Lead Opinion
Plaintiff-appellant Karyn Nelson brought an action against action against defendants-appellees the University of Hawaii, Bart Buxton (Dr. Buxton), and Kwok W. Ho (Dr. Ho) [hereinafter, collectively, Defendants], involving numerous claims arising out of her employment as an assistant professor at the university. Following a jury trial, before then-circuit court judge, the Honorable James R. Aiona, Jr., the jury returned a verdict in favor of Nelson on her claim of negligent infliction of emotional distress (NIED), awarding her $50,000.00 in damages; the jury found in favor of Defendants on all other claims presented, including Nelson’s claim of employment discrimination. Thereafter, the trial court granted Defendants’ motion for judgment notwithstanding the verdict (JNOV) and entered final judgment in favor of Defendants on all claims. Nelson appeals the judgment, alleging that the court erred by: (1) excluding Nelson’s
I. BACKGROUND
In August 1992, Nelson was hired by the University of Hawai'i at Manoa (the University) as an assistant professor in the Department of Health, Physical Education, and Recreation (HPER) of the College of Education. Nelson alleged that she was subjected to discriminatory treatment and harassment based on her gender throughout her employment, but that problems with Dr. Ho, the chair of HPER, and Dr. Buxton, a fellow faculty member, escalated in 1994. At that time, Nelson also began experiencing seizures, allegedly as a result of stress. Although her contract was renewed for an additional year, Nelson claimed that the discriminatory treatment continued and that the University failed to provide reasonable accommodations for her disability.
After attempting to informally resolve the issues within HPER, Nelson filed a formal complaint on February 3, 1995 with the University’s Equal Employment Office (EEO), alleging disability discrimination and sexual harassment. She filed a separate complaint with the University’s EEO on May 16, 1995, alleging retaliation triggered by the filing of her initial complaint. Nelson’s complaints were denied by the University on the basis of insufficient evidence, as were her appeals. Nelson filed a charge of discrimination with the Hawai'i Civil Rights Commission (HCRC) on July 7, 1995 and received a right to sue letter from the HCRC on October 16, 1995. She also filed a complaint with the United States Equal Employment Opportunity Commission (EEOC), and the EEOC issued a right to sue letter on October 11, 1995.
On January 4,1996, while still employed as an assistant professor, Nelson filed a complaint in the first circuit court against the University, Dr. Buxton, and Dr. Ho, which included claims of: (1) employment discrimination, under Hawai'i Revised Statutes (HRS) § 378-2 (Supp.1994); (2) violations of her constitutional rights;
In the spring of 1996, after she filed suit, Nelson’s annual contract was not renewed, and her employment terminated at the end of May 1997. Although Nelson filed a formal grievance with the University, alleging ongoing discrimination and retaliation, she did not file a separate charge of discrimination with the EEOC or the HCRC based on the nonre-newal of her contract in 1996. Nelson did not move to amend her complaint to include the nonrenewal of her contract as a specific incident of discriminatory treatment or to include a separate claim for relief based on the nonrenewal.
On October 21, 1998, Defendants filed a motion for judgment on the pleadings and summary judgment. On November 18, 1998, then-circuit court judge, the Honorable Kevin S.C. Chang, granted Defendants’ motion in part, dismissing with prejudice Nelson’s claims for constitutional violations, violation of public policy, negligent retention, and in-junctive relief. The circuit court denied Defendants’ motion with respect to all other claims without prejudice to a motion for directed verdict at trial. Consequently, the
A. Motion in Limine
On November 25, 1998, Defendants filed a motion in limine to exclude “any reference by [Nelson] that the nonrenewal of her contract was due in any way to retaliation or discrimination.” In their motion, Defendants argued that the nonrenewal of her contract was not an issue in this case because (1) Nelson’s failure to file a charge of discrimination with the EEOC or the HCRC, based upon the nonrenewal, precluded the court from considering the nonrenewal as part of the discrimination claim and (2) Nelson had not stated a claim for wrongful termination. At the hearing on the motion, Nelson argued that the nonrenewal of her contract was the result of the ongoing sex and disability discrimination and retaliation during her tenure at the University. Nelson maintained that she suffered emotional distress as a result of the discrimination and that the Defendants failed to provide reasonable accommodations for her disability, which eventually affected her ability to perform her job. Thus, Nelson argued that the nonrenewal of her contract was relevant to the discrimination and emotional distress claims as well as the damages resulting from those claims. The trial court granted Defendants’ motion, stating as follows:
Defendants’] motion in limine is granted in relation to, and only in relation to, the fact that it is not a cause of action; in other words, that their non-renewal of the contract is not a cause of action in relation to sexual discrimination or retaliation.
Now, that’s a very fine ruling in the sense that I am not saying ... that you’re precluded from bringing up, as [the defense] has conceded, any evidence relating to the way your client was treated throughout her tenure at the university, and that obviously is admissible, but the renewal process is precluded.[2 ]
B. Evidence at Trial
Testimony adduced at trial, relevant to Nelson’s employment discrimination and emotional distress claims, included, inter alia, the following:
Nelson testified that, prior to accepting the position of assistant professor, she disclosed that she: (1) suffered from epilepsy; (2) had undergone brain surgery two years earlier, after which she had been free from seizures; and (3) was able to perform her duties. Nelson claimed that, although |Drs. Ho and Bux-ton mаde sexually offensive remarks, jokes, and innuendos and exhibited hostility toward women throughout the time she was employed, she stated that they did not make sexual advances toward her. For example, Nelson testified that Dr. Ho made repeated comments about how living in Hawaii required two incomes and how she needed a man in her life. According to Nelson, Dr. Ho also suggested that she should go to Chinatown and find an old Chinese gentleman to take care of her. Since her employment in 1992, Nelson had participated in a research project on Molokai coordinated by Dr. Ho and claimed that Dr. Ho treated her differently from other male professors on the research team. For example, Nelson claimed that she encountered difficulties in obtaining material from Dr. Ho that was necessary for her to evaluate data for publication.
With respect to Dr. Buxton, Nelson testified that he repeatedly made offensive and degrading comments to her and about women in general. For example, Nelson claimed that, when she was ai’ranging books and files in her new office at the University, Dr. Bux-ton, whose office was next to hers, remarked, “That’s how we like to see women around here on their knees and begging.” Ron Het-zler, another HPER faculty member at the time, testified that he recalled Dr. Buxton
In October 1994, Nelson organized a joint conference between the National Association for Gilds and Women in Sport and the Hawaii State Association for Health, Physical Education and Recreation and Dance educators. Allegedly, Drs. Ho and Buxton were displeased and skeptical about the conference and her participation in it, and Dr. Buxton asked Nelson whether “this [was] going to be a women’s conference? Is this for women only?” Nelson claimed that her relationship with Dr. Ho further deteriorated after the conference.
Nelson stated that, around November or December 1994, she had several meetings with Ho about disparities in teaching credit distribution between her and other male professors,
Nelson testified that, in December 1994, Dr. Buxton told her and two other male professors that she would be “canned.” Het-zler also admitted telling Nelson about rumors that she would be fired. Dr. Buxton denied telling Nelson that she would be fired; however, he admitted that he had a conversation with another faсulty member, Dr. Lang-ford, in which they discussed the fact that the personnel committee was probably struggling ■with her contract renewal.
Sometime between January 3 and 10,1995, Nelson went to the Dean of the College of Education to discuss her concerns about disparate treatment and her problems with Dr. Ho. According to Nelson, the Dean listened to her concerns and suggested that Nelson address her concerns to Dr. Ho in writing. Shortly afterward, Nelson was told by Dr. Ho that her annual contract renewal evaluation would be conducted in January, two months earlier than she anticipated based on her previous years’ experience and what she believed was the policy with respect to other faculty. Although Nelson’s contract was renewed for another year by a four-to-one vote of the personnel committee, she received negative comments about her performance. Dr. Ho’s independent evaluation of Nelson reflected his concerns about her lack of publication in a peer-reviewed journal, referred to as a “refereed journal.”
Nelson testified that, prior to her evaluation and while at the University, she wrote and published an instructor’s manual on Human Motor Development that was “on the shelves” in January 1995. She also testified that she published several papers and gave presentations at the University, obtained grants, and published state performance standards for physical education for use by the Hawai'i Commission on Performance Standards for the University.
Nelson also claimed that, in January 1995, she had an epileptic seizure for the first time since her brain surgery in 1990 and that, thereafter, her health began to dеteriorate due to the stress of the discriminatory treatment. As previously stated, Nelson filed a formal complaint with the University’s EEO office in February 1995 and eventually filed a
Nelson claimed that, in 1995 and 1996, the University denied several requests for accommodations for her disability and that the discriminatory treatment continued. On cross-examination, Nelson admitted that several of her requests, such as a reduction in work load and relocating her office away from Dr. Buxton, were granted. Her contract was not renewed in 1996. Nelson claimed that she has been unable to work since she left the University in 1997 and that she was living on “Social Security disability.”
Dr. Mary Ann Prater (Dr. Prater), formerly chair of the Department of Special Education, testified that she was asked to be substitute chair of the HPER department personnel committee reviewing Nelson’s contract renewal, in 1996 because the HPER department needed an external evaluator. Dr. Prater stated that she recommended renewal because Nelson had submitted articles for “referee review,” had written a book, had written a grant application for external funding, and her teaching evaluations were positive.
Nelson’s psychiatrist, Shepard Ginandes, M.D. (Dr. Ginandes), who had been treating Nelson since 1995, testified that Nelson had a seizure disorder that could be triggered by stress and depression and opined that her seizures returned in 1995 as a result of stress and the episodes, as described by Nelson, involving Drs. Ho and Buxton. Nelson suffered from major depression, panic attacks, and seizures that posed a major risk to her health. Dr. Ginandes testified that Nelson was now “totally disabled” because of “the stress she was subjected to in her job at the University.” He claimed that Nelson was not only unable to return to work at the University, but “unable to work in any work place.” She also would experience pain and suffering in the future for the rest of her life. Further, Dr. Ginandes stated that Nelson had an outstanding bill at his office, her medical bills for services were about $10,000 per year, and her medication costs ranged from $300 to $500 per month.
In addition to Drs. Ho and Buxton, who denied most of Nelson’s allegations, see discussion supra, Defendants called several faculty members to testify. Charles T. Araki, former interim dean of the College of Education, testified that he reviewed the HPER department personnel committee’s recommendations regarding Nelson’s contract renewal in 1996 and that Nelson’s contract was not renewed because of her “lack of publication.” The court admitted into evidence a letter written by Araki to Nelson informing her of her nonrenewal. Nelson objected to the admission of a memorandum to Araki from the personnel committee regarding its recommendations for nonrenewal, apparently based on the trial court's prior ruling on the motion in limine regarding evidence of the nonrenewal, but the memorandum was eventually admitted into evidence.
Defendants also called Boyd Slomoff, M.D. (Dr. Slomoff), a psychiatrist who had conducted an independent medical examination (IME) of Nelson in March 1997 and had reviewed her medical history. Dr. Slomoff testified that Nelson had a history of depression and opined that she suffered from an occuрational problem and an adjustment disorder, which he also referred to as a personality disorder, but that she was capable of working.
After Defendants called them last witness, Nelson proffered rebuttal evidence of Nelson’s publications between 1995 and 1996 to challenge Defendants’ explanation for the nonrenewal of her contract in 1996. Nelson also sought to recall Dr. Ginandes to counter Dr. Slomoffs testimony. Defendants argued that Nelson should have brought out this
In closing argument, Nelson claimed damages in the amount of $300,000 for medical services, $108,000 for medication, $62,000 for lost wages, $940,000 for future loss of income, and $900,000 for general pain and suffering.
During the settling of jury instructions, the trial court refused six of Nelson’s supplemental instructions regarding the elements and definition of sexual harassment. Instead, the trial court gave Defendants’ requested instructions on sexual harassment.
C. Verdict
On December 16, 1998, the jury returned a verdict, awarding Nelson $50,000 in general damages for NIED, but found in favor of Defendants on all other claims. On December 18, 1998, Defendants filed a motion for JNOV, and Nelson filed a motion for new trial or to amend the judgment. On December 28, 1998, the trial court granted Defendant’s motion for JNOV, dismissed the NIED claim, and denied Nelson’s motion for new trial. Judgment was entered in favor of Defendants, and Nelson’s timely appeal followed.
II. DISCUSSION
A. Admissibility of Rebuttal Evidence
Nelson contends that the trial court abused its discretion by denying her request to present rebuttal evidence to show that Defendants’ proffered reason for the nonre-newal of her contract in 1996, i.e., lack of publication, was a pretext and to refute Dr. Slomoffs testimony regarding Nelson’s ability to work. Defendants argued that such evidence was “just rehashing what has already been submitted or should have been submitted to the [cjourt in [Nelson’s] ease-in-ehief.” The court disallowed Nelson’s proffered rebuttal evidence, stating, in pertinent part, as follows:
[R]ebuttal evidence is evidence which is used to rebut evidence introduced primarily by the opposing party in which ... the plaintiff ... in essence would have been surprised by what it has. In other words, that you had no idea that the evidence that was being brought forth was going to be brought forth by the defendants. And you did not have an opportunity to either discover it or to introduce any evidence in your [case-in-chief] to counteract it.
And, obviously, what you have proposed now is not rebuttal evidence as far as this [c]ourt is concerned. So, accordingly, I’m precluding your proffered rebuttal evidence.
“In civil trials generally, the introduction of evidence in rebuttal and in surre-buttal is a matter within the discretion of the trial court and appellate courts will not interfere absent a[n] abuse thereof.” Housing Finance and Dev. Corp. v. Ferguson,
[a] party cannot, as a matter of right, offer in rebuttal evidence which was proper or should have been introduced in chief, even though it tends to contradict the adverse party’s evidence and, while the court may in its discretion admit such evidence,it may and generally should decline to admit the evidence.
Id. (citations omitted).
Nelson’s proffered evidence of her publications was “confirmatory of her case” in that it tended to prove that she fulfilled her research responsibilities, worked in collaboration with colleagues, and made progress toward publications as recommended in her 1995 evaluation' and that, therefore, the negative evaluations and adverse employment decisions were based on discrimination or retaliation rather than on her performance. The evidence also specifically rebutted Defendants’ claims that Nelson was terminated because she did not fulfill her duties and that she was not entitled to damages for her loss of income. Some of Nelson’s proffered rebuttal evidence, which included an article co-authored with another member of the faculty, also specifically rebutted negative comments made in the personnel committee’s evaluation, e.g., that Nelson “has chosen to isolate herself from her colleagues!..]” See supra note 4.
Because the trial court’s ruling on the motion in limine ostensibly precluded evidence of the 1996 contract renewal process, we cannot conclude that Nelson “held back” confirmatory evidence of her case. Moreover, it is unreasonable to suggest that Nelson should have anticipated that Defendants would present specific evidence of the 1996 contract renewal process—especially in light of them motion in limine—or that they would be allowed, over objection, to introduce the 1996 personnel committee’s evaluation of Nelson. Although she presented some evidence of her publications during her case-in-chief, it was introduced primarily in the context of refuting Dr. Ho’s 1995 negative evaluation and discussing her work load generally.
At trial, Nelson also sought to recall Dr. Ginandes in rebuttal to refute Dr. Slo-moffs testimony that Nelson was able to continue working in March 1997. Specifically, Nelson proffered rebuttal included Dr. Ginandes’ testimony that: (1) he reported Nelson’s disability to the Social Security Office, and Nelson is now on disability; (2) stated the reasons why he disagreed with Dr. Slomoffs opinion that Nelson was able to work in 1997 and 1998; (3) although Nelson had had prior bouts of depression, she was able to work during the prior bouts because they were not as severe as the emotional distress she suffered due to Defendants’ actions; (4) he reported Nelson’s job restrictions to the University; and (5) his medical opinion is based on a longstanding relationship with Nelson, in contrast to the two-hour interview conducted by Dr. Slomoff. Defendants argued that Nelson should have presented all of the foregoing, evidence in hef case-in-chief because she was given Dr. Slo-moffs IME report prior to trial, no new evidence was introduced by Defendants, and Dr. Ginandes had already testified as to his treatment of Nelson and her history of depression. We agree with Defendants.
The proffered rebuttal testimony of Dr. Ginandes was clearly confirmatory of Nelson’s case and supported her claim for damages. However, unlike her proffered evidence to rebut the Defendants’ reasons for not renewing her contract, Nelson could and should have presented such evidence in her case-in-chief. Indeed, Dr. Ginandes had already testified as to his treatment of Nelson, her depression, and why he believed she was unable to work. With respect to evidence that Nelson was on disability, there is no indication that this evidence was “new” or could not have been introduced earlier, Nelson herself testified that she was on “Social Security disability,” and Nelson should have presented all available evidence in support of damages in her case-in-chief. See Takayama,
B. Jury Instructions
Nelson contends that the trial court erred in instructing the jury regarding the sexual harassment claim by giving Defendants’ requested instruction No. 9 [hereinafter, instruction No. 9], quoted infra, and failing to give her requested supplemental instructions.
“When jury instructions, or the omission thereof, are at issue on appeal, the standard of review is whether, when read and considered as a whole, the instructions given are prejudicially insufficient, erroneous, inconsistent, or misleading.” Hirahara v. Tanaka,
Nelson brought a sexual harassment claim pursuant to HRS § 378-2, which provides:
It shall be an unlawful discriminatory practice ... [b]ecause of ... sex ... [f]or any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment^]
Sexual harassment is a form of sex discrimination prohibited by HRS § 378-2. See Hawai'i Administrative Rules (HAR) § 12-46-109(a) (1998). Generally, there are two different forms of sexual harassment: “quid pro quo” and “hostile environment.” See Steinberg v. Hoshijo,
Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct or visual forms of hаrassment of a sexual nature constitute sexual harassment when ... [t]hat conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.
HAR § 12-46-109(a)(3) (emphases added). The aforementioned definition of HESH is virtually identical to the corresponding federal regulations under Title VII of the Civil Rights Act,
This court has held that a HESH claim exists when an employee can show:
1. that he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct of a sexual nature,
2. that this conduct was unwelcome; and
3.that the conduct had the purpose or effect of either:
a. unreasonably interfering with an individual’s work performance or
b. creating an intimidating, hostile, or offensive work environment.
Steinberg,
In addition to the foregoing elements, a plaintiff is also required to establish that the harassing conduct was “severe or pervasive.” See Steinberg,
[T]he perspective to be used is that of the victim. Thus, if the complainant is a woman, the objective standard is met if a reasonable woman would consider such conduct sufficiently severe оr pervasive to alter the conditions of employment and either [ (a) ] unreasonably interfere with work performance or [ (b) ] create an intimidating, hostile, or offensive work environment.
Id. at 18,
The conduct was sufficiently severe or pervasive to alter the conditions of employment, such as having the purpose or effect of [ (a) ] unreasonably interfering with an individual’s work performance or [ (b) ] by creating an intimidating, hostile or offensive working environment.
Santos v. Niimi, No. 91-001-E-SH at 2 (HCRC Final Decision Jan. 25, 1993) (adopting conclusions of law from Proposed Decision Nov. 4, 1992 at 27) (citing, inter alia, HAR § 12-46-109(a)(3); Ellison, supra).
Nelson contends that instruction No. 9 was misleading and misstated Hawaii law by, inter alia, stating that Nelson had to prove that the conduct had the “purpose or effect” of both “altering the conditions of [Nelson’s] employment and creating an intimidating, hostile, abusive, or offensive working environment.” Nelson essentially argues that, inasmuch as the term “alter the conditions of employment” is similar to alternative (a) (“unreasonably interfering with work performance”), instruction No. 9 improperly suggested that Nelson was required to prove both (a) and (b). Defendants recognize that instruction No. 9 used language different from that used in Hawai'i courts and by the HCRC in describing the required showing, but maintain that the difference is immaterial. Defendants contend that the trial court correctly instructed the jury based on the United States Supreme Court’s decision in Meritor Savings Bank v. Vinson, 477 U.S. 57,
Because the language used in both state and federal case law to describe the required showing is somewhat inconsistent, we believe that it is necessary to review the development of the “severe or pervasive” requirement found in the federal ease law and relied upon by this court in Steinberg.
2. Federal case Law
Generally, federal case law affirms the EEOC regulations defining sexual harassment, which are nearly identical to Hawaii’s regulations, making clear that a claimant must show that the alleged conduct had the “the purpose or effect of [ (a) ] unreasonably interfering with an individual’s work performance or [ (b) ] creating an intimidating, hostile, or offensive working environment” and that (a) and (b) describe two discrete methods of establishing a claim. See, e.g., Ellison,
The federal court in Ellison affirmed the definition of HESH, set forth in the EEOC regulations, as unwelcome sexual conduct that has “the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.”
Although not clearly articulated, the court in Ellison discussed the “severe or pervasive” requirement in the context of balancing the need to evaluate the harasser’s conduct from the viewpoint of the victim, which often requires an analysis of the different perspectives
[i]n order to shield employers from having to accommodate the idiosyncratic concerns of the rare hyper-sensitive employee, we hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.
Id. at 879. The court in Ellison found no inconsistency between the “severe or pervasive” requirement and the EEOC regulations. Id. at 877 (citing Meritor Savings Bank, supra). Indeed, there is no conflict between the regulations and the requirement that a claimant show the conduct was “sufficiently severe or pervasive to alter the conditions of employment” because the phrase “alter the conditions of employment” is merely a general reference to the statutory prohibition against discrimination in the “terms, conditions, or privileges of employment,” see HRS § 378-2, supra, rather than a reference to the “interference with work performance” element in the regulations.
The addition of the “severe or pervasive” requirement to the regulations did nоt change the two discrete methods of establishing a claim described in the regulations: showing that the harasser’s conduct had the purpose or effect of (a) unreasonably interfering with performance or (b) creating an intimidating, hostile or offensive environment. In other words, by stating that conduct must be “sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment[,]” see, e.g., Ellison,
Notwithstanding the above, this court need not resolve any inconsistencies in the federal ease law. Nor would it be wise for us to import such confusing or inconsistent language into our case law. Moreover, although “the federal courts’ interpretation of Title VII is useful in construing Hawaii employment discrimination law[,]” Sam Teague, Ltd. v. Hawai'i Civil Rights Comm’n,
3. Elements of a Claim
Based on the foregoing, we take this opportunity to clarify the elements of a HESH claim set forth in Steinberg and hold that, in order to establish a HESH claim, the claimant must show that: (1) he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of hai'assment of a sexual nature; (2) the conduct was unwelcome; (3) the conduct was severe or pervasive; (4) the conduct had the purpose or effect of either: (a) unreasonably interfering with the claimant’s ivork performance, or (b) creating an intimidating, hostile, or offensive work environment; (5) the claimant actually perceived the conduct as having such purpose or effect; and (6) the claimant’s perception was objectively reasonable to a person of the claimant’s gender in the same position as the claimant.
In addition, with regard to the third element of the claim, we observe that the required showing of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct. For example, a single severe act can be enough to establish a claim, and multiple incidents, each of which may not be severe when considered individually, can be enough to establish a claim when evaluated collectively.
Moreover, we emphasize that, to establish the last two elements of a HESH claim, it is not necessary for the claimant to prove that he or she has suffered tangible physical or psychological harm: the claimant’s perception is the harm as long as the perception is objectively reasonable. See Harris, supra.
Finally, we emphasize that, in evaluating a HESH claim for purposes of dismissal,
4. Application of the Correct Standard
In this case, the court instructed the jury that the plaintiff must show that the employer
engaged in harassing conduct directed toward the plaintiff; that sex ivas a, motivating factor for the harassment; that this conduct was unwelcome and sufficiently severe or pervasive that it had the purpose or effect of altering the conditions of Plaintiff’s employment and creating an intimidating, hostile, abusive, or offensive working environment; the environment created by the conduct would have been perceived as intimidating, hostile, abusive, or offensive by a reasonable person in the same position as Plaintiff; that Plaintiff did in fact perceive the environment as intimidating, hostile, аbusive or offensive; and this environment caused plaintiff injury, damage, loss, or harm.
In order to prevail on a claim of discrimination in the terms and conditions of employment, Plaintiff has the burden of establishing by a preponderance of the evidence that the “terms, conditions or privileges of employment” were altered by creating a work environment that was hostile or abusive. Mere isolated incidents of harassment are not sufficient.
In determining whether an environment is hostile or abusive, you must consider all the circumstances. These may include frequency of the discriminatory conduct; its severity; whether it is physically threateningor humiliating, or a mere offensive utterance; and whether it unreasonably interfered with Plaintiffs work performance.
Instruction No. 9. As previously stated, Nelson contends that the foregoing Instruction No. 9 was confusing and erroneous. For the reasons set forth below, we agree with Nelson.
First, the trial court instructed the jury, without clarification, that the plaintiff must show that “sex was a motivating factor for the harassment.” Instruction No. 9 incorrectly implies that the plaintiff must show that the offender was motivated by a desire to have sex with the victim. See Oncale v. Sundowner Offshore Services, Inc.,
Second, Instruction No. 9 did not accurately reflect the elements of a HESH claim under Hawai'i law. See Steinberg,
Lastly, by instructing the jury that “[m]ere isolated incidents of harassment are not sufficient,” the court incorrectly suggested that a single act, even if it was severe, could not establish a claim. See Ellison,
Based on the foregoing, we hold that the trial court’s jury instruction regarding the elements of a HESH claim, when considered as a whole, was prejudicially erroneous and misleading.
C. JNOV
As previously stated, the jury re-toned a verdict in favor of Nelson on her NIED claim and awarded Nelson $50,000 in damages. Defendants’ moved for JNOV pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 50(b) (1980),
It is well settled that a trial courts rulings on directed verdict or JNOV motions are reviewed de novo. In re Estate of Herbert,
Verdicts based on conflicting evidence will not be set aside where there is substantial evidence to support the jury’s findings. We have defined “substantial evidence” as credible evidence which is of sufficient quality and probative value to enable a [person] of reasonable caution to support a conclusion.
In deciding a motion for directed verdict or JNOV, the evidence and the inferences which may be fairly drawn therefrom must be considered in the light most favorable to the nonmoving party and either motion may be granted only where there can be but one reasonable conclusion as to the proper judgment.
Carr v. Strode,
The trial court’s ruling in this case was based on its interpretation of the exclusive remedy provision of the workers’ compensation law.
When construing a statute, our foremost obligation is to ascertain and give effect to the intention of the legislature, which is to be obtained primarily from the language contained in the statute itself. And we must read statutory language in the context of the entire statute and construe it in a manner consistent with its purpose.
Korsak v. Hawaii Permanente Medical Group,
The workers’ compensation law covers employees who suffer “personal injury either by accident arising out of and in the course of the employment or by disease proximately caused by or resulting from the nature of the employment^]” HRS § 386-3(a) (Supp.2000). Generally, the workers’ compensation scheme serves to bar a civil action for physical and emotional damages resulting from work-related injuries and accidents. See Furukawa v. Honolulu Zoological Soc.,
Exclusiveness of right to compensation; exception. The rights and remedies herein granted to an employee or the employee’s dependents on account of a work injury suffered by the employee shall exclude all other liability of the employer to the employee, the employee’s legal representative, spouse, dependents, next of kin, or anyone else entitled to recover damages from the employer, at common law or otherwise, on account of the injury, except for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto, in ivhich case a civil action may also be brought.
(Emphasis added.) Defendants contend that the foregoing exception applies only to claims based on intentional conduct and that the legislature did not intend to allow plaintiffs to pursue claims based on negligence. The plain language of the statute contains no such distinction or limitation. However, where there is doubt, this court may look to the legislative history of a statute to aid in its interpretation. See Gray,
HRS § 386-5 was amended in 1992 to include an exception to the exclusive
The legislative history further reveals that lawmakers considered and rejected language limiting the emotional distress claims covered by the exception to intentional infliction of emotional distress. The initial version of House Bill No. 2131, introduced in 1991, actually limited the exception to claims based on intentional conduct, proposing the addition of the following subsection to HRS § 386-5:
Nothing in this chapter shall preclude any person from maintaining a cause of action for intentional infliction of emotional distress or intentional invasion of privacy.
1991 H.B. 2131 (emphases added); see also Hse. Stand. Comm. Rep. No. 766, in 1991 House Journal, at 1107. The bill went through several amendments before reaching its final form. See H.B. 2131, S.D. 1; H.B.
Inasmuch as (1) the plain language of the exception in HRS § 386-5 applies to claims for “infliction of emotional distress” without limitation, (2) the exception was a remedial provision that must be construed liberally, and (3) the legislative history does not support limiting the exception to intentional infliction of emotional distress claims, we conclude that the exclusive remedy provision of the workers’ compensation law does nоt bar claims for NIED related to sexual harassment.
Here, Nelson’s claim for NIED was premised on the same conduct as—and, thus, “related to”—her sexual harassment claim. By agreement of the parties, the court instructed the jury as to the elements of NIED as follows:
Plaintiff may recover damages for negligent infliction of emotional distress only if she proves that a reasonably prudent person in the same situation and possessing the same knowledge as Defendants would have foreseen that someone in Plaintiffs position would have suffered serious mental distress because of their actions. “Serious mental distress” is found where a reasonable person, normally constituted, would be unable to adequately cope with the mental stress caused by the circumstances of the ease. If you find by a preponderance of the evidence that a reasonable person, normally constituted, would have been unable to adequately cope with the mental stress caused by the conduct of Defendants, and that a reasonable person in Defendants’ position should have foreseen this, then you may award Plaintiff damages for negligent infliction of emotional distress.
Defendants’ Requested Instruction No. 19. (Footnote omitted.) Based on the evidence presented at trial, see discussion supra, there was substantial evidence, when viewed in the light most favorable to Nelson, to support a finding that she suffered serious mental distress as a result of Defendants’ conduct and that such distress was foreseeable. Thus, there was substantial evidence to support the jury’s verdict in favor of Nelson on her claim for negligent infliction of emotional distress. See Carr,
III. CONCLUSION
Based on the foregoing, we hold that (1) the trial court abused its discretion in excluding Nelson’s proffered rebuttal evidence of her publications, and the exclusion of such evidence resulted in substantial prejudice to Nelson’s claims for employment discrimination and negligent and intentional infliction of emotional distress; (2) the trial court's jury instruction with respect to sexual harassment (instruction No. 9) was prejudicially erroneous and misleading; and (3) the trial court erred in granting Defendants’ motion for judgment notwithstanding the verdict. Therefore, we vacate the judgment of the circuit court and remand this case for a new trial with respect to Nelson’s claims of employment discrimination and negligent and intentional infliction of emotional distress only.
Notes
. Nelson claimed violation of her freedom of speech under article I, section 4 of the Hawai'i Constitution, violation of the equal protection and due process clauses of the Hawai'i Constitution, and denial of her right to equality on account of sex under article I, section 3 of the Hawai'i Constitution.
. On appeal, plaintiff has not raised as a point of error the trial court’s ruling on the motion in limine.
. For example, Nelson slated that she got into an argument with Dr. Ho because he had asked her to lie about student teaching assignments. She also objected to giving male professors, who were not teaching as many hours as they should, two credits for student teaching, while giving her only one credit for "doing all the student supervision.” Dr. Ho denied ever asking Nelson to lie.
. The memorandum summarized Nelson’s instructional, research, scholarly, and service activities, as well as her professional and personal qualities. Negative comments focused on her lack of publications and her "personal qualities.’’ These comments included statements lhat "Nelson has chosen to isolate herself from her colleagues” and has "little direct colleague collaboration with any other department member regarding interdepartmental business or research.”
. There was some evidence, however, regarding the nonrenewal of her contract in 1996 inasmuch as Dr. Prater did testify, inter alia, that she recommended Nelson for renewal in 1996.
. Nelson also argues that, based on the burden-shifting framework for analyzing the development of proof in employment discrimination cases set forth in Furukawa v. Honolulu Zoological Society,
First, the plaintiff must demonstrate by a preponderance of the evidence that there was discrimination on the basis of a protected characteristic. Establishment of the prima fa-cie case in effect creates a presumption that the employer unlawfully discriminated against the employee. The burden of production then shifts to the defendant to proffer a legitimate, nondiscriminatory explanation of the adverse employment action. Finally, if a defendant successfully rebuts the presumption, the burden returns to the plaintiff, to show that the defendant's explanation was pretextual. The burden of persuasion remains at all times on the plaintiff.
Furukawa,
Although the trial court’s ruling on the motion in limine was not raised as a separate point of error on appeal, the admissibility of evidence of the 1996 contract renewal process is related to other issues raised on appeal, and we believe that some guidance on remand is appropriate. In support of the motion to exclude evidence of the 1996 contract renewal process, Defendants argued that such evidence was not admissible in part because Nelson failed to file a charge of discrimination with the HCRC based on the non-renewal, which precluded the court from considering the nonrenewal as part of the discrimina-lion claim. However, we note that HRS § 378-3(10) (Supp. 1994), see infra note 16 and accompanying text, excepts victims of sexual harassment from having to file discrimination complaints with the HCRC prior to filing civil actions for sexual harassment or infliction of emotional distress related thereto.
. The court rejected Nelson's proposed supplemental instructions Nos. 9, 12, and 13, which defined the elements of Nelson's sexual harassment claim against the University, Dr. Buxton, and Dr. Ho, respectively, as well as instructions Nos. 46, 47, and 48, which addressed the meaning of the term "motivating factor."
. See Civil Rights Act of 1964, § 701 et seq., as amended, 42 U.S.C. § 2000e et seq. (1994).
. The court emphasized that, "in evaluating the severity and pervasiveness of sexual harassment, we should focus on the perspective of the victim. If we only examined whether a reasonable person would engage in allegedly harassing conduct, we would run the risk of reinforcing the prevailing level of discrimination.” Ellison,
[a] complete understanding of the victim’s view requires, among other things, an analysis of the different perspectives of men and women. Conduct that many men consider unobjectionable may offend many women.
Id. at 878-79 (citations and footnotes omitted).
. We note that a number of federal decisions following Ellison have defined the elements of a HESH claim in several different ways, using specific language from the regulations and Ellison interchangeably and somewhat inconsistently. See, e.g., Fenton v. HiSAN,
. In Harris, the United States Supreme Court stated that
[a] discriminatorily abusive work environment, even one that does not seriously affect employees’ psychological well-being, can and often will detract from employees’ job performance, discourage employees from remaining on the job, or keep them from advancing in their careers. Moreover, even without regard to these tangible effects, the very fact that the discriminatory conduct was so severe or pervasive that it created a work environment abusive to employees because of their ... gender ... offends Title VII’s broad rule of workplace equality.
The Court in Harris went on to state that
|c]onduct that is not severe or pervasive enough to create an objectively hostile or abusive work environment—an environment that a reasonable person would find hostile or abusive—is beyond Title VII's purview. Likewise, if the victim does not subjectively perceive the environment to be abusive, the conduct has not actually altered the conditions of the victim’s employment, and there is no Title VII violation.
. HAR § 12-46-109(b) provides as follows:
In determining whether alleged conduct constitutes sexual harassment, the commission will look al the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
. Justice Ramil, in his dissent, refers to the majority's approach as the “separate element/alternative means” approach and suggests that it is not necessary to prove the fourth element identified above in order to establish a HESH claim. Considering the fourth element, Justice Ramil concludes that neither (a), i.e., unreasonably interfering with an individual's work performance, nor (b), i.e., creating an intimidating, hostile, or offensive work environment, must be proven, but that (a) and (b) are merely "factors” to be considered in determining whether, based on the totality of the circumstances, the conduct was "sufficiently ‘severe or pervasive' to qualify' as a HESH claim.” Dissent at 395-96,
Correctly viewed, our approach is consistent with the "totality of the circumstances” approach adopted by the HCRC. See supra note 12. In other words, courts must consider the totality of the circumstances when determining whether a claimant has established (a) or (b), as well as the other elements of a HESH claim.
. We note that HRCP Rule 50 was recently amended and no longer refers to motions for directed verdict or for JNOV. HRCP Rule 50 (2000). The new rule, consistent with the Federal Rules of Civil Procedure (FRCP) Rule 50 (as amended in 1991), rеfers to motions for "judgment as a matter of law,” and motions made after trial are referred to as "renewed motions for judgment as a matter of law.” "Where we have patterned a rule of procedure after an equivalent rule within the FRCP, interpretations of the rule by the federal courts are deemed to be highly persuasive in the reasoning of this court.” Gold v. Harrison,
. In addition, Act 275 amended HRS § 386-8.5, regarding limits on third party liability, to extend the protection from liability afforded to labor organizations to cover liability for failing lo negotiate or enforce a sexual harassment or sexual assault provision. See Haw. Sess. L. Act 275, § 3 at 722; Conf. Comm. Rep. No. 21, in 1992 House Journal, at 799.
. HRS § 378-4 provides that the HCRC "shall have jurisdiction over the subject of discriminatory practices made unlawful by this part.” HRS § 378-3(10), entitled “Exceptions," provides that nothing in this part shall be deemed to ”[p]reclude any employee from bringing a civil action for sexual harassment or sexual assault and infliction of emotional distress or invasion of privacy related thereto; provided that notwithstanding section 368-12 [regarding notice of right to sue issued by HCRC], the commission shall issue a right to sue on a complaint filed with the commission if it determines that a civil action alleging similar facts has been filed in circuit court.”
Dissenting Opinion
Dissenting Opinion By
I write to state my position regarding the elements of a sexual harassment claim. Because I believe the trial court correctly stated the elements of a sexual harassment claim, I would hold that the jury instruction—consistent with the “totality of the circumstances” analysis—was a proper statement of the law. Accordingly, I respectfully dissent.
I.
The majority proposes, in my view, an additional separate element to a hostile environment sexual harassment (HESH) claim by requiring a plaintiff to show that the alleged sexual conduct either (a) unreasonably
II.
The “totality of the circumstances” analysis follows the administrative rules and both Hawaii and federal case law. First, the Hawaii Civil Rights Commission (HCRC), after outlining the required showing for sexual harassment, which admittedly appears to support the “alternative means” analysis (“[t]hat conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment”), immediately clarifies in the following subsection that the conduct must be еxamined in the context of the “record as a whole” and the “totality of the circumstances”:
In determining whether alleged conduct constitutes sexual harassment, the commission will look at the record as a whole and at the totality of the circumstances, such as the nature of the sexual advances and the context in which the alleged incidents occurred. The determination of the legality of a particular action will be made from the facts, on a case by case basis.
Hawaii Administrative Rules (HAR) § 12-46—109(b). Such language is identical to its federal regulatory counterpart as promulgated by the Equal Employment Opportunity Commission (EEOC). See 29 C.F.R. § 1604.11(b). To comply with our well-established rule of statutory construction—that where an administrative agency is charged with overseeing and implementing a particular statutory scheme, courts generally accord persuasive weight to such administrative construction, see Sam Teague, Ltd. v. Hawai'i Civil Rights Comm’n,
Second, in Steinberg v. Hoshijo,
Moreover, Steinberg relies on federal case law, specifically Ellison v. Brady,
The majority here found this additional and separate element to a HESH claim in Steinberg:
3. that the conduct had the purpose or effect of either:
a. unreasonably interfering with an individual’s work 'performance or
b. creating an intimidating, hostile, or offensive work environment.
Majority at 387,
[W]e hold that a female plaintiff states a prima facie case of hostile environment sexual harassment when she alleges conduct which a reasonable woman would consider sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.
Ellison,
Indeed, it appears odd that this court would diverge from federal case law without explanation, especially given that we have long declared that federal case law is highly instructive in the area of employment discrimination. Only recently, this court noted that “Hawaii employment discrimination law was enacted to provide victims of employment discrimination the same remedies, under state law, as those provided by Title VII of the Federal Civil Rights Act of 1964.” Sam Teague, Ltd.,
Relatedly, given our traditional consideration of federal case law, it seems unusual to trailblaze a new path—especially one contrary to federal law—with no more than one mis-cited citation to a federal case. To worsen matters, the majority discounts the vast body of established federal case law as “confusing.” Majоrity at 391,
Thud, federal case law not only rejects the “separate element/alternative means” approach, but also supports the “totality of the circumstances” approach. In Ellison, which
We do not think that these standards are inconsistent. The Supreme Court used the words “abusive” and “hostile” synonymously in Meritor. The Meritor Court also approved of and paid detailed attention to the EEOC’s guidelines, and it implicitly adopted the EEOC’s position that sexual harassment which unreasonably interferes with work performance violates Title VII. Similarly, although we only expressly incorporated [the language from Meritor ], that part also encompasses the EEOC’s [guideline language]. Conduct which unreasonably interferes with work performance can alter a, condition of employment and create an abusive working environment.
Most recently in Faragher v. City of Boca Raton,
To reiterate “what was plain from [its] previous decisions,” the United States Supreme Court in its most recent decision again stated that
[workplace conduct is not measured in isolation; instead, “whether an environment is sufficiently hostile or abusive” must be judged “by ‘looking at all the circumstances,’ including the ‘frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee’s work performance.’ ”
Clark County School Dist. v. Breeden,
Similarly, the Ninth Circuit in Ray v. Henderson,
Here, after [Plaintiff] made his complaint about the treatment of women at the Wil-lits Post Office, he was targeted for verbal abuse related to those complaints for a period lasting over one and [a] half years. His supervisors regularly yelled at him diming staff meetings; they called him a “liar,” a “troublemaker,” and a “rabble rouser,” and told him to “shut up.” Additionally, [Plaintiff] was subjected to a number of pranks, and wаs falsely accused of misconduct.
Not only did his supervisors make it harder for [Plaintiff] to complete his own tasks, they made [Plaintiff] an object lesson about the perils of complaining about sexual harassment in the workplace. [Plaintiffs supervisors] made it clear to the other staff that disadvantageous changes in management style were due to [Plaintiffs] complaints.... [Plaintiffs supervisors] also fostered animus in other employees whose working conditions were affected. Other employees began to distance themselves from [Plaintiff], and some stopped talking to him. In November of 1995, the difficulties at work rose to such a level that [Plaintiff] took stress leave from his job.
We conclude that [Plaintiff] has presented evidence that is, for purposes of summary judgment, sufficient to raise a genuine, issue of facts as to whether he was subjected to a hostile work environment.
Id. at 1245-46. Thus, the Ninth Circuit assessed the totality of the circumstances by analyzing both factor (a) (“his supervisors ma[de] it harder for [plaintiff] to complete his own tasks”) and factor (b) (verbal abuse, pranks, making plaintiff an “object lesson”). Moreover, such analysis indicates that both factors are often difficult to separate and evaluate in isolation.
Such dictates by Hawai'i and federal ease law, in addition to the established practice of the HCRC, require the “totality of the circumstances” approach. Even the majority concedes as much. In conclusion, after justifying its proposed “separate element/alternative means” approach, the majority surprisingly embraces the “totality of the circumstances” approach. Majority at 390-91,
III.
Indeed, the overly mechanistic and formulaic approach adopted by the majority would exclude potentially meritorious plaintiffs. First, suppose a plaintiff fell just short of establishing (a) (alleged conduct “unreasonably interfered with work performance”). In addition, this same plaintiff fell just short of establishing (b) (alleged conduct “created an
Second, as the majority explains, the conduct must be evaluated both from the subjective standpoint of the claimant and from an objective standpoint of a reasonable person of the claimant’s gender in the claimant’s position. Majority at 390,
Subjective Standpoint (“plaintiff’) Objective Standpoint (“reasonable woman”)
(a) Conduct “unreasonably interfering with an individual’s work performance” No Yes
(b) Conduct “creating an intimidating, hostile, or offensive work environment” Yes No
Under the “separate element/alternative means” approach, such plaintiff would fail to establish a prima facie case and would be categorically barred from bringing suit against her employer. In contrast, the “totality of the circumstances” approach would likely allow such plaintiff to have her day in court. The majority argues that “the claimant’s perception [must be] objectively reasonable.” Majority at 390,
A critical examination of my hypothetical only confirms my point that under the majority’s separate element/alternative means method, such a claimant would fail and abandoned by the discrimination statute that is supposed to be “remedial and humanitarian” and “generously construed ... to afford claimant hearings on the merits and to prevent the loss of valuable rights.” Puchert v. Agsalud,
In sum, the majority’s “separate element/alternative means” approach directly contradicts the “remedial and humanitarian nature” of the employment discrimination statutes, which should be “generously construed ... to afford claimants hearings on the merits and to prevent the loss of valuable rights.” Id.
Additionally, the “totality of the circumstances” approach is more flexible and better captures the actual analysis undertaken by courts. Not every observation and evaluation by the court can always be classified simply as either (a) or (b), as required by the “separate element/alternative means” method. The “totality of the circumstances” approach, in contrast, acknowledges the reality of the often complex balancing and weighing
IV.
In this case, the trial court’s jury instruction properly stated that sexual harassment was conduct “sufficiently severe or pervasive that it had the purpose or effect of altering the conditions of Plaintiffs employment and creating an intimidating, hostile, abusive, or offensive working environment.” Moreover, it correctly added that, “in determining whether an environment is hostile or abusive, you must consider all of the circumstances [, including] whether [the conduct] unreasonably interferes with Plaintiffs work performance.” (Emphasis added.) Accordingly, I would hold that such instruction—consistent with the “totality of the circumstances” analysis—was a proper statement of the law.
. In fact, an analysis of the phrase "unreasonably interferes with work performance” reveals that it is properly characterized as a factor in deciding whether conduct "alters the conditions of employment and creates an abusive working environment." To determine what is "unreasonable,” the court must examine Ihe interference in conjunction with the severity and frequency of the conduct—the same examination in deciding whether the conduct "alters the conditions of employment and creates an abusive working environment.” See Faragher v. City of Boca Raton,
. Of course, one factor may be so well-established that it would demonstrate, in examining the totality of the circumstances, that the conduct was sufficiently "severe or pervasive” to qualify as a HESH claim.