Shimose v. Hawaii Health Systems Corporation dba Hilo Medical Center. ICA s.d.o., filed 11/20/2013 [ada], 131 Haw. 59. Petition for Writ of Certiorari, filed 01/21/2014.

*** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Electronically Filed
Supreme Court
SCWC-12-0000422
16-JAN-2015
09:33 AM

IN THE SUPREME COURT OF THE STATE OF HAWAI#I

---o0o---

ZAK K. SHIMOSE,
Petitioner/Plaintiff-Appellant,

vs.

HAWAI#I HEALTH SYSTEMS CORPORATION dba HILO MEDICAL CENTER,
Respondent/Defendant-Appellee.

SCWC-12-0000422

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000422; CIV. NO. 09-1-383)

JANUARY 16, 2015

RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ.,
AND CIRCUIT JUDGE ALM, IN PLACE OF ACOBA, J., RECUSED

OPINION OF THE COURT BY NAKAYAMA, J.

Subject to some restrictions, Hawai#i Revised Statutes

(HRS) § 378-2.5 (Supp. 2007) allows employers to deny employment

based on an individual’s conviction record “provided that the

conviction record bears a rational relationship to the duties and

responsibilities of the position.” In 2007, Petitioner Zak K.

Shimose (Shimose) applied for employment as a radiological

technician (radtech) at Hawai#i Health Systems Corporation (HHSC)
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

dba Hilo Medical Center (HMC) (collectively HHSC/HMC). HHSC/HMC

rejected Shimose’s application based solely on his prior

conviction for possession with intent to distribute crystal

methamphetamine. The primary issue in this case is whether, as a

matter of law, HHSC/HMC established the existence of a rational

relationship between the radtech position and Shimose’s prior

drug conviction that would entitle it to summary judgment. We

hold that it did not.

I. BACKGROUND

Shimose was convicted of possession with intent to

distribute crystal methamphetamine on August 28, 2001, and

sentenced to 37 months in prison. While in prison, Shimose

completed a bachelor’s degree in philosophy at the University of

Hawai#i, Hilo, and began investigating the radtech associates

degree program at Kapiolani Community College (KCC). Shimose was

released on March 7, 2003.

Shimose matriculated into KCC’s radtech program in

August of 2005. As part of the program, Shimose was assigned to

HMC to complete a clinical rotation at HMC’s imaging department.

Shortly after the rotation began, HHSC/HMC initiated a

suitability investigation into Shimose’s background. HHSC/HMC

concluded that Shimose’s felony drug conviction disqualified him

from participating in a clinical rotation at an HHSC facility,

and removed him from the program. Shimose completed his clinical

2
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

requirements at another medical facility and graduated from the

radtech program in the spring of 2007.

Shimose applied for a vacant radtech position at HMC on

June 15, 2007, and submitted a second application on July 30,

2007. In August of 2007, HMC verbally indicated that Shimose

would not be hired for the radtech position. Shimose submitted a

request for administrative review with HHSC/HMC on November 1,

2007. On September 16, 2008, HHSC/HMC sent Shimose a letter

indicating that he was disqualified from consideration for the

radtech position because of his conviction for possession with

intent to distribute a controlled substance.

Shimose filed a complaint with the Hawai#i Civil Rights

Commission (Commission) on September 6, 2008, alleging a

violation of HRS § 378-2 (Supp. 2007).1 The Commission

determined that “the medical center was lawfully entitled to

consider [Shimose’s] 2001 felony drug conviction in accordance

with HRS § 378-2.5(1), and the conviction disqualified [him] from

1
HRS § 378-2 (Supp. 2007) provided then as it does now, in relevant
part:

(a) It shall be an unlawful discriminatory practice:

(1) Because of . . . arrest and court record . . . :

(A) For 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.

3
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

the position.”2 The Commission issued a notice of dismissal and

right to sue letter on August 6, 2009. On October 25, 2009,

Shimose filed suit in the circuit court alleging violations of

HRS § 378-2 and article I, section 5 of the Hawai#i

Constitution.3

The parties filed cross-motions for summary judgment in

December of 2011. In its cross-motion for summary judgment,

HHSC/HMC asserted that the following facts were undisputed: (1)

Radtechs treat vulnerable patient groups including children,

geriatrics, and disabled patients; (2) many patients receiving

treatment are in compromised physical and mental states and/or

are receiving pain medication; (3) radtechs are often alone and

unsupervised when imaging patients; (4) radtechs have access to

patient charts that disclose what medications a patient is

receiving; (5) radtechs have access to “an array of drugs that

are not readily available to the public, as well as related

supplies such as syringes and needles.”4

2
HRS § 378-2.5 (Supp. 2007) provided then as it does now, in
relevant part:

(a) Subject to subsection (b), an employer may inquire about
and consider an individual’s criminal conviction record
concerning hiring, termination, or the terms, conditions, or
privileges of employment; provided that the conviction
record bears a rational relationship to the duties and
responsibilities of the position.
3
The Honorable Glenn S. Hara presided.

4 These facts were supported by the declaration of HMC’s facility
imaging director, Reynold Cabarloc.

4
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

With respect to pharmaceutical substances and supplies,

HHSC/HMC alleged that radtechs have access to crash carts, drug

reaction boxes, and anesthesia carts, and it attached exhibits

that listed the contents of crash carts and drug reaction boxes.5

HHSC/HMC also asserted that radtechs have access to virtually all

areas of the hospital, and that many of those areas contain

stored quantities of drugs and related supplies.

Based on these factual assertions, HHSC/HMC argued that

it was entitled to summary judgment because a rational

relationship existed between Shimose’s conviction and the duties

of a radtech. First, although HHSC/HMC did not specify what

controlled substances a radtech might access, it argued that

individuals with a felony drug conviction are unfit to handle

controlled substances. Further, HHSC/HMC argued that individuals

with a felony drug conviction are unfit to handle the non-

controlled pharmaceuticals that were listed on the exhibits

attached to the declaration of Reynold Cabarloc, as well as

syringes and needles. Second, HHSC/HMC argued that individuals

with a felony drug conviction are unfit to interact with patients

who are currently taking medicine or are otherwise vulnerable.

HHSC/HMC stated: “[T]here is an opportunity and risk that a

5 The following substances were listed: (1) sterile water, (2)
benadryl, (3) lidocaine, (4) zantac, (5) atropine, (6) aromatic ammonia
inhalant, (7) albuterol inhaler, (8) amiodarone, (9) calcium chloride, (10)
dextrose, (11) dopamine, (12) dopram, (13) epinephrine, (14) phenergan, (15)
sodium bicarbonate, (16) solumedrol, (17) vasopressin, (18) zofran, and (19)
0.9% Bact NS.

5
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

vulnerable patient, who may be taking prescribed drugs and may be

in significant pain, would have their medication taken from them

and/or would be sold an illegal drug.”

Shimose disputed several of the material facts that

HHSC/HMC had alleged. First, Shimose disputed that radtechs have

access to controlled substances and/or areas of the hospital

where controlled substances are kept. Although Shimose admitted

that radtechs have access to crash carts and drug reaction boxes,

he asserted that neither crash carts nor drug reaction boxes

contain controlled substances. Shimose attached the DEA’s list

of federally controlled substances to his motion and noted that

none of the substances contained in crash carts or drug reaction

boxes appeared on that list. See 21 U.S.C. § 812 (2012); 21

C.F.R. §§ 1308.11-1308.15 (2014).6 Shimose asserted that

anesthesia carts do not contain controlled substances and that

they are locked and controlled by an anesthesiologist at all

times. Shimose also asserted that all controlled substances at

HMC are strictly secured in the hospital pharmacy and that

radtechs do not have access to the pharmacy. Finally, Shimose

contended that even “non-addictive drugs which are not restricted

. . . are still strictly locked and supervised.”

6 See also Controlled Substance Schedules, U.S. Dep’t Just., Drug
Enforcement Admin., Off. Diversion Control, http://www.deadiversion.usdoj.gov/
schedules/#list

6
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Second, Shimose asserted that radtechs do not have

greater access to vulnerable patient groups than visitors to the

hospital, and that the level of contact with such groups is equal

to that of any other profession. Specifically, Shimose asserted

that radtechs are not often alone with vulnerable patients

because those patients usually require the assistance of one or

more additional hospital care workers. Shimose also asserted

that contact with in-patients does not provide access to

controlled substances because those substances are administered

exclusively from authorized sources and are never left unattended

in an in-patient’s room. Finally, Shimose asserted that radtechs

never administer controlled substances to patients, and that

their duties are limited to imaging patients and assisting

radiologists with special procedures.7

Based on these factual assertions, Shimose argued that

the asserted relationship between the duties of a radtech and a

felony drug conviction was irrationally based on biases and

prejudices. Shimose argued that HHSC/HMC failed to establish

that radtechs have access to controlled substances, and that

there was no rational relationship between a felony drug

conviction and access to non-controlled substances or supplies.

7
Shimose attached HMC’s job announcement for the radtech position
and HHSC’s six page radtech job description to his motion for summary
judgment. These documents indicate that the daily responsibilities of a
radtech include diagnostic imaging and related tasks, but do not include the
administration of controlled substances.

7
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Shimose also argued that the asserted connection between his

conviction and the risk that vulnerable patients would have their

medication taken from them and/or be sold an illegal drug was

tenuous and unduly speculative. At a minimum, Shimose argued

that issues of material fact surrounding HHSC/HMC’s asserted

rational relationships would preclude summary judgment in its

favor.

On March 28, 2012, the circuit court granted HHSC/HMC’s

motion for summary judgment and denied Shimose’s cross-motion for

summary judgment. The Intermediate Court of Appeals (ICA)

affirmed.

II. STANDARD OF REVIEW

We review a circuit court’s decision to grant a motion

for summary judgment de novo under the standard that the circuit

court should have applied. Fujimoto v. Au, 95 Hawai#i 116, 136,

19 P.3d 699, 719 (2001) (citation omitted). “Summary judgment is

appropriate if the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any, show that there is no genuine issue of

material fact and the moving party is entitled to judgment as a

matter of law.” U.S. Bank Nat’l Ass’n v. Castro, 131 Hawai#i 28,

41, 313 P.3d 717, 730 (2013) (internal quotations and citations

omitted). The evidence must be viewed in the light most

8
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

favorable to the party opposing summary judgment. See Ralston v.

Yim, 129 Hawai#i 46, 55-56, 292 P.3d 1276, 1285-86 (2013).

III. DISCUSSION

HRS § 378-2 states: “It shall be an unlawful

discriminatory practice . . . [f]or any employer to refuse to

hire or employ . . . any individual . . . [b]ecause of . . .

arrest and court record[.]” However, HRS § 378-2.5 allows an

employer to disqualify a job applicant based on his or her

history of conviction, “provided that the conviction record bears

a rational relationship to the duties and responsibilities of the

position.” The issue in this case is whether, as a matter of

law, HHSC/HMC established a rational relationship between

Shimose’s conviction for possession with intent to distribute

crystal methamphetamine and the duties and responsibilities of a

radiological technician at HMC. We hold that it did not.

A. The Plain Language of HRS § 378-2.5

Our foremost obligation in construing a statute is to

“give effect to the intention of the legislature, which is to be

obtained primarily from the language contained in the statute

itself.” Hanabusa v. Lingle, 119 Hawai#i 341, 349, 198 P.3d 604,

612 (2008) (internal quotations and citations omitted). In so

doing, we are bound to give effect to all parts of a statute, “no

clause, sentence, or word shall be construed as superfluous,

9
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

void, or insignificant.” State v. Kaakimaka, 84 Hawai#i 280,

289-90, 933 P.2d 617, 626-27 (1997).

Several guidelines define the statutory phrase

“rational relationship to the duties and responsibilities of the

position,” HRS § 378-2.5(a), which we previously interpreted in

Wright v. Home Depot U.S.A., Inc., 111 Hawai#i 401, 142 P.3d 265

(2006). As stated in Wright, the rational relationship standard

is not coextensive with the ultra-deferential rational basis test

that is used in some equal protection cases. See Wright, 111

Hawai#i at 412 n.9, 142 P.3d at 276 n.9. Accordingly, we decline

to adopt a standard under which virtually any conceivable state

of facts could support an adverse employment decision. Rather,

“the standard of rationality . . . must find some footing in the

realities of the subject.” Heller v. Doe, 509 U.S. 312, 321

(1993). As such, an adverse employment action cannot be

justified by an asserted relationship that is so remote or

“attenuated as to render the distinction arbitrary or

irrational.” Fitzgerald v. Racing Ass’n of Cent. Iowa, 539 U.S.

103, 106 (2003) (internal quotations and citation omitted).

Negative attitudes toward politically unpopular ex-offenders do

not, standing alone, justify adverse employment decisions. Cf.

City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432,

446-47 (1985) (stating that a bare desire to harm a politically

10
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

unpopular group is not a legitimate state interest); U.S. Dep’t

of Agric. v. Moreno, 413 U.S. 528 (1973) (same).8

B. The Legislative History of HRS § 378-2.5

These guidelines are supported by the legislative

history of HRS §§ 378-2 and 378-2.5, which reveals that the

statutory scheme was tailored to balance competing state

interests. See Life of the Land, Inc. v. City Council of City &

Cnty. of Honolulu, 61 Haw. 390, 447, 606 P.2d 866, 899 (1980)

(“Courts may take legislative history into consideration in

construing a statute.”). Here, the legislative history of HRS §

378-2.5 reveals that the legislature chose language broad enough

to allow reasonable consideration of a record of conviction, but

narrow enough to place a meaningful restraint on unlawful

discrimination. See S. Stand. Comm. Rep. No. 3282, in 1998

Senate Journal at 1331 (“The intent of this bill is to provide a

balanced disclosure taking into account the interest of the

employee and the employer.”).

The fundamental restraint on discrimination against

persons with conviction records embodied in HRS § 378-2 was

passed into law in 1974 to reflect the legislature’s recognition

“that persons who have been in trouble are not inherently and

permanently bad and that opportunities afforded other citizens

8 See also Elena Saxonhouse, Unequal Protection: Comparing Former
Felons’ Challenges to Disenfranchisement and Employment Discrimination, 56
Stan. L. Rev. 1597 (2004).

11
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

should be made available to them.” S. Stand. Comm. Rep. No. 862-

74, in 1974 Senate Journal at 1079. The purpose of HRS § 378-2

“is to encourage the rehabilitation of convicted persons by

eliminating disqualification from employment . . . solely by

reason of a prior conviction of a crime.” Id. (emphasis in

original). Convicted persons who are rehabilitated through

meaningful employment show decreased levels of recidivism.9

In 1998, a bill introduced in the House proposed a

dramatic policy reversal by deleting the phrase “court record”

from HRS § 378-2. This would have allowed employers to consider

criminal convictions without restraint. The House Standing

Committee Report accompanying the bill stated:

The purpose of this bill is to repeal the prohibition
against employment discrimination based upon arrest and
court record.

. . . .

Your Committee finds that under current law, it is an
unlawful discriminatory practice in connection with
employment to discriminate on the basis of an individual’s
arrest and court record. Your Committee believes that the
rehabilitation of individuals who may have run afoul of the
law is essential to society and that gainful employment is
necessary to the rehabilitative process. Your Committee is
concerned, however, that broad prohibitions restricting an
employer’s right to question a person regarding criminal
convictions may compromise the safety of customers and
employees.

Upon careful consideration, your Committee has amended this
measure by:

. . . .

9
See, e.g., Matthew Makarios et al., Examining the Predictors of
Recidivism Among Men and Women Released From Prison in Ohio, 37 Crim. Just. &
Behav. 1377 (2010).

12
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

(3) Limiting the prohibition against unlawful discriminatory
practices in employment because of “arrest and court record”
under Section 378-2(1), HRS, to “arrest records”;

(4) Adding a new definition of “Arrest record” to Section
378-1, HRS, which definition excludes records of criminal
conviction, thereby effectively providing an exception to
the prohibition against unlawful discriminatory practices in
employment on the basis of an applicant’s or current
employee’s record of criminal conviction[.]”

H. Stand. Comm. Rep. No. 673-98, in 1998 House Journal at 1300-

01.

The House’s proposal was opposed by the Senate

Standing Committee, which issued a report that stated:

Your Committee is concerned that this measure will diminish
the employment opportunities for individuals who have a
conviction record. Your Committee believes that it is in
our State’s best interest to see to it that these
individuals not be discriminated against in their search for
employment. Should these individuals be unable to secure
employment and turn to public assistance or return to a life
of crime, the costs will be borne by the public.

Your Committee has amended this bill by:

. . . .

(2) Inserting a provision to allow employers to inquire
about conviction records, provided that it is done so only
after the employer makes a conditional offer of employment
and that the conviction record bears a substantial
relationship to the employment duties of the position that
has been offered;

(3) Inserting a provision that limits the inquiry to the
past five years;

(4) Inserting a requirement that the employer shall make an
individualized assessment of the circumstances associated
with the record of conviction and any evidence of
rehabilitation to determine if the person is suitable for
employment[.]

S. Stand. Comm. Rep. No. 2959, in 1998 Senate Journal at 1207-

08.

13
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Negotiations came down to the final day, and

“agreement on th[e] measure was reached approximately one hour

before the deadline.” The resulting compromise, enacted as HRS

§ 378-2.5, allows consideration of a criminal conviction that

bears a “rational relationship to the duties and

responsibilities of the position.” The statutory language

adopted did not embody the House’s proposal to allow unfettered

consideration of criminal convictions. The legislature also

rejected the Senate’s proposal for a “substantial relationship”

standard.10 An overly broad reading of HRS § 378-2.5 would

eviscerate the protections afforded to persons with conviction

records by HRS §§ 378-2 and 2.5, and render the statutory phrase

“duties and responsibilities” meaningless. That was not the

bicameral intent of the enacting legislature.11

10
HRS § 378-2.5 also adopted the Senate’s provision that requires
employers to make a conditional job offer before inquiring into conviction
history, but rejected the Senate’s proposal that would have required employers
to make an individualized assessment of the circumstances associated with an
applicant’s conviction history.

Another compromise embodied in HRS § 378-2.5 is the ten-year limitation
on an employer’s ability to consider convictions, which is five years longer
than the limitation period that the Senate proposed, but decidedly shorter
than the unlimited consideration proposed by the House. The limitation
excludes periods of incarceration. See HRS § 378-2.5(c).
11
We decline to adopt an unduly broad reading of “rational
relationship” based on the remarks of individual House members that would
undermine the compromise position reached by the legislature in full. See
Wright, 111 Hawai#i at 411 n.8, 142 P.3d at 275 n.8 (“Stray comments by
individual legislators, not otherwise supported by statutory language or
committee reports, cannot be attributed to the full body that voted for the
bill.”) (internal quotations and citation omitted); see also Dines v. Pac.
Ins. Co., Ltd., 78 Hawai#i 325, 332, 893 P.2d 176, 183 (1995) (“Statements by
legislators . . . need not reflect the purpose which a majority of the
legislators believed is carried out by [a] statute.”) (internal quotations and
(continued...)

14
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

C. HHSC/HMC Failed to Establish a Rational Relationship
Between Shimose’s Conviction and the Duties and
Responsibilities of a Radiological Technician

When presented with cross-motions for summary judgment

in the context of HRS §§ 378-2 and 378-2.5, the court’s task is

11
(...continued)
citation omitted)). For example, the following statements of individual
legislators have no bearing on our interpretation of the phrase “rational
relationship”:

Representative Tom stated:

[T]he ‘rational relationship’ between the job and the
conviction is the lowest standard you can look at. We took
that standard because ‘rational’ is a lot lower than
‘substantial.’ ‘Rational’ is a lot lower than ‘reasonable.’
‘Rational’ is a very, very low and fair relationship to
establish.

Representative Yamane stated:

As far as the example that was given earlier, ‘rational
relationship’, if the person is convicted of theft and the
employer is concerned about the fellow employees, then theft
has a definite bearing because employees that you hire you
don’t want them to steal from your fellow employees and not
only from your own business. I feel there can be a
‘rational relationship’ to most things that crimes would
come under.

Representative Pendleton stated:

It would be well for us to remember that our floor debate is
going to be something that attorneys in the future look to.
We are creating an official record. The intent of this
body, and I just wanted to make it clear that, at least for
my thinking, that I think that pretty much any conviction
would bear a ‘rational relationship’ to job qualifications.

. . . .

And so I want the record to clearly reflect that just about
any conviction, I think, if a person cannot live up to the
rules established by the State of Hawai#i, the rules which
set forth what is acceptable conduct in our State, if you
cannot live up to that and you commit a crime and are duly
convicted, I think that is going to bear on the
employer/employee relationship.

H. Conf. Comm. Rep. No. 79, in 1998 House Journal at 769-771.

15
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

two-fold. First, the court must apprise itself of the

undisputed material facts relating to the duties and

responsibilities of the position. In so doing, the court is not

necessarily limited to duties and responsibilities contained in

a formal job description. Second, the court must analyze the

rationality of any relationship that the defendant has asserted

between the conviction and the employee’s ability to perform his

or her undisputed job duties.12 Where factual issues bearing on

the rationality of an asserted relationship remain, neither

party is entitled to summary judgment.

Here, HHSC/HMC has asserted two rational relationships

between Shimose’s conviction and the responsibilities and duties

of a radtech: (1) That radtechs have access to drugs, syringes,

needles, and patient charts; and (2) that radtechs work with

vulnerable patient groups who are at risk of having “their

medication taken from them and/or [being] sold an illegal

drug.”13 Before addressing those relationships, we briefly

12
This analysis must be tethered to the nature of the conviction.
For example, a conviction resulting from elder abuse would bear a rational
relationship to the duties and responsibilities of a position that required
close contact with the elderly, but a drug-related conviction might not.
13
Shimose argues that HHSC/HMC’s asserted rational relationships
should be disfavored because they were not introduced in response to his
administrative claim before the HCRC. Although the defendant has the
responsibility to posit rational relationships that motivated its employment
decision, the nature of those relationships may be asserted for the first time
before the trial court. Hypothetical relationships that did not, in fact,
motivate an employment decision should be disregarded.

16
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

discuss the primary duties and responsibilities of a radtech.

1. The Core Duties of a Radtech

Both HHSC’s and HMC’s formal job descriptions indicate

that radtechs at HMC are primarily responsible for medical

imaging and the preparation and maintenance of medical imaging

equipment. Other duties include preparing patients for imaging

and making sure that they are comfortable with the imaging

process. HMC’s radtechs also process, review, and transmit

radiographic images. There is no indication that radtechs at

HMC administer or even assist patients with any type of drugs.

A felony drug conviction simply has no bearing on an

individual’s ability to perform the primary imaging duties of a

radtech at HMC. Accordingly, there is no rational relationship

between Shimose’s drug conviction and the core duties of a

radtech at HMC that would have entitled HHSC/HMC to disqualify

Shimose from prospective employment.14

2. Access to Controlled Substances, Non-Controlled
Substances, Syringes and Needles, and Patient Charts

HHSC/HMC has contended that its radtechs “have access

to an array of drugs and related materials such as syringes and

needles.” Specifically, HHSC/HMC asserted that radtechs at its

14
Shimose argues that because he obtained licensure in radiology,
his suitability for employment with HHSC/HMC cannot be questioned. However,
the fact that an individual has received licensing and/or professional
certification does not conclusively establish the absence of a rational
relationship between a conviction and the duties and responsibilities of a
position.

17
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

facility have access to crash carts, drug reaction boxes,

anesthesia carts, and hospital storage areas. HHSC/HMC also

asserted that access to patient charts provides information that

can be used to divert drugs.

In this case, HHSC/HMC has not presented undisputed

facts that establish a rational relationship between a drug

conviction and an HMC radtech’s proximity to locked crash carts

and drug reaction boxes. Although crash carts and drug reaction

boxes at HMC contain syringes and needles, neither syringes nor

needles are controlled items. Syringes and needles are readily

and cheaply available to the public. Furthermore, an HMC

radtech’s potential access to the non-controlled substances

contained in crash carts and drug reaction boxes does not bear a

rational relationship to a drug conviction. There is no reason

why an employee with a drug conviction would pose a risk because

he or she has access to, among other things, sterile water,

Benadryl, sodium bicarbonate (baking soda), Zantac, or the other

substances contained in crash carts and drug reaction boxes.

None of the drugs in the crash cart or the drug reaction boxes

at HMC are regulated by the federal Controlled Substances Act,

and HHSC/HMC presented no rebuttal evidence tending to establish

that these substances are controlled in any way. See 21 U.S.C.

§ 812; 21 C.F.R. §§ 1308.11-1308.15.

18
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

Additionally, HHSC/HMC failed to establish the

rationality of the relationship between a drug conviction and an

HMC radtech’s fitness to handle patient charts as a matter of

law. HHSC/HMC failed to introduce undisputed material facts

showing that access to a patient’s chart would lead to access to

controlled substances.

Finally, the relationship between a drug conviction

and access to controlled substances may prove to be rational in

this case.15 Drug diversion is a serious problem at some

hospitals, and the risk of diversion may, depending on the

circumstances, rationally be increased by hiring an individual

with a conviction for the sale of a controlled substance.

However, diversion depends on access. See Diversion of Drugs

Within Health Care Facilities, 87(7) Mayo Clinic Proc. at 674

(“[D]ata suggest[s] that ready access is a critical component of

drug diversion from the health care facility workplace.”).

Issues of material fact remain surrounding HHSC/HMC’s

allegations that controlled substances might be present in

anesthesia carts and storage areas. Issues of material fact

also remain with respect to whether radtechs at HMC have a level

of access to anesthesia carts, storage areas, and the hospital

15
Subject to the general time limitations provided by HRS § 378-
2.5(c) and the exemptions provided by HRS § 378-2.5(d), if applicable.

19
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

pharmacy that is rationally related to a prior felony drug

conviction.16

3. Interaction With Youthful, Elderly, and Otherwise
Vulnerable Patients

HHSC/HMC asserts that there is a rational relationship

between a drug conviction and the risk that vulnerable patients

might have “their medication taken from them.” Although this

relationship is somewhat speculative, if an HMC radtech’s

contact with patients involved a legally significant degree of

access to controlled substances then it might create a rational

relationship. However, questions of material fact remain

regarding how a radtech at HMC could obtain controlled

substances from a patient in the course of his or her duties.

HHSC/HMC did not introduce undisputed evidence that its patients

have physical control over controlled substances that might be

diverted. HHSC/HMC did not assert that its patients have access

to quantities of pills, or that several doses of medication are

ever left out in a patient’s hospital room. HHSC/HMC did not

assert that its patients bring controlled substances with them

when undergoing radiographic imaging. HHSC/HMC merely asserted

that there is a risk that vulnerable patients would have their

medication taken. In the absence of undisputed material facts

16
Shimose contends that a radtech’s access to hospital areas
containing controlled substances does not exceed that of the general public, a
fact that if true would call into question the rationality of HHSC/HMC’s
“access” defense.

20
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

establishing access, HHSC/HMC was not entitled to summary

judgment on this theory.

Additionally, genuine issues of material fact remain

regarding the asserted relationship between Shimose’s felony

conviction and the risk that vulnerable patients “might be sold

an illegal drug.” If HRS § 378-2.5 extended so broadly that any

contact with the elderly or young children created a rational

relationship to a prior drug conviction, then all individuals

with prior drug convictions could be disqualified from any job

that dealt with the public at large. But drug convictions often

have nothing to do with elder/child abuse, and should not serve

as a blanket disqualification from employment that requires a

modicum of interaction with children and the elderly. Such a

broad discriminatory prohibition would contradict the

legislative compromise of HRS § 378-2.5.

IV. CONCLUSION

In conclusion, the circuit court erred when it granted

HHSC/HMC’s motion for summary judgment with respect to Shimose’s

statutory claim. Accordingly, we affirm in part and vacate in

part the ICA’s December 23, 2013 judgment on appeal and the

circuit court’s March 28, 2012 order granting HHSC/HMC’s cross-

21
 *** FOR PUBLICATION IN WEST’S HAWAI#I REPORTS AND PACIFIC REPORTER ***

motion for summary judgment, and remand to the circuit court for

further proceedings consistent with this opinion.17

Zak K. Shimose, /s/ Mark E. Recktenwald
petitioner pro se
/s/ Paula A. Nakayama
Sarah O. Wang
and Darin R. Leong /s/ Sabrina S. McKenna
for respondent
/s/ Richard W. Pollack

/s/ Steven S. Alm

17
We affirm the grant of summary judgment in favor of HHSC/HMC with
respect to Shimose’s constitutional claim because Shimose cannot establish a
liberty or property interest in prospective employment at HHSC/HMC. See
Minton v. Quintal, 131 Hawai#i 167, 186, 317 P.3d 1, 20 (2013) (“[M]erely
losing one position in a profession without being foreclosed from reentering
the field is generally not sufficient to demonstrate an infringement of a
liberty interest.” (internal quotations and citation omitted)).

We also note that pursuant to HRS §§ 378-2.5(d) and 78-2.7(b),
HHSC/HMC qualified for a statutory exception that allowed it to make a pre-
offer inquiry into Shimose’s conviction history on its general application
form.

22