is tion that he did being not consent to called matters stated therein. Sworn or certified “Frenchy.” clearly stated in his ad- copies papers of all parts thereof re- mission that he did not file a written com- ferred into an affidavit shall be attached plaint, but orally complained, stated that he thereto or served therewith. The court expressly and he stated a few times may permit supplemented affidavits to be deposition that “Frenchy” he used the name opposed by depositions, answers to in- because of his fear of retaliation. Lales’s terrogatories, or further affidavits. When prior declaration statements summary judgment a motion for is made that he made. rule, supported provided in this party may upon Accordingly, challenged portions of the adverse not rest the mere allegations clearly par- declaration unambiguous- are not or denials of the adverse ty’s pleading, ly party’s prior deposition inconsistent with Lales’s but the adverse re- Thus, sponse, by pro- statements and admissions. Lales’s affidavits or as otherwise rule, specific declaration was not a “sham.” vided in this must set forth showing genuine facts that there ais issue rely improperly 3. The ICA did party for trial. If the adverse does not so inadmissible evidence respond, summary judgment, appropri- if ate, shall be entered the adverse Defendants contend that improp- the ICA party. erly “speculation relied on eonclusory added). (Emphasis statements Lales” and also evidence that “conflicting Here, rely inadmissible.” Defen- the ICA did not on the EEOC appear improp- statements, dants to assert that the ICA interview and EEOC Determina erly letter, following relied on the complaint exhibits and tion employee, of a fellow op- statements that were attached newspaper blog to Lales’s concluding articles in position summary judg- to JN’s motion for that Defendants were not entitled to sum ment: mary judgment, EEOC interview and state- and the ICA did not mention ments, which were not authenticated or these opinion. exhibits its memorandum to; (2) letter, Lales, sworn an EEOC Determination See 2012 WL at **1-18. The which hearsay; Defendants only assert was ICA relied on Lales’s declarations to complaint JN, employee against of another “genuine determine that there were issues of *28 However, parties did not as the inasmuch regarding Lales’s claims fact material policy public the basis for Lales’s ancestry and address based on JN for harassment Id. at n summary in to JN’s motion claim relation origin discrimination.” national unclear, COA 4 is judgment, the basis for claims, the ICA As to the retaliation thus, vacating in ICA did not err he com on Lales’s statement relied summary judgment. harassment, and plained to Marxen about Lales’s Although challenged all of JN subsequently terminated Lales was summary judgment, in motion for claims its alleged reporting the
within one month of regarding any argument provide it did not *17. Al Id. at conduct. granted why court should have the circuit specifically state ICA did not though the 4 in its memo- summary judgment on COA that there was on to conclude what it relied At the support of its motion. randum in to whether JN’s material fact as an issue of summary judg- motion for hearing on JN’s Lales’s termination proffered reasons for coun- being Lales’s ment and after asked in declara Lales stated pretextual, were public ruled on the if the circuit court also sel telling customers that denied tion that he stated, count, “I am the circuit court policy conditioning. All these air the truck had Summary Judgment on all counts. granting be by Lales would be admissible statements together ... public policy count runs “personal knowl they are from his cause previously reasoning that I have with the 56(e). addition, In edge.” HRCP Rule See court did not address cited.” The circuit not nec improper evidence was allegedly findings in of fact public policy issue its Accordingly, essary ICA’s outcome. to the of law. conclusions regarding this evi arguments Defendants’ Ralston, the bur- this court described In misplaced. are dence summary judgment, in den motions argument that regard to Defendants’ With First, burden moving party has the contained inadmissible Declaration Lales’s support producing claim that: for its statements, alleged conclu- eonelusory those material fact exists genuine issue of no because sory statements are irrelevant respect to the essential elements making its rely on them ICA did not which the motion claim or defense judgment. summary to vacate determination motion or which the to establish seeks that Lales used regal’d to the claim undisputed based on the questions; and “retaliation” legal “discriminated” terms facts, summary judgment to it is entitled declaration, no again, there is throughout his Only moving when the of law. as a matter Lales’s use ICA relied on indication that the produc- party its initial burden satisfies determination. making its of these terms nonmov- tion does the burden shift ing party respond the motion for to to Thus, rely inadmissible did not the ICA spe- summary judgment and demonstrate the circuit court to conclude that evidence general allega- facts, opposed to summary judgment. cific granting erred in worthy tions, present genuine issue trial. granting court erred E. The circuit
summary judgment of JN on in favor at 1286-87 added). 4COA (emphasis case, provid JN never In the instant ICA erred assert Defendants summary judg motion for support ed for its in favor of JN vacating summary judgment such, claim. As public policy to ment on the remedies available 4 because the on COA present evidence required in Lales was remedies in COA 4 were covered Lales fact as of material to raise an issue accordingly, the cir- sufficient chapter violated of Lales JN’s termination summary to whether granting err in cuit court did not Moreover, was not public policy. Id. 4. As of JN on COA judgment in favor any argu respond given opportunity below, has Defendants’ assertion discussed policy claim. See public regarding ments was derived public policy claim if the merit Inc., 960 F.2d Honeywell, Edwards v. chapter 378. provisions of HRS from the (7th Cir.1992) (noting policy policy that the trial court cannot be asserted “where the by granting summary judgment on sought already “erred to be vindicated is embodied grounds non-moving party] which [the providing remedy in a statute its own for its given inadequate opportunity either an or no violation”). Thus, *29 opportunity respond”). to the ICA did Therefore, vacating the ICA did not err vacating grant err in not circuit court’s of granting summary judg- the circuit court’s of summary judgment in favor of JN on the ment in favor of on public policy JN public policy claim. claim. application, In their Defendants con public policy tend that Lales’s claim is “based IV. Conclusion on the same factual basis as the counts based sum, summary judgment In in favor of chapter in HRS 378.” Defendants cite to the 2 appropriate Marxen on COAs 1 and was complaint argue first amended and that La- However, summary judgment this case. allege “any any les did not new facts new or 1, 2, 4, 5, favor of JN on COAs and was Complaint relating elements in his Amended Therefore, inappropriate. part we affirm In complaint, [COA] to 4.” his first amended part judgment and vacate in the ICA’s and “reineorporate[d] reallege[d] para Lales pro- remand to the circuit court for further graphs through 27” and asserted that his ceedings. public policy termination “was in violation of Although
for which
are liable.”
[Defendants]
may appear
public policy
claim
Concurring
Dissenting Opinion by
would be
on the
based
same facts as the ACOBA, J.
claims,
chapter
HRS
the record is un
first,
I would hold
that Petitioner/Defen-
scope
public policy
clear as to the
of the
Marxen,
(Marxen),
dant-Appellee Gary
a
Sr.
claim.
supervisory employee of Petitioner/Defen-
note, however,
As Defendants and ICA
dant-Appellee
Company
Wholesale Motors
should the circuit court determine on remand
(JN)
summary judgment
was not entitled to
public policy
claim is indeed derived
regarding the Hawai'i Revised Statutes
chapter
from HRS
such a claim would
(HRS) Chapter
Respon-
378 claims of
Machinery
be barred.
In Takaki v. Allied
dent/Plaintiff-Appellant Gerard R. Lales
stated,
Corporation,
the ICA
“If
...
(Lales),
JN,
a former
of
inasmuch
statutory
regulatory provisions
or
which evi-
genuine
issues of material fact existed as
public policy
provide
dence the
themselves
a
Marxen,
supervisor,
to whether
as Lales’
aid-
remedy
wrongful discharge, provision
for the
ed, abetted,
incited, compelled, or coerced
remedy
public policy
of a further
under the
doing
discriminatory
practice
in vio-
57, 63,
exception
unnecessary.”
87 Hawai'i
378-2(a)(3).1
lation of HRS
(App.1998);
see also Ross
view,
Co.,
my
may
subject
Marxen
be
to
Hotel
Stouffer
378-2(a)(3).
liability
P.2d
individual
under HRS
(noting
that a claim
wrongful
public
entry
termination in violation of
I would therefore vacate the
of sum-
(Supp.2002) provided
1. HRS 378-2
in relevant
any employer,
organization,
part as follows:
For
labor
or
employment agency
discharge, expel,
or oth-
Discriminatory practices
378-2
made un-
against any
erwise discriminate
individual be-
lawful; offenses defined.
any practice
opposed
has
cause the individual
(a)
discriminatory prac-
It shall be an unlawful
part
complaint,
forbidden
this
or has filed a
tice:
testified,
any proceeding respect-
or assisted in
race,
(1)Because
sex, including gender
ing
discriminatory practices prohibited
un-
orientation,
identity
expression,
age,
or
sexual
part;
color,
der this
(3)
religion,
tus,
ancestry, disability, marital sta-
any person,
For
whether an
em-
arrest and court record:
ployee,
not,
aid, abet, incite, compel,
any employer
(A)
or
For
hire
em-
refuse to
doing
ploy
discharge
employment,
coerce the
or to bar or
from
practices
part,
against any
attempt
forbidden
this
or to
or otherwise to discriminate
indi-
compensation
terms,
so[.]
vidual in
or in the
to do
condi-
tions,
privileges
employment;
added.)
(Emphases
imposes
which in effect
absolute
of the Circuit Court of the
mary judgment
court)2
(the
employers
ancestral
harassment5
in favor of Marxen
First Circuit
supervisory employees (employer strict
claim their
state ancestral harassment
as to Lales’
claim)
authority
(harassment
liability)
statutory
retaliatory discharge
exceeded the
Rights
Hawaii Civil
Commission
application
granted
court for
and remand to the
claim
(HCRC)
378-2(a)(3). However,
§§
HRS
368-36 and 378-2.7
Marxen
under
HRS
Instead,
Chapter
proper
individually
under HRS
be
liable
378-2(a)(l). Rather,
employers
§ 378-13
balance between the interests of
HRS
378-2(a)(l)
by applying the
support
hold-
is struck
do not
in the Re-
“agents”
principles of
enumerated
ing supervisory employees or
such
(Second)
(Second
Agency
Re-
individually
alleged
liable for
dis-
statement
as Marxen
statement) §
liability)
219.8
criminatory
(employee
conduct
un-
*30
378-2(a)(l).
§HRS
der
JN,
Finally,
Marxen’s
should
Further,
adoption of Hawai'i
not be able to avail itself of the so called
I believe the
(HAR)
12-46-175(d),4
“Faragher
§
defense”9 to an em-
[affirmative]
Rule
Administrative
following pow-
presided.
The
shall have the
Randall K.O. Lee
commission
2. The Honorable
ers and functions:
(1993)
part
provides
§
in
378-1
relevant
3. HRS
(9)
adopt
chapter
[HRS]
To
rules under
91.
follows:
as
may
Chapter
agency
HRS
Pursuant
"Employer”
any person, including the
means
hearing
adopt
following
public
and an
rules
political
State or
of its
subdivisions
opportunity
data, views,
persons
for interested
to submit
any agent
person, having
of such
one or more
§
arguments.
or
HRS 91-3.
employees, but shall not include the United
States.
§
§HRS 378-2 as "im
HAR 12-46-175 lists
added.)
7.
(Emphases
plied authority”
majority ap
for the Rule. The
(1990)
12-46-175(d)
12—46—175(d)
provides
§
§
pears
in rele-
HAR
is
4. HAR
to assume that
part
majority opinion
§
vant
as follows:
on HRS 378-2. See
based
355,
authority
HAR
subject Marxen to under either HRS 378-2(a)(l) 378-2(a)(3). I. or HRS See In Inc., Genesys re Technologies, Data 95 Ha A. (“Plead wai'i ings must liberally.”). be construed *31 Lales filed an complaint amended on Feb question Pertinent to the employee lia- 20, 2004, ruary alia, asserting, 3, 2006, inter bility, May that on Marxen filed a motion employer subject An to vicarious supervisor’s exists as to whether a harassment employee a victimized for an tangible actionable hostile employment culminated in a action. by supervisor environment created a with im- (or successively higher) authority mediate over agree majority 12. I with the there were tangible employment employee. When no genuine regarding issues of material fact wheth- taken, defending employer may action is a proffered er JN's reasons for Lales’ termination raise an affirmative defense to or dam- pretextual, produced were that Lales' sufficient ages. ... comprises The defense two neces- genuine evidence to raise issues of material fact (a) sary elements: that the exercised as to his state and federal harassment claims prevent reasonable care to and correct agree JN. I also that the basis for Lales’ behavior, promptly any sexually harassing public policy claim is not clear from the record. (b) unreasonably plaintiff Machinery Corporation, Takaki v. Allied 87 Cf. Hawai'i advantage any preventive failed to take 57, 64, 507, (App.1998). 951 P.2d I opportunities provided by corrective the em- affirming therefore concur in the ICA’s decision ployer or to avoid harm otherwise. vacating entry summary judgment the court’s
Faragher,
that individual 378-2(a)(l) anybody to be [of] he was did not “know and therefore that he der HRS attending meet- summary Lales’ first a sales judgment on terminated for entitled to action. Marxen at- that he lied to a customer ing.” and second causes of Lales denied equipped motion copy deposition his to his car was regarding tached a whether a deposition, Instead, summary judgment. In the claimed that conditioning. Lales air “general related that he was for his com- Marxen fired “as retaliation” he was that Lales was a manager” at JN and plaint. sales Marxen “car salesman” at JN. granted sum- July the court On made the decision to he “was not the one who Marxen on all mary judgment in favor of paperwork.” that he “did the
fire but [Lales]” did not decide whether The court counts. initially that Lales was Marxen recounted individually liable under could be Marxen meeting” and “missing a sales terminated for Instead, chapter the court deter- However, Marxen sus- production.” “lack of Marxen be- that Lales could not sue mined because La- pended original termination Lales’ was not listed in the cause Marxen improve opportunity to les had asked for an right sue letter from the HCRC.16 during weekend. Neverthe- sales less, day the next after Lales was terminated supervisor, Joey Dempsey, Lales’ immediate question Pertinent that Lales lied to a customer. reported filed liability, JN also on June strict son, Jr., Gary Marxen the “used Marxen’s August summary judgment. On motion for Dempsey manager” therefore instructed car findings of fact the court issued approved Marxen of his son’s to fire Lales. (conclusions), law (findings), conclusions of decision. summary judgment in granting and an order opposition, filed a memorandum appar- all counts. The court favor of JN on Marxen, *32 supervisor, such as arguing that a summary judgment Lales’ ently granted of “agent” included in the definition was an action, harassment of the state first cause § and therefore “employer” in HRS 378-1 action, claim, fifth cause of and Lales’ 378-2(a)(l) §HRS for could be liable under claim, of the on the basis federal harassment by employer. Lales’ at- committed acts 29 stated that Faragher defense. Conclusion point asserted that one tached declaration held [Faragher Supreme the U.S. Court ] “in Martinez, Lales’s co- told who was Marxen unreasonably fails to avail plaintiff if a that su- later become Lales’ and would employer’s preven- herself of the himself or French Sub- pervisor, ass[.]” to “beat his [ ] apparatus, he or she or remedial tative “subjected allegedly sequently, Martinez damages could have recover that should not This ancestry to harassment.” [Lales] so.” if he or she had done been avoided “derogatory remarks” included harassment Lales “was further stated that Conclusion 31 orally to “complained and “threats.” Lales any com- fully procedure [of JN’s] aware appreciate the that did not [he] Marxen [] failed to follow for discrimination” and plaint ancestry.” concerning [his] made remarks 33 the court procedure. In conclusion any action in apparently did not take Marxen any summary judgment “as to claims granted However, complaints. La- response to these harass- relating to hostile work environment complaints following his les was terminated ment,” i.e., and five. claims one his'co-workers, Marxen, “and others.” rea- stated that the Lales’ declaration also B. firing were false. given by JN for Lales’ sons Marx- determined that appeal, the ICA did not have the On maintained that he Lales termination, individually liable under held en could be of his sales at the time lowest Co., WL granting No. erred in ICA held that the court 16. 9, 2012). May did (App. Marxen at *9 judgment to name summary based on the failure challenge the ICA’sdetermination. not Lales v. Wholesale Motors Marxen in the letter. 378-2(a)(l) 378-2(a)(3). §§ both HRS II. “employees The ICA concluded that are sub respect employee liability, With I would
ject to individual under HRS 378-2 subject hold that Marxen is in his they agents when are of an capacity individual on Lales’ first and second aid, abet, incite, they when compel, or coerce pursuant causes of action to HRS 378- Lales, prohibited discriminatory practices.” 2(a)(3). before, 378-2(a)(3) As stated at n Therefore, 2012 WL provides that it is an unlawful concluded, ICA Marxen was not entitled to practice “any person, employ whether an summary judgment chapter on Lales’ HRS er, not, aid,[17]abet,[18] employee, or incite/ 378 claims. 19] coercet21] compel,[20]or doing discriminatory practices forbidden Several amicus briefs filed with the ICA 378-2(a)(3), part.” this As to HRS applicability also discussed the Far- contends that “Marxen’s acts were that of an agher defense. Briefs amici curiae the agent aiding abetting ancestry ... Hawai'i, Chamber of Commerce of the Ha- harassment [ ] Lales for which he can Council, Employers wai'i and the Hawai'i individually be liable.” Automobile argued Dealers Association all adoption Faragher that the court’s defense Reply, argues Marxen that the “the- HCRC, should be affirmed. The on the oth- ory aiding abetting completely irrel- hand, argued Faragher er defense ease,” evant to this because there is no evi- 12-45-175(d). incompatible with HAR aided, abetted, incited, dence that Marxen Faragh- The ICA did not decide whether the compelled or persons coerced other in the er apply defense should or whether HAR doing discriminatory practices. Marxen 12-46-175(d) scope exceeded the points allege “[Lales] out did not that [ ] statutory authority. HCRC’s anyone Marxen aided and abetted in his Complaint,” Amended that Lales did not al- Rather, the ICA Faragher held that “as lege opposition in his to Marxen’s motion for clear, itself makes the affirmative defense summary judgment that “Marxen aided and apply supervisor’s does not “where a harass- anyone violating abetted 378- tangible employment ment culminates in ac- (a)(3) ],” 2[ and that “the first time that [La- tion, Here, diseharge[ such as a ].’ because allegation has made this les] the Re- alleged Marxen did culmi- sponse, and has not [he] still identified who discharge, Faragher nate Lales’s affir- alleged [Marxen] is to have aided or abet- Lales, apply.” mative did defense ted.” Hence, WL at *15. the ICA con- *33 Contrary cluded that it “need not address what position, to Marxen’s the evi result would be in by genuine a different case where a dence submitted Lales created a supervisor’s alleged harassment does not cul- issue of material fact as to whether Marxen [i.e., aided, abetted, tangible employment incited, minate in compelled, action or coerced Faragher apply].” would persons doing discriminatory defense Id. other in the of action,” 17. "Aid” is defined render as "to assistance” or 19. "Incite” is defined as “to move to or provide achieving "to in what is useful an end." up” "spur "urge to "stir on” or on.” Mer- (9th Collegiate Dictionary Merriam-Webster's 25 CollegiateDictionary riam-Webster's 588. 1993); Appeals ed. see also Leslie v. Board of Hawai'i, 384, 393, County 126 "Compel" urge 20. is defined as "to drive or 1071, (2006) ("This P.3d we 1080 court has said that forcefully irresistibly” or "to cause to do or may legal accepted resort to or other well by overwhelming pressure.” occur Merriam-Web- way dictionaries as one nary meaning to determine the ordi CollegiateDictionary ster's 234. statutorily of certain terms not (internal quotation defined.” omitted)). marks and brackets compel 21. "Coerce" is defined as "to an act or bring by choice” or "to about force or threat." actively 18. "Abet” is defined as "to second and CollegiateDictionary Merriam-Webster’s encourage” support or "to assist and in the purpose.” achievement of a Merriam-Webster’s CollegiateDictionary 3. 368 61, (holding that a defendant “incited 86
practices for both Lales’ first and second
Yim,
discriminatory practice” by
doing of a
See Ralston v.
129 the
causes of action.22
46,
1276,
56,
plaintiff
telling
P.3d
1286
another defendant
that
Hawai'i
summary judgment
appropri
not receive a Christmas bonus be
(holding that
is
should
only
genuine
plaintiff “‘stabbed him in the
ate
if “there is no
issue as to
cause the
”
moving party
by filing
complaint).
a discrimination
any
]
material fact and
is
back’
[
law”)
judgment
a matter of
entitled to
as
Furthermore,
declaration,
in his
Lales ex-
(internal
omitted);
quotation marks
accord
in re-
plained that Marxen took no action
Hut, Inc.,
Pizza
105 Haw
French v. Hawai'i
complaints regarding the
sponse to his
462, 470-72,
1046,
99 P.3d
1054-56
ai'i
employ-
Martinez and
harassment of
other
(2004).
light
in the
most favorable to
ees. Viewed
Lales,
put
stop
Marxén’s refusal
A.
discriminatory
following
remarks
Martinez’s
complaints
“aiding”
Lales’
could be viewed as
action,
alleges
he
In Lales’ first cause
“abetting” Martinez’s harassment
“ren-
subject
physi
that he was
to harassment and
dering
had
assistance” inasmuch as Marxen
Marxen, Martinez,
and other
cal threats
authority
to halt Martinez’s actions but
in his declara
co-workers. Lales asserted
did not do so.
that Marxen had told Martinez to “beat
tion
ass,” and that Martinez subse
[ ]
his
French
B.
quently repeatedly harassed Lales. Viewed
Lales,
action,
alleges
Marxen’s
In his second cause of
light
in the
most favorable
i.e.,
“inciting,”
as
that the defendant’s
acts
statement could be viewed
discharge
in
“abetting,”
his ultimate
were
retaliation for
“urging
“spurring
on” or
on” or
i.e.,
Scheflce,
encouraging”
complaints.
discrimi
this court ex-
“seconding or
Martinez, especially
light
“a
claim under HRS
natory
plained
acts of
retaliation
378-2(2)
test[.j”
authority
subject
three-part
position
supervisor.
[a]
Marxen’s
First,
426,
“the
Schefke,
96 Hawai‘i at
such retaliation
that” he or
Viewing
light
the evidence in the
most
she,
alia,
opposed any
inter
“has
practice
Lales,
favorable to
issues of material fact
Second,
forbidden
Chapter
[HRS
378].”
exist on Lales’ first and second causes of
plaintiff
“if the
prima
establishes a
facie case
regarding
action
subject
whether Marxen is
retaliation,
the burden shifts to the defen-
378-2(a)(3).
§
based on HRS
provide legitimate,
dant to
a
nondiscriminato- Hence, summary judgment
wrongly
was
ry
employment
reason for the adverse
ac- granted,
granting
and the court’s order
sum-
Third,
tion.” Id.
“if the defendant articulates mary judgment as to Lales’ first and second
reason,
such a
the burden shifts back to the
causes of action should be vacated.
plaintiff to show
demonstrating
evidence
given by
the reason
pretex-
defendant is
III.
tual.” Id.
However,
incorrectly
the ICA
determined
Here, Lales’ declaration established that
that Marxen
individually
was
liable to Lales
“opposed”
he
prohibited by
378-2(a)(l).
§
under HRS
The definition of
378—2(a)(1)
§
HRS
complaining to Marxen
“employer”
plainly
in HRS 378-1
does not
Although
provided
others.
Marxen
non-
include
agents
employees,
individual
or
such
diseriminatory
termination,
reasons for the
Marxen,
as Marxen.
agent
as
presented
Lales
evidence that
the reasons
employee,
or
thus cannot
individually
be held
given by
pretextual
Marxen were
inasmuch
378—2(a)(1),
liable under HRS
ap-
which
as Lales asserted that he did not have the
plies only
“employers.”
This construction
terminated,
lowest sales when he
(1)
did not
ordinary
is consistent with
and usual
anyone being
know of
missing
terminated for
meaning
employed,
of the words
other
meetings,
sales
and did not lie to a
customer.
provisions
Chapter
such as HRS
Hence, Lales met his burden of establishing
378—2(a)(3),
and the overall scheme of
prima
facie ease of retaliation under HRS Chapter
interpretations
federal
378-2(a)(2).
analogous provision
in Title VII.
deposition,
In his
Marxen
A.
although
personally
he did not
make the
reiterate,
To
HRS 378-1 defines an “em-
Lales,
decision to fire
ultimately approved
he
ployer”
“any person,
as
including the State
that decision.
foregoing,
Based on the
Marx-
any
or
political
of its
subdivisions and
approval
en’s
of Lales’ termination could be
agent
person,
of such
having one or more
“aiding”
construed
“abetting”
the dis-
employees.”
added.)
(Emphasis
§ 1-
criminatory
firing
act of
Lales in retaliation
14 commands that
words of a law are
“[t]he
complaints.
Scheflce,
Lales’
See
96 Ha-
generally to be understood in their most
(“[U]nder
wai'i at
is Thus, ings”). employer principal. giving or other signification,” agent the term its “usual Thus, using agent in the term in the same and attending “without so much to the literal the employee, as it is manifest that sentence strictly grammatical construction agent to be legislature did not intend for an
words,” interpreted in agent must be synonymous inclusive of construed as with or entity §HRS 378-1 to mean an other than (or employee supervisory employee) the term con- “employer.”23 an This construction is retaining indepen- § in HRS 378-1. reading provisions the other in firmed agent significance of the terms and dent 378, materia, Chapter pari HRS with the employee, legislature indicated that both § discussion definition 378-1. See agents employees employ- act under the then, Agent, would not subsumed infra. Therefore, agent as er’s direction. the term “employer.”24 term within the § in HRS 378-1 is not intended to be used synonymous employee. with the term “employee” person is who works in “[a] An express of another under an service “employer,” which Accordingly, the term hire, implied contract of under which the § in HRS 378-2 indicates who be sued right has the to control the details discriminatory practices, would not in- performance.” of work Black’s Law Dictio- employ- agent, supervisory clude an such as (9th 2009). Obviously, nary ed. an em- Agents supervisory ees. ployee employer. then is not an Under the subject personal therefore would not be terms, meaning and in the plain of both §HRS 378-2.26 For similar 378-1, “agent” of HRS neither an context reasons, indisputable it seems that an em- “employee” “employer.” an nor an can be not, “employ- ployee, is not an er” and therefore would not fall within “agent” synony “employee” If were 378-2(a)(l) “employer” term in HRS so as no use both mous there would be need to subject liability under that to be to individual agent As in HRS an terms. used section. otherwise).25 (supervisory not an juxtaposi two words are used in “close When B. tion,” may legislature it be “inferred explained that “each meaning[s].” the difference in This court has also realized Cf. 98, Fasi, part or section should be con- [of statute] In re 63 Haw. 634 P.2d every part or (holding “where ‘shall’ and strued in connection with other produce a harmonious ‘may1 juxtaposition, are used in close we infer section so as to 326, Noh, legislature realized the difference in whole.” Kam v. 70 Haw. (1989). Interpreting “agent” meaning and intended that the verbs used P.2d Thus, legislative “employer" in- to determine the intent from the lan- 23. cannot be defined to (internal quotation guage employer’s agent. of the statute itself.” an clude omitted)). Hence, not marks HRS 378-1 does agent may "expressly state” that an be an em- "agent” synony- If were as the term construed ployer. employer, "agent” given would be mous with by Judge signification.” "usual As its 12-46-175(d) plain language of HAR literally 25. The Mollway, interpreted the statute would provides that an is liable for the acts "agent” "employer” provide would be an agents supervisory employees. The both its only agent employees.” if "had one or more it Council, HCRC would not have used both terms unless County 2007 WL Lum v. Kauai recognized "agent” is dif- that the definition of (D.Haw. 2007) J.). (Mollway, at *11 Nov. "supervisory the definition of em- ferent from Judge Mollway's interpretation was affirmed Additionally, explained supra, ployee.” if Council, County Circuit. v. Kauai the Ninth Lum "agent" "employee” synonymous, were Cir.2009) (9th Fed.Appx. (unpub- 358 lished) ("We legislature necessary have for the would not been analy- agree with the district court’s in HRS 378-1. to use both terms language[.]”). statute’s sis of the Hawai’i legislative intent is also to be determined from Thus, language legislature. employer’s "agent” may held used See Hill v. not be individually Inouye, liable for his or her sole discrimina- 90 Hawai’i 378-2(a)(l). ("The tory statutory starting point conduct under construction
371 incorporating principles respondeat as are relevant to prac- unlawful superior is consistent with the overall scheme appears unlikely legislature tices. It 378-2(a)(3), Chapter § of HRS In HRS supervisors respon- intended individual to be legislature subjected liability “any per- to records, keeping employment sible for which employer, employee, not,” son, whether an or would be the treating effect of individual “aid[ed], abet[ted], ineite[d], eompel[led], who “agents” supervisory employees or as “em- doing any or coeree[d] of the discrimi- ployers.” See Chatman v. Gentle Dental natory practices part.” forbidden this Waltham, F.Supp. Center 973 added.) (Emphasis The provisions other (D.Mass.1997) (interpreting provi- similar § expressly apply only 378-2 to em- noting sions of Title “[i]f VII that ‘em- ployers organiza- or entities such as labor ployer’ consistently were read throughout legislature’s specific tions. The inclusion of supervisors agents statute to include as “employees” being subject the term as to employer, it proble- would lead to the 378—2(a)(3) liability only § under HRS con- supervisors matic result that individual would legislature firms that the did not intend to also shoulder these burdens” and that “[i]t subject employees to under the other unlikely Congress that impose intended to 378-2, provisions § of HRS including HRS such administrative duties individual su- 378-2(a)(l), § apply that “employer.” to an pervisors”). provision Inasmuch as no other in HRS Furthermore, principle it is a fundamental § employees, 378-2 refers to it is evident “[cjourts statutory construction that are employee § that under HRS 378-2 an statute, give parts bound to effect to all of a subject liability only to respect with to the clause, sentence, ... 378-2(a)(3). no or word § shall be acts described in HRS void, superfluous, construed as any insignifi lack or employee other reference to an cant if employees, including supervisory legitimately means that a construction can be employees, subject provi- are not give preserve other found which will force to and § sions of HRS such as HRS 378- Dejetley all words of the statute.” 2(a)(1), specifically only which Kaho'ohalahala, refers to an
employer. (2010). The text of HRS 378-2 indi- 421, 434 repeat, P.3d To HRS 378- that, legislature cates when 2(a)(3) meant against “any person, allows suit subject employees individual un- employee, employer, whether or not....” Chapter explicitly. der HRS it did so added.) (Emphasis employees, Were such as Inc., Agency, See also Luzon v. Atlas Ins. supervisory employees, encompassed in the (D.Haw.2003) F.Supp.2d 1265 n. 1 definition of then the word “em J.) (“[T]he (Mollway, legislature clearly knew 378-2(a)(3) ployee” in HRS would be su how to include within a statute’s perfluous inasmuch as an would seope[.]”); Group, White v. Media Pacific already have been covered the reference Inc., (D.Haw.2004) F.Supp.2d Hence, “employer” in provision. con J.). (Ezra, struing employer meaning super the term
Also, 378-6,27 visory employee, “every under HRS em- would render the term “em 378-2(a)(3) ployer” keep ployee” must “make and records” that meaningless.28 (1993) provides 27. HRS 378-6 as follows: rule issued hereunder or which aid (a) part. investigation the enforcement of this connection of a employer, employment agency, Every (b) complaint part, filed under this whenever organization appears to the commission that an unlawful labor shall: discriminatory practice may keep have been or is Make and records relevant to this committed, being the commission’s authorized part, and representative premis- shall have access to the therefrom, reports Make com- such as the parties persons reasonably es of the con- prescribe by mission shall rule or order. thereto, records, documents, nected and other added). (Emphases complaint material relevant to the have the and shall examine, right photograph, Insofar as is construed to include material, copy may question employ- "agent,” the term "or other” would to extent investigation ees and make to determine also be nullified. any person part whether has violated this *37 (9th Cir.1993).29 Thus, 583, the federal
C. 587 “employer” in Title interpretations courts’ Finally, this court has held that “the feder § “agent” indicate that in HRS 378- VII also interpretation [of of Title VII al courts’ imposing liability an 1 should be read as Rights Civil Act of is useful 1964] Federal respondeat employer under the doctrine of construing employment Hawaii’s discrimina allowing against superior, and not as suits Teague, v. tion law.” Sam Ltd. Hawai‘i employees agents. as individual Comm’n, Rights Civil (1999). 1104, 1116 This is because employment discrimination law “Hawaii’s IV. provide employ victims of was enacted to hand, On the other the ICA concluded that remedies, the same un ment discrimination subject liability under HRS Marxen is to law, provided by Title der state as those 378-2(a)(l) because, “agent,” § as an he falls (citing Rep. H. Stand. Comm. Id. VII[.]” statutory “employer” definition of within the Journal, 1166; in 1981 House at S. No. § in HRS 378-1. 1109, in Rep. Comm. No. 1981 Sen Stand. 1363). Journal, ate at A. “employer” definition of is sub-
Title VII’s
stantially
provided in
similar to the definition
plain
that “[a]
The ICA first contended
42
§
Pursuant
U.S.C.
378-1.
statutory
reading
provisions supports
of the
2000e,
“employer”
per-
§
defined as “a
an
employee,
the conclusion that an individual
industry affecting
engaged
son
in an
com-
agent
who is an
of an
can be held
”
who has fifteen or more
merce
Lales,
individually
‘employer.’
an
liable as
working day
twenty
in each of
or more
each
However,
at *10.
in the
2012 WL
preceding
calendar weeks
the current
grammatical structure of HRS
378-1 an
any agent
per-
year,
calendar
of such
reasonably
“agent” cannot be
construed as
added.)
(Emphasis
Nearly every fed-
son.”
“employer,” applying
recognized
well
can-
an
that
the word
eral circuit has concluded
construction,
statutory
ons of
see discussion
“agent”
expression
is “an unremarkable
supra,
authority in which we
and federal
respondeat
superior—that
See,
Lissau,
join.
e.g.,
generally
159 F.3d at
employer’s
personnel actions taken
181.
employer.”
liability
agent
create
for the
Lighting Corp.,
Birkbeck v. Marvel
30 F.3d
B.
(4th
(internal
Cir.1994);
quotation
510
Second, the ICA maintained that the ex
added);
omitted)(emphasis
marks
see also
liability”
tension of “aider and abettor
Service, Inc.,
Lissau v. Southern Food
159
subject
(4th Cir.1998)
person
suggests
agents
are
also
(identifying
F.3d
181
deci-
Lales,
employers.
second, third, fifth, seventh,
as
2012 WL
from the
sions
circuits,
argued
*11. The ICA
eighth, tenth and eleventh
and the
individuals to
circuit,
would be inconsistent to allow
which concluded that individual
D.C.
aiding
abetting
under HRS
supervisors
employers
under Title
be sued
are
“ ‘immunize[30]
VII);
Inc.,
378-2(a)(3),
yet
the in
Int’l
991 F.2d
Miller v. Maxwell’s
"employee”
“it is inconceivable that
terms
2(a)(3)
or "other”
378-
29. Miller concluded that
Congress
provi-
to allow civil
employees''
to run
intended
and would be inconsistent with the
against individual
because of "the
subjecting employers
Chapter
sions of HRS
statutory
of Title VII.
ey
scope
F.Supp.
decision as to
but
at 238
nothing
question
imposing
liability
about
of indi-
individual
on
whether the
agents
em-
under Title VII would be inconsistent
agents
vidual
should be held liable as
provisions subjecting “employers”
ployers
Nothing
was even
considered.
history
keeping requirements).
legislative
legislature’s
record
evinces
defining
expan-
purpose
“employer”
more
D.
Thus,
sively
in Title
than
the size
VIL
employer provides
subjecting
basis for
no
Fourth,
Steinberg
the ICA contends that
agents
individual
(1998),
Hoshijo, 88 Hawai'i
ty
agents.
on individual
that is the
very
Nothing
Teague
issue here.
in Sam
A.
indicates the definition of
in HRS
HCRC,
Hence,
respect
With all due
I
disputed by
parties.
378-1 was
be-
imposition
lieve the
Teague
of strict
Sam
also did not resolve
whether
*40
employer for
agent
employee may
supervisory employ-
acts of its
or
be sued as an em-
12-46-175(d)
sum,
pursuant
§
ees
to HAR
ployer
§
under
exceeds
HRS
378-2.35 In
nei-
scope
authority given
the
of
Steinberg
Teague
ther
to the HCRC
expressly
nor Sam
or
Chapter
directly
question
378. This is because strict
decided the
of whether a
beyond
extends
the
supervisory employee
employer
doctrine of re-
was an
un-
spondeat superior inhering
§
§
in
der HRS 378-2.
HRS
378-2
liability principles
in Section 219 of the
Relatedly, contrary
position
of La-
Faragher,
Second Restatement.
524 U.S.
Cf.
les,
did not hold that individual em-
Schefke
791-92,
2275;
118 S.Ct.
Meritor Sav.
ployees may
“employers.”
be held liable as
Bank,
Vinson,
57, 72,
FSB v.
477 U.S.
Schefke,
In
plaintiff argued
the
that the trial
2399,
(1986).
S.Ct.
work environment
(Marshall, J.,
at
latter
supervisory employees.42
harassment of its
former,”
of the
because
quences than abuse
12-46-175(d)
references
Nothing in HAR
authority
vested
both cases it is the
“[i]n
agency prin-
or the
the Second Restatement
employer
supervisor
that enables
Instead,
noted,
supra.
ciples discussed
wrong.”
(emphasis
Id.
him to commit
12-46-175(d)
em-
provides
“[a]n
HAR
added). Hence,
apparent
it
that under
is
responsible
those of
ployer
for its acts and
Restatement,
219(2)(d) of the Second
section
employees with
agents
supervisory
its
employer
generally
will
be liable for
an
of ances-
respect to harassment on the basis
employees.
supervisory
harassment
specific
regardless
acts
try
of whether the
804,
However,
automatically
their occurrence.”
known of
ed.)
219(2)(d)
employ-
that an
By generally providing
vicariously
section
liable under
agents
responsible” for the acts of its
“there are
er “is
because
the Second Restatement
respect
employees with
might
supervisor
com
acts of harassment a
any qualifications, the
without
status makes
supervisor’s
mit” where “the
strictly
Ellerth,
employers
regulation plainly holds
U.S. at
little difference.”
“liability
liability is defined as
“a su
liable. Strict
example,
For
where
B.
Contrary
to the text of HAR 12-46-
175(d)
argued
It has
imposition
been
placed
and the construction
on it
HCRC,
employers
majority
absolute
for the acts of
intimates
unfair,
12-46-175(d)
supervisory employees may
their
be
“HAR
is consistent with the
*44
theory
inasmuch as it
be
im-
agency
unreasonable or
of
set forth in the Second
ICA,
amicus brief before the
the
Majority opinion at 355 n.
its
Restatement.”
12-46-175(d)
§
the
majority
HCRC cited HRS
P.3d at 364 n. 19. The
infers
that,
proposition
supervisory
that “in cases of
of HAR
based on the last sentence
harassment,
12-46-175(d),
employer
vicariously lia-
the
is
§
that the HCRC will examine
ble,
(Emphasis
and there are no defenses.”
“whether an
the circumstances to determine
added.) Similarly, in its amicus brief before
supervisory
agency
or
individual acts
a
court,
unambiguously
the HCRC
de-
supervisory
the
em-
this
capacity,” and “whether
12-46-175(d) imposes
§
by
clared that “HAR
ployee was aided
the existence of the
vicariously liability
employers for
liability
‘strict’
on
agency relation” before strict
will be
supervisor
The HCRC’s inter-
opinion
n.
harassment.”
imposed. Majority
at 355
12-46-175(d)
(internal
provid-
HAR
as
quotation
pretation of
P.3d at 364 n. 19
marks
omitted).
employer in cases of
ing no defenses to an
punctuation
supervisory harassment could not be clearer.
face,
However,
on its
the reference
reading
plain
This
is consistent with the
lan-
12—46—175(d)
HAR
to the HCRC examin-
regulation:
imposes
it
guage of the
strict
ing
alleged
circumstances of the
offend-
the
liability
qualifica-
employer
on the
without
job pertains only to whether
ing individual’s
tion.
acting
supervisory
an “individual” was
Aso,
amicus brief before the
the HCRC’s
agent
or
of the
and not
HCRC had held
ICA
that
the
surrounding
scope
the
the
to
circumstances
hearings
petition
parts
“eliminate
on a
agency
employment or the effect of the
existing rules that established vicarious
[the]
For,
rule,
relationship.
under the
the fact
...
part
employer
the
of an
were “authorized” or “forbid-
that the acts
by
supervisor”
instead
employer
expressly
den”
the
are
irrele-
“recognize
created
the affirmative defense
liability.
purposes
imposing
Simi-
vant for
[Faragher
public hearing,
At a
the
].”
actually
larly,
employer
the
knew or
rejected
proposed changes
HCRC
the
but
should have known makes no difference and
proposed
“instructed its staff to draft
rules to
employer
is not relevant under the rule. The
implement
[Faragher
the
defense.” How-
]
respect
is considered liable without
12-46-175(d)
ever,
appears
that HAR
knowledge. Consequently, the HCRC
act or
has not been amended to date.
relationship
an individual’s
to his
examines
only
to determine whether the em-
again
rule
This confirms
that the HCRC
ployee
agent
or
fact
liability.
imposes
Faragher
If the
de-
strict
However,
employee.
once an individual is
applied,
employer would
entitled
fense
be
agent
supervisor,
determined to be an
or
a defense that
to assert as
ipso
employer is liable for the harassment
prevent
care to
and cor-
exercised reasonable
only specific
This is because the
“cir-
behavior,
harassing
failed
rect
and that Lales
facto.
“examined” are the
cumstances”
are
advantage
preventative
take
or correc-
“employment relationships”
“job
opportunities
provided
available
that no
tive
performed by
individual,”
functions
HAR
But,
taken.
tangible employment action was
12-46-175(d)
added),
(emphasis
not the cir-
apparently
inasmuch as the HCRC
believed
agent
supervi-
cumstances of whether the
12-46-175(d)
to HAR
an amendment
acting
scope
employ-
within the
sor was
defense,
recognize
Faragher
necessary to
agency relationship
ment or aided
HAR 12-46-
plainly
the HCRC
construed
language
employer.
plain
with the
Given the
175(d)
with its assertion before
as consistent
rule,
agent
that the individual was a
court that
there are no
the ICA and this
supervisor
enough
impose
employer defenses to the rule.
proof
produced
respect
need be
no
majority’s
also
Finally,
construction
knowledge
employer’s
actions or
or lack
precept
defer
governing
with its
clashes
thereof.
interpre
given to the HCRC’s
ence must be
Employ
analysis
Additionally,
majority’s
tation
Gillan Government
12-46-175(d)
Co.,
D.
by the
agency
existence of the
relation]
Contrary
then,
majority’s position,
to the
perpetrating harassment.”
plain
12-46-175(d)
language
the
of HAR
Restatement,
Section 219 of the Second
does not at all
agent
consider whether an
supra,
discussed
right
strikes the
balance
supervisor
acting
scope
within the
of his
positions
between the
par-
advanced
authority
relation,
agency
or was aided in the
hand,
ties and the various amici. On one
supervisor
authority
whether the
“has no
under
employer
the Second Restatement the
employee,
over an
because the
two work
vicariously
supervisor’s posi-
liable when a
wholly
parts
different
employer’s
busi-
supervisor
tion
perform
enables the
acts of
Meritor,
ness.”
All amici appropriate it is to would be the same and are well-established agency principles look to to determine existing law. employer’s liability contours of the for the supervisors. harassment of its The HCRC IX. acknowledges that applied this court has broad construction employer’s liability Faragher to an defense is irrelevant to ac- Supreme inasmuch as “the Hawai'i Court has Chapter tions under 378 because it was expansive taken an adopted view of whether discrimi- legislative history on the basis of natory conduct scope falls within the of an unique that was to Title and has no VII liability,” in history about the limits of legislative of HRS tor
analogue in the
*46
Rights Act of 1991. Id. at
supra,
supervi
enacting
a
the Civil
Chapter
As
4,
that act
the
n.
219 of the recog Second Restatement and as
nized nothing under Title VII. Because
Chapter expressly impliedly imposes
absolute anon HAR 12-
46-175(d) must be deemed to have exceeded 378-2(a)(l). scope of HRS
XI. foregoing, respectfully
Based on the I con- part
cur in in part. dissent
STATE of ex rel. David M.
LOUIE, Attorney General, and Dean H.
SEKI, Comptroller of the State of Ha
wai'i, Petitioners/Plaintiffs-Appellants,
Cross-Appellees,
HAWAII GOVERNMENT EMPLOYEES
ASSOCIATION, AFSCME LOCAL NO.
152, AFL-CIO; Workers, United Public 646, AFL-CIO;
AFSCME Local No.
Royal Corporation; Royal State State Company, Limited;
National Insurance Royal Agency, Inc.; Insurance Vol
untary Employees’ Benefit Association Hawaii; Management Applied Pro
gramming, Inc., Respondents/Defen
dants-Appellees, Cross-Appellants.
No. SCWC-29352.
Supreme Court of Hawai'i.
Feb.