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Electronically Filed
Supreme Court
SCWC-14-0000021
24-APR-2018
08:08 AM
IN THE SUPREME COURT OF THE STATE OF HAWAII
---o0o---
ARLEY H. NOZAWA,
Petitioner/Plaintiff-Appellant,
vs.
OPERATING ENGINEERS LOCAL UNION NO. 3,
Respondent/Defendant-Appellee,
SCWC-14-0000021
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000021; CIVIL NO. 11-1-2623-10)
APRIL 24, 2018
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.
OPINION OF THE COURT BY POLLACK, J.
This case involves a claim brought by an employee
against her former employer for allegedly terminating her on the
basis of her gender. The circuit court granted summary judgment
in favor of the employer, striking a declaration submitted in
opposition and also rejecting the employee’s own declarations as
uncorroborated, self-serving, and conclusory. We hold that Rule
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56(e) of the Hawaii Rules of Civil Procedure does not preclude
an affidavit from being self-serving, nor does it require an
affidavit to be corroborated by independent evidence. In
addition, unlike the employee’s declarations in this case, an
affidavit is conclusory if it expresses a conclusion without
stating the underlying facts or reaches a conclusion that is not
reasonably drawn from the underlying facts.
We also hold that the circuit court abused its
discretion in striking a declaration submitted by the employee
that complied with the circuit court’s order allowing
supplemental briefing. Accordingly, in light of the admissible
evidence, there was a genuine issue of material fact as to
whether the employer’s proffered reasons for the employee’s
termination were based on pretext, and thus we conclude that the
circuit court erroneously granted summary judgment in favor of
the employer.
I. BACKGROUND
Operating Engineers Local Union No. 3 (Local 3) is a
labor organization with headquarters in Alameda, California.
Local 3 operates a hiring or referral hall in accordance with
its collective bargaining agreement with signatory contractors.
Local 3 has a district office in the State of Hawaii (district
office) that is managed by the local district representative
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with the assistance of an Officer-in-Charge, who is physically
located in California.
On September 11, 2006, Arley Nozawa was hired as an
at-will employee for the single hiring hall dispatcher position
in the district office. As a dispatcher, Nozawa was responsible
for referring union members to employers in accordance with
Local 3’s Job Placement Regulations (JPR). In July 2010, Dan
Reding became the Officer-in-Charge of the district office,
responsible for the hiring and firing decisions for Local 3 with
the approval of the business manager, Russell Burns.
In January 2011, Pane Meatoga was appointed as the
district representative. Meatoga expressed a desire to bring in
his own secretary and organizer. At the time, the district
office’s sole organizer was Donald Gentzler, who also performed
the role of dispatcher when Nozawa was absent. Two days after
Meatoga’s effective start date, on February 3, 2011, Nozawa
received a termination letter dated January 27, 2011. The
termination letter read in pertinent part as follows: “I regret
to inform you that due to a reorganization and restructuring of
the Hawaii district office operations, your employment with
Operating Engineers Local Union No. 3 will be terminated as of
February 3, 2011.” Gentzler replaced Nozawa as dispatcher
effective February 4, 2011, and remained in that position until
July 31, 2012--when he was reassigned to the organizer position.
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A. Circuit Court
On October 31, 2011, after exhausting her
administrative remedies, Nozawa filed a complaint against Local
3 in the Circuit Court of the First Circuit (circuit court),
alleging inter alia that Local 3 violated Hawaii Revised
Statutes (HRS) § 378-2 by terminating her on the basis of her
gender.1 The complaint asserted that Nozawa was suddenly and
without cause terminated from her position as dispatcher by
Local 3 and immediately replaced with a male dispatcher who
received a pay raise and an increase in work hours, despite work
hours having been previously reduced for all dispatchers. In
addition, the complaint contended that at the time of her
termination, Nozawa did not have any performance problems and
was fully capable of performing her dispatcher duties in an
exemplary manner. Local 3 denied the allegations of gender
discrimination in its answer to Nozawa’s complaint.
On February 12, 2013, Local 3 filed a motion for
summary judgment, which included declarations from Toni Mendes
and Reding. Mendes identified herself as Local 3’s office
systems and job placement center coordinator and stated that her
workplace was in Sacramento, California. Mendes declared that
1
The complaint set forth four counts, three of which Nozawa
voluntarily dismissed. The dismissed counts are not further addressed.
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she began closely monitoring the technical aspects of Nozawa and
other dispatchers’ work performance in late 2008. Attached to
Mendes’ declaration was a JPR provision providing that, subject
to some exceptions, a dispatched employee who does not work at
least forty-eight hours straight is entitled to return to the
employee’s former position on the out-of-work list.2 Mendes
stated that Nozawa committed a serious dispatching error in
January 2010 when she did not properly restore an employee,
Richard Conradt, to his former place on the list in accordance
with the JPR.
In his declaration, Reding stated that Conradt
subsequently filed an unfair labor practice claim against Local
3, which it settled by paying Conradt $19,866.40 in lost wages
and fringe benefits and $5,500 in legal fees. Reding maintained
that no other dispatcher had ever committed an error of this
nature. Reding further stated that he sought and received
Burns’ approval to terminate Nozawa as a result of the error,
but Eugene Soquena, the district representative at the time,
requested that Nozawa be given a last chance to improve. Hence,
Reding continued, Nozawa was given a Final Written Warning
2
The out-of-work list establishes the priority in which out-of-
work union members are dispatched to available jobs.
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(Warning letter), dated April 19, 2010. The Warning letter read
as follows:
It has come to our attention that you continue to make
numerous mistakes in the discharge of your duties as
Dispatcher. Among others, key areas of deficiencies is
your lack of a clear grasp and understanding of the Hawaii
Job Placement Regulations (JPR). Consequently, this has
caused you to dispatch members improperly. Additionally,
there is an inordinate amount of registration overrides
caused by errors. Some of these overrides used incorrect
dates which allowed our members and others to be dispatched
incorrectly, seriously exposing our local to potential
legal liability. Recently, this transgression manifested
itself in the dispatch of member Richard Conrad, Jr. We
are still assessing the potential damage this error may
ultimately cause.
This will serve notice to you that any further mistakes on
your behalf in carrying out your duties, will result in the
immediate termination of your employment with OE3.
Additionally, if in the course of our investigation in the
processing of Mr. Conrad’s registration and dispatch, we
find additional errors, you will be subject to immediate
termination of employment.
Mendes also stated in her declaration that, even prior
to the error involving Conradt and after the Warning letter,
Nozawa made a number of recurring errors related to registration
overrides and the placement of employees on the out-of-work
list. According to Mendes, from late 2008 until Nozawa’s
termination, Mendes engaged in an effort to train Nozawa but she
continuously failed to fully comprehend the dispatching rules
and procedures. As examples, Mendes attached email
correspondences between herself and Nozawa from June to August
2010 in which they discussed the timing of monthly registration
lists, an override adjustment for an employee, and the dues for
retirees.
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Reding declared that his suggestion to Meatoga to
replace Nozawa with Gentzler was based on Gentzler’s impending
displacement as organizer and the reports of Mendes that Nozawa
continued to make dispatching errors following the Warning
letter. Gentzler was hired in September 2007 as an organizer,
Reding stated, and he had extensive experience with the JPR and
the collective bargaining agreement and had not received any
written warnings for deficient work performance. Reding also
explained that the increase in work hours for Gentzler was based
on a preexisting plan to return dispatchers to the forty-five-
hour week, as well as the lack of a backup dispatcher.3
Based on these declarations, Local 3 argued that in
reorganizing the district office, it decided to terminate Nozawa
in order to retain Gentzler, an experienced dispatcher with no
history of work performance problems and a clean disciplinary
record. Local 3 thus maintained that it had articulated
legitimate, nondiscriminatory reasons for Nozawa’s termination.
In opposition, Nozawa averred in her declaration that
she was falsely accused of making an error regarding the
placement of Conradt and that she had followed proper protocol.
Nozawa stated that her supervisor at the time, Soquena, never
3
In her declaration, Mendes explained that the work hours for
dispatchers were decreased in late December 2010 due to the depressed
economy.
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informed her during her employment of any work performance
problems that he had perceived. Soquena stopped the impending
termination because she had not made a mistake, Nozawa
explained, and she signed the Warning letter but disputed that
she had made a mistake.
Additionally, Nozawa stated in her declaration that
she had always received excellent employment evaluations, she
did not have work performance problems when she was terminated,
and she was fully capable of performing her job at the time of
termination. Pointing to the termination letter she received,
Nozawa attested that her termination was the result of an
alleged reorganization and restructuring, not disciplinary
action, and that she was terminated without cause. Nozawa also
declared that Gentzler had little experience as a dispatcher and
that when he replaced her, his work hours increased at an
increased pay.
Nozawa argued in her opposition that she received no
further write-ups or warnings following the Warning letter and
that, based on the record, there were issues of material fact
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related to her termination that required denial of Local 3’s
motion.4
Local 3 replied, attaching a supplemental declaration
from Mendes stating that she supervised the technical aspects of
Nozawa’s work performance and it was her honest assessment that
Nozawa had performance issues. Mendes disputed that Nozawa had
always received excellent employment evaluations, that she did
not have performance problems and was fully capable of
performing her job at the time of termination, and that she was
falsely accused of the error involving Conradt.
Local 3 argued in its reply that Nozawa provided
“uncorroborated, self-serving, conclusory statements” that did
not satisfy the requirements of Hawaii Rules of Civil Procedure
(HRCP) Rule 56(e) and were insufficient to defeat summary
judgment. Local 3 also contended that Nozawa was not competent
to testify to matters related to her own work performance and
qualifications.
Additionally, Local 3 submitted that Nozawa’s
termination was based on its honest belief that reorganization
was the most practical method of accommodating Meatoga’s desire
4
Nozawa later argued that the email exchanges between herself and
Mendes that occurred after she received the Warning letter did not show that
she had made mistakes.
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to hire a new organizer. Local 3 added that there was no
evidence anyone other than Nozawa committed the error involving
Conradt and that, in any event, Nozawa was not terminated
because of this error. Local 3 also asserted that the fact that
Nozawa did not receive a further write-up after the Warning
letter did not establish pretext because Nozawa was an at-will
employee who could be terminated at any time, “for any reason,
fair or unfair, with or without notice or warning.”
After the initial hearing on the motion for summary
judgment,5 Local 3 moved for leave to submit supplemental
briefing, contending that it was necessary for the court to
receive documents pertinent to certain declarations made by
Nozawa. The circuit court granted the motion and issued an
order, stating that Local 3 “has leave to file a Supplemental
Memorandum in Support of its Motion” and Nozawa “may file a
Supplemental Memorandum in Opposition addressing Defendant’s
Supplemental Memorandum.”
Local 3’s supplemental reply, which included exhibits
and a declaration from Mendes,6 argued that Nozawa had committed
5
The Honorable Karen T. Nakasone presided over the summary
judgment proceedings.
6
Mendes averred that, based on the computer printouts attached to
her declaration, she had an honest and sincere belief that Nozawa did in fact
enter incorrect registration dates for Conradt.
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placement errors involving Conradt, that Nozawa made subsequent
errors, and that Reding recommended that Nozawa be terminated as
part of a staffing reorganization. Local 3 maintained that,
based on these facts, there was no evidence of dishonesty or
pretext and that an employer’s belief that an employee committed
misconduct is a legitimate, nondiscriminatory reason for
termination.
Nozawa filed a supplemental opposition supported by
her declaration and a declaration from Local 3’s former
treasurer, William Mahoe (Mahoe Declaration). In his
declaration, Mahoe stated that he was appointed treasurer of
Local 3 in January 2009. He averred that, while serving as
treasurer, he attended union meetings in 2009 and 2010 at which
Burns, Reding, and other Local 3 officers were present. Mahoe
stated that at these meetings the officers of Local 3 discussed
replacing women dispatchers with men, to which he objected.
Mahoe also stated that he wanted Nozawa to remain in her
position as dispatcher; he felt that she was doing a good job.
Mahoe indicated that he resigned from Local 3 on January 23,
2011, and that he understood Nozawa was replaced by a male
dispatcher shortly thereafter.
In her declaration, Nozawa explained that Conradt
constantly worked jobs of short duration and that, in accordance
with the JPR, she placed him at the bottom of the out-of-work
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list until he provided the necessary paperwork showing that he
was laid off prior to working forty-eight hours straight. When
Conradt provided the required documentation, Nozawa averred, she
would perform an override to return him to his former position
on the list after obtaining the requisite authorization code
from Mendes. Nozawa argued in her supplemental opposition that
the alleged mistakes asserted by Local 3 were merely a pretext
for gender discrimination.
During Nozawa’s argument at a second hearing on the
motion for summary judgment, the circuit court raised sua sponte
the propriety of the submission of the Mahoe Declaration. The
court stated that it seemed to go beyond the scope of the
supplemental briefing, which the court believed “was just for
the purposes of the false accusation.” Nozawa explained that
she was not able to obtain the Mahoe Declaration when she
initially filed her opposition and that, in any event, the Mahoe
Declaration was properly before the court as she should be
permitted to respond to Local 3’s supplemental reply.
Local 3 asserted that Nozawa’s supplemental opposition
raised entirely new theories, the theories did not relate to her
claim that she was falsely accused of the error involving
Conradt, and the supplemental opposition exceeded the scope of
the court’s order. The court concurred in Local 3’s assessment
but upon reviewing the order acknowledged that the terms of the
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order had not limited the supplemental briefing to the “false
accusation.” The circuit court nonetheless indicated that its
recollection was that Local 3 specifically sought to supplement
its briefing as to Nozawa’s claim that she was falsely accused
of the error involving Conradt. Over Nozawa’s objection, the
court struck the Mahoe Declaration as beyond the scope of the
limited supplemental briefing and supplemental response.7
The circuit court then considered Nozawa’s
declarations and found that Nozawa’s statement that she was
falsely accused of the error involving Conradt was
unsubstantiated. The court also determined that the evidence
adduced by Nozawa consisted of “uncorroborated, self-serving,
conclusory statements” that were not sufficient to establish
genuine issues of material fact under the summary judgment
standard.8 Ruling that the declarations lacked the competent
evidence required under HRCP Rule 56 to show pretext, the court
granted Local 3’s motion for summary judgment.
The circuit court entered its final judgment on
October 18, 2013. Nozawa filed a motion for reconsideration, in
7
The court also denied Nozawa’s request to supplement her briefing
and to allow Local 3 to respond.
8
The court cited Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054 (9th Cir. 2002), and Hansen v. United States, 7 F.3d 137 (9th Cir.
1993).
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which she argued that the Mahoe Declaration responded to the
supplemental reply and did not go beyond the scope of the
supplemental briefing. The court denied the motion. Nozawa
timely filed a notice of appeal to the Intermediate Court of
Appeals (ICA) from the circuit court’s final judgment and the
order denying the motion for reconsideration.
B. ICA Proceedings
In her appeal, Nozawa contended that the circuit court
(1) abused its discretion when it struck the Mahoe Declaration9
and (2) erred in granting Local 3’s motion for summary judgment.
In a memorandum opinion, the ICA affirmed the circuit
court’s final judgment.10 First, the ICA found that the
supplemental briefing was limited to Nozawa’s claim that she was
falsely accused in the Conradt incident, that the Mahoe
Declaration exceeded this scope, and that the circuit court
accordingly did not abuse its discretion in striking the Mahoe
Declaration.
Second, the ICA determined that Local 3 articulated
legitimate, nondiscriminatory reasons for terminating Nozawa and
9
Nozawa alternatively contended that the circuit court abused its
discretion in denying her request to supplement her briefing.
10
The ICA’s memorandum opinion can be found at Nozawa v. Operating
Engineers Local Union No. 3, NO. CAAP-14-0000021, 2017 WL 2670800 (Haw. App.
June 21, 2017).
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that the burden shifted to Nozawa to demonstrate that Local 3’s
proffered reasons were pretextual. The ICA found that the only
proper evidence that Nozawa provided to support her gender
discrimination claim were her declarations, which included the
averment that she always received excellent employment
evaluations. The ICA noted that, while Nozawa stated that she
signed the Warning letter but disputed that she had made a
mistake, Nozawa did not provide documentation or further
details. The ICA further found that Nozawa did not contest that
a staff reorganization occurred after Meatoga’s appointment and
Nozawa did not provide evidence that she was more qualified for
the dispatcher position than Gentzler. Thus, the ICA concluded
that Nozawa failed to show that there was a genuine issue of
material fact as to whether Local 3’s proffered reasons for her
termination were pretextual.
II. STANDARD OF REVIEW
This court reviews an award of summary judgment de
novo under the same standard applied by the lower court. Adams
v. CDM Media USA, Inc., 135 Hawaii 1, 12, 346 P.3d 70, 81 (2015)
(citing Shoppe v. Gucci Am., Inc., 94 Hawaii 368, 376, 14 P.3d
1049, 1057 (2000)).
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III. DISCUSSION
On certiorari, Nozawa presents two questions for
review: (1) whether the ICA erred in failing to view the
evidence in the light most favorable to her as the non-moving
party in the summary judgment proceeding and (2) whether the ICA
erred in failing to consider her declarations and the
declaration of Mahoe.
In response, Local 3 contends that the ICA considered
Nozawa’s declarations, neither of which satisfied the
requirements of HRCP Rule 56(e); the circuit court properly
struck the Mahoe Declaration, which exceeded the scope of the
supplemental briefing; and the ICA viewed the evidence in the
light most favorable to Nozawa, who failed to dispute the
staffing reorganization, Gentzler’s work performance, and his
knowledge about the collective bargaining agreement and the JPR.
A. The Circuit Court And The ICA Erred In Not According The
Proper Weight To Nozawa’s Declarations
Pursuant to HRCP Rule 56(e) (2000), affidavits
supporting or opposing a motion for summary judgment “shall be
made on personal knowledge, shall set forth such facts as would
be admissible in evidence, and shall show affirmatively that the
affiant is competent to testify to the matters stated therein.”
Thus, affidavits that state ultimate or conclusory facts cannot
be used in support of or in opposition to a motion for summary
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judgment. GECC Fin. Corp. v. Jaffarian, 79 Hawaii 516, 525, 904
P.2d 530, 539 (App. 1995).
In this case, Nozawa’s declarations included
statements that related to her general work performance as a
dispatcher and the specific incident involving Conradt that
resulted in the Warning letter. The circuit court gave no
weight to either category of Nozawa’s statements, while the ICA
gave no weight to the latter.
1. Nozawa’s general work performance
We turn first to Nozawa’s statements related to her
general work performance as a dispatcher. In her first
declaration, Nozawa stated that she always received excellent
employment evaluations and was not informed by Soquena of any
work performance concerns. Nozawa also stated that she did not
have work performance problems and was fully capable of
performing her job at the time she was terminated.
Additionally, Nozawa pointed to the termination letter she
received, which informed her that she was terminated not because
of any disciplinary action but based on reasons related to
reorganization and restructuring.
The circuit court rejected Nozawa’s declarations,
finding that Nozawa’s statements did not satisfy HRCP Rule 56(e)
because they were uncorroborated, self-serving, and conclusory.
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The circuit court’s ruling indicates that it misconstrued the
standard for affidavits or declarations supporting or opposing a
summary judgment motion. HRCP Rule 56(e) provides that
affidavits shall set forth facts based on personal knowledge.
Thus, an affidavit by its nature includes an affiant’s own
perception of the matter. See Commentary to Hawaii Rules of
Evidence (HRE) Rule 602 (1993) (“‘Personal knowledge,’ for
purposes of [HRE Rule 602], means that the witness perceived the
event about which [the witness] testifies and that [the witness]
has a present recollection of that perception.”).
The circuit court’s rejection of Nozawa’s statements
as “self-serving” is thus misplaced. HRCP Rule 56(e) does not
preclude an affidavit from being self-serving. Indeed, as the
Eleventh Circuit recently observed, “most affidavits submitted
[in response to a summary judgment motion] are self-serving.”
United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018)
(alteration in original) (quoting Payne v. Pauley, 337 F.3d 767,
772 (7th Cir. 2003)) (“[N]othing in Rule 56 (or, for that
matter, in the Federal Rules of Civil Procedure) prohibits an
affidavit from being self-serving.”).11 Thus, a party’s self-
11
Where a federal rule of procedure is substantially similar to a
Hawaii rule of procedure, this court may look to federal caselaw for
guidance. Stallard v. Consol. Maui, Inc., 103 Hawaii 468, 475, 83 P.3d 731,
738 (2004).
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serving statements that otherwise comply with HRCP Rule 56(e)
can be utilized to defeat summary judgment. Id.; Price v. Time,
Inc., 416 F.3d 1327, 1345, modified on other grounds on denial
of reh’g, 425 F.3d 1292 (11th Cir. 2005) (“Courts routinely and
properly deny summary judgment on the basis of a party’s sworn
testimony even though it is self-serving.”).
Additionally, HRCP Rule 56(e) does not require a
statement in an affidavit to be corroborated in order to be a
qualifying affidavit under the rule. HRCP Rule 56(e); Stein,
881 F.3d at 858 (“Nor does Rule 56 require that an otherwise
admissible affidavit be corroborated by independent evidence.”).
As the Stein court observed, “If corroboration is needed, then
that requirement must come from a source other than Rule 56.”
Stein, 881 F.3d at 858; Strickland v. Norfolk S. Ry. Co., 692
F.3d 1151, 1160 (11th Cir. 2012) (“[E]ven in the absence of
collaborative evidence, a plaintiff’s own testimony may be
sufficient to withstand summary judgment.” (citation omitted)).
Indeed, a requirement that an affidavit be corroborated would
establish a higher standard for admissibility than that required
for the introduction of evidence at trial. Nor has this court
ever held that an uncorroborated statement by a party to the
litigation is insufficient to raise a dispute as to a material
fact. See, e.g., Lales v. Wholesale Motors Co., 133 Hawaii 332,
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357-58, 328 P.3d 341, 366-67 (2014) (holding that the
plaintiff’s declaration presented sufficient evidence to raise
an issue of material fact as to whether his termination was
based on pretext); Acoba v. Gen. Tire, Inc., 92 Hawaii 1, 14-15,
986 P.2d 288, 301-02 (1999) (concluding that an affidavit--
submitted in opposition--alone was sufficient to defeat the
defendant’s motion for summary judgment).
Finally, the circuit court misapprehended what
constitutes a conclusory statement in the context of HRCP Rule
56(e). “Conclusory” is defined as “[e]xpressing a factual
inference without stating the underlying facts on which the
inference is based.” Conclusory, Black’s Law Dictionary (10th
ed. 2014). An “inference” in turn is “a conclusion reached by
considering other facts and deducing a logical consequence from
them.” Inference, Black’s Law Dictionary (10th ed. 2014); see
also 23B Am. Jur. Pleading and Practice Forms § 244 (2017) (“An
inference is a deduction of fact that the jury may logically and
reasonably draw from another fact or facts found or otherwise
established in the trial.”). Thus, when an assertion in an
affidavit expresses an inference without setting forth the
underlying facts on which the conclusion is based or states a
conclusion that is not reasonably drawn from the underlying
facts, the assertion is considered conclusory and cannot be
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utilized in support of or against a motion for summary judgment.
See Conclusory, Inference; see also Lujan v. Nat’l Wildlife
Fed’n, 497 U.S. 871, 888 (1990) (noting that the object of the
requirement in Federal Rules of Civil Procedure Rule 56(e) that
affidavits “set forth specific facts showing that there is a
genuine issue for trial” is not to make permissible conclusory
allegations in an affidavit). On the other hand, an inference
within an affidavit that is based on stated facts from which the
conclusion may reasonably be drawn is not conclusory and may be
used to support or oppose a motion for summary judgment.
To be sure, the underlying facts and the inference
must be based on personal knowledge and otherwise admissible in
evidence. HRCP Rule 56(e). Inferences that amount to opinions
thus must satisfy relevant evidentiary rules that would apply
were the evidence offered through witness testimony. Lay
opinions must be both “rationally based on the perception of
the” affiant and “helpful to a clear understanding of the
[affiant’s] testimony or the determination of a fact in issue.”
HRE Rule 701 (1993). An affiant generally may “give an opinion
on an ultimate fact involved in the case” when such an opinion
is properly supported by facts personally perceived.12 See
12
The Commentary to HRE Rule 704 clarifies that courts are
empowered to exclude opinions on “ultimate facts” that are not helpful to the
(continued . . .)
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Samson v. Nahulu, 136 Hawaii 415, 429, 363 P.3d 263, 277 (2015)
(citing HRE Rule 704); HRE Rule 701. But the affiant “may not
give opinions on questions of law as that would amount to legal
conclusions.”13 Nahulu, 136 Hawaii at 429, 363 P.3d at 277
(citing HRE Rule 704). Indeed, any legal conclusions drawn by
the affiant are not admissible evidence, regardless of whether
they are couched as the affiant’s opinion. Pulawa v. GTE
Hawaiian Tel, 112 Hawaii 3, 15, 143 P.3d 1205, 1217 (2006).
The statements in Nozawa’s declarations that she
always received excellent employment evaluations and that she
was not informed by Soquena of any work performance issues were
specific, factual information personally known to Nozawa. As
additional support of her assessment regarding her work
performance, Nozawa highlighted that the termination letter she
(. . . continued)
trier of fact under HRE Rules 701 and 702, as well as those that are
“prejudicial, confusing, misleading, unnecessarily cumulative, or lacking in
trustworthiness” under HRE Rule 403. Commentary to HRE Rule 704 (1993).
Opinions that “merely tell the jury what result to reach” are inadmissible
under these provisions. Id.; accord State v. Pinero, 70 Haw. 509, 520–21,
778 P.2d 704, 712 (1989) (excluding expert testimony that death was homicide
and not accident in murder trial as beyond the scope of admissible opinion).
13
The Commentary to HRE Rule 704 illustrates the distinction
between an opinion on an ultimate fact and a statement of law. “[T]he
question, ‘Did T have the capacity to make a will?’ would be excluded, while
the question, ‘Did T have sufficient mental capacity to know the nature and
extent of his property and the natural objects of his bounty and to formulate
a rational scheme of distribution?’ would be allowed.” Commentary to HRE
Rule 704.
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received stated her discharge was the result of reorganization--
not disciplinary action. In light of these statements, Nozawa
had a factual basis to reasonably infer that she did not have
work performance problems and was fully capable of performing
her duties at the time of termination.14 To the extent these
conclusions amounted to opinions, they were rationally based on
Nozawa’s personal perceptions and may have been helpful to a
clear understanding of her declaration and a fact at issue,
i.e., whether Local 3’s claim that Nozawa was terminated for
deficient performance was a pretext for discrimination.15
Further, the statements did not amount to legal conclusions
because they were essentially factual in nature and did not
attempt to apply a legal standard. Nozawa did not simply state,
for example, that her termination violated HRS § 378-2 or that
it was motivated by discriminatory intent, which would not have
been admissible evidence that could be considered for purposes
of summary judgment.
14
In the absence of a factual basis, neither an employee nor an
employer’s subjective assessment of the employee’s work performance is
admissible evidence upon which summary judgment can be based. See HRE Rule
701; HRCP Rule 56(e).
15
As stated, the trial court had discretion in accordance with HRE
Rules 403 and 701 to exclude statements of Nozawa’s opinion. There is no
indication the court based its ruling on these grounds.
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Because Nozawa did not express a conclusion without
stating the underlying facts or reach a conclusion that was not
reasonably drawn from the underlying facts, see Conclusory,
Inference, these statements were not conclusory and were in
compliance with HRCP Rule 56(e). And to the extent that some of
Nozawa’s statements were opinions, they were not clearly
inadmissible under governing evidentiary rules.
Accordingly, the circuit court erred in finding that
Nozawa’s declarations were not competent evidence under HRCP
Rule 56 because they were self-serving, conclusory, and
uncorroborated.16
2. Nozawa’s alleged error involving Conradt
Nozawa’s statements in her declarations also related
to the alleged error involving Conradt. The ICA found that
Nozawa provided no documentation or further details regarding
16
In ruling upon Nozawa’s declarations, the circuit court cited
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002), for the
proposition that uncorroborated, conclusory, or self-serving statements
cannot defeat summary judgment. However, unlike the plaintiff in Villiarimo,
who the Court of Appeals found had made assertions that were not supported by
the evidence in the record, 281 F.3d at 1063-64, Nozawa submitted statements
in compliance with the admissibility requirements of HRCP Rule 56(e).
The circuit court also relied on Hansen v. United States, 7 F.3d
137 (9th Cir. 1993), to support its finding that Nozawa’s declarations were
insufficient to defeat summary judgment. In Hansen, the Court of Appeals
stated that a nonmoving party that relies only on its own affidavits “cannot
rely on conclusory allegations unsupported by factual data to create an issue
of material fact.” 7 F.3d at 138. As stated, Nozawa’s declarations
contained assertions that were based on her personal knowledge and that would
be admissible in evidence.
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her statement that she disputed the contents of the Warning
letter. As stated above, there is no requirement that a
declaration in opposition to a summary judgment motion be
corroborated by independent evidence. See Stein, 881 F.3d at
858. Nozawa was thus not required to provide additional
documentation regarding her statement. The evidence in the
record also contradicts the ICA’s conclusion that Nozawa failed
to provide further details regarding the event.
The Warning letter specified that Nozawa had entered
incorrect dates resulting in members, and specifically Conradt,
being dispatched incorrectly. Nozawa averred that she had been
falsely accused of making a mistake as to Conradt, stating that
she had followed proper protocol. Nozawa explained that she
performed override corrections for Conradt in accordance with
the JPR and with Mendes’ approval. Nozawa’s declaration
indicated that she dealt directly with Conradt when the alleged
errors occurred, and thus she would have had personal knowledge
of Conradt’s paperwork. Further, Nozawa stated that when she
was to be terminated for the alleged error involving Conradt,
Soquena intervened and stopped the termination. Thus, Nozawa
did provide additional details disputing the Warning letter.
Accordingly, the circuit court and the ICA erred in
not properly considering Nozawa’s declarations as to the alleged
error involving Conradt.
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B. The Circuit Court Abused Its Discretion In Striking The Mahoe
Declaration
During the continued summary judgment hearing, the
circuit court stated that the Mahoe Declaration seemed to exceed
the limited scope of the supplemental briefing order, which the
court believed “was just for the purposes of the false
accusation.” After reviewing the order, which stated that
Nozawa “may file a Supplemental Memorandum in Opposition
addressing Defendant’s Supplemental Memorandum,” the court
acknowledged that the order did not in fact contain such a
limitation. The court nonetheless struck the Mahoe Declaration
based on its recollection of the purpose of the supplemental
briefing.
The order granting the motion for leave expressly
permitted Nozawa to file a supplemental memorandum addressing
Local 3’s supplemental reply. Local 3’s supplemental reply
argued that there was no disputed fact as to Nozawa’s deficient
work performance, Nozawa’s alleged error involving Conradt, and
the reorganization that occurred. Additionally, Local 3
contended that there was no evidence of dishonesty as to its
reasons for terminating Nozawa and no evidence of pretext, and
thus it was entitled to summary judgment.
Nozawa, in response, submitted a supplemental
opposition with her own declaration and a declaration from
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Mahoe. The Mahoe Declaration provided evidence that indicated
Nozawa may have been terminated based on her gender and not due
to inadequate work performance or reorganization as Local 3
maintained. Mahoe averred that, while treasurer, he attended
meetings in 2009 and 2010 at which Local 3 officers discussed
replacing women dispatchers with men. The Mahoe Declaration
named Burns and Reding as two of the officers present during
those meetings, both of whom were involved in the decision to
terminate Nozawa. Reding was also involved in the decision to
discipline Nozawa over the Conradt incident. Mahoe additionally
declared that he believed Nozawa was doing a good job and that
he wanted her to remain in her position as dispatcher.
The Mahoe Declaration therefore addressed the
arguments raised in Local 3’s supplemental reply regarding the
quality of Nozawa’s work, the alleged error involving Conradt,
and the presence of dishonesty or pretext in the decision to
terminate Nozawa. The declaration was accordingly within the
scope of the circuit court’s order granting leave to submit
supplemental briefing.
An abuse of discretion occurs when a court “clearly
exceed[s] the bounds of reason or disregard[s] rules or
principles of law or practice to the substantial detriment of a
party litigant.” Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,
74 Haw. 85, 114, 839 P.2d 10, 26 (1992) (citing State v. Akina,
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73 Haw. 75, 78, 828 P.2d 269, 271 (1992)). Here, the circuit
court disregarded principles of law or practice by striking the
Mahoe Declaration, which was in compliance with the court’s
order. Thus, the circuit court abused its discretion in not
considering the Mahoe Declaration, substantially prejudicing
Nozawa’s ability to controvert Local 3’s supplemental reply.
C. There Is A Genuine Issue Of Material Fact As To Whether Local
3’s Reasons For Terminating Nozawa Were Pretextual
“[S]ummary 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 as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Adams v. CDM
Media USA, Inc., 135 Hawaii 1, 12, 346 P.3d 70, 81 (2015)
(alteration in original) (quoting Shoppe v. Gucci Am., Inc., 94
Hawaii 368, 376, 14 P.3d 1049, 1057 (2000)). “A fact is
material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a
cause of action or defense asserted by the parties.” Id.
(quoting Shoppe, 94 Hawaii at 376, 14 P.3d at 1057).
The burden is on the moving party to establish that
summary judgment is proper. French v. Haw. Pizza Hut, Inc., 105
Hawaii 462, 470, 99 P.3d 1046, 1054 (2004). “This burden always
remains with the moving party and requires the moving party to
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convince the court that no genuine issue of material fact exists
and that the moving part[y] is entitled to summary judgment as a
matter of law.” Id. (citation omitted).
“[O]nce a summary judgment movant has satisfied its
initial burden of producing support for its claim that there is
no genuine issue of material fact, the party opposing summary
judgment must ‘demonstrate specific facts, as opposed to general
allegations, that present a genuine issue worthy of trial.’”
Lales v. Wholesale Motors Co., 133 Hawaii 332, 359, 328 P.3d
341, 368 (2014) (quoting French, 105 Hawaii at 470, 99 P.3d at
1054). “[T]he evidence must be viewed in the light most
favorable to the non-moving party.” Adams, 135 Hawaii at 12,
346 P.3d at 81 (alteration in original) (quoting Shoppe, 94
Hawaii at 376, 14 P.3d at 1057).
HRS § 378-2(a)(1)(A) (1993 and Supp. 2010) provides as
follows: “It shall be an unlawful discriminatory practice: (1)
Because of . . . sex . . . For any employer to . . . discharge
from employment . . . any individual.” Thus, HRS § 378-2
prohibits an employer from discharging a person because of that
person’s gender.17 Discrimination may be proven by
17
Employers of at-will employees are subject to the provisions of
HRS § 378-2. HRS chapter 378 defines “employer” as “any person, including
the State or any of its political subdivisions and any agent of such person,
having one or more employees, but shall not include the United States.” HRS
(continued . . .)
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circumstantial evidence. Shoppe, 94 Hawaii at 378, 14 P.3d at
1059. When analyzing a claim of discrimination that relies on
circumstantial evidence, we engage in a three-step analysis.
Adams, 135 Hawaii at 13, 346 P.3d at 82 (citing Shoppe, 94
Hawaii at 378-79, 14 P.3d at 1059-60).
First, the plaintiff must establish a prima facie case of
discrimination by demonstrating, by a preponderance of
evidence, the following four elements: (1) that plaintiff
is a member of a protected class; (2) that plaintiff is
qualified for the position . . . from which plaintiff has
been discharged; (3) that plaintiff has suffered some
adverse employment action, such as a discharge; and (4)
that the position still exists.
Shoppe, 94 Hawaii at 378, 14 P.3d at 1059 (citation omitted).
Second, “[o]nce the plaintiff establishes a prima
facie case of discrimination, the burden of production shifts to
the defendant to articulate a legitimate, nondiscriminatory
reason for the adverse employment action.” Adams, 135 Hawaii at
13, 346 P.3d at 82 (citing Shoppe, 94 Hawaii at 378, 14 P.3d at
1059). “The employer’s explanation must be in the form of
admissible evidence and must clearly set forth reasons that, if
believed by the trier of fact, would support a finding that
(. . . continued)
§ 378-1 (1993). “In enacting the employment discrimination law, the
legislature intended that all employers, regardless of size, be subjected to
its provisions.” Sam Teague, Ltd. v. Hawaii Civil Rights Comm’n, 89 Hawaii
269, 281, 971 P.2d 1104, 1116 (1999) (referencing definition of “employer” in
HRS § 378–1 (1993)).
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unlawful discrimination was not the cause of the challenged
employment action.” Id. (citing Shoppe, 94 Hawaii at 378, 14
P.3d at 1059).18
Third, “if the employer rebuts the prima facie case,
the burden reverts to the plaintiff to demonstrate that the
defendant’s proffered reasons were ‘pretextual.’” Id. at 14,
346 P.3d at 83 (citing Shoppe, 94 Hawaii at 379, 14 P.3d at
1060).
Summary judgment is improper if there is a genuine
issue as to whether a defendant’s reasons for terminating the
plaintiff are a pretext for discrimination. See Simmons v. Aqua
Hotels & Resorts, Inc., 130 Hawaii 325, 331-32, 310 P.3d 1026,
1032-33 (App. 2013) (finding that a fact issue existed as to
whether the defendant’s reasons were pretextual); see also
Shoppe, 94 Hawaii at 382, 14 P.3d at 1063 (“Plaintiff has not
alerted this court to any other evidence that would give rise to
a genuine issue of material fact” as to whether the defendant’s
reason for taking adverse employment action against the
plaintiff was pretextual).
18
The ICA’s decision and the parties’ arguments on certiorari
predominantly focus on pretext. In light of our resolution of this issue, we
do not consider whether there was a genuine issue of material fact as to
whether Local 3 articulated a legitimate, nondiscriminatory reason for its
adverse employment action against Nozawa.
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In support of its motion for summary judgment, Local 3
submitted declarations stating that it terminated Nozawa as part
of a staffing reorganization to retain Gentzler, who unlike
Nozawa had not committed a serious dispatching error and did not
have work performance problems. Nozawa responded with evidence
indicating that her termination was not based on the reasons
provided by Local 3 but, rather, because of her gender. Nozawa
declared that she did not have work performance problems and was
fully capable of performing her job at the time of termination;
her supervisor, Soquena, never informed her of any work
performance problems; and she always received excellent
employment evaluations. Nozawa also pointed to the termination
letter she received, which stated that her termination was the
result of reorganization and restructuring and did not reference
inadequate work performance.19 As to the alleged error involving
Conradt, Nozawa explained that she had followed established
procedure in obtaining a code from Mendes after Conradt provided
the necessary paperwork in accordance with the JPR, and she then
performed the override corrections.
Further, in the Mahoe Declaration attached to Nozawa’s
supplemental opposition, Mahoe averred that, while treasurer, he
19
The parties also provide differing views as to whether the email
exchanges between Nozawa and Mendes after the Warning letter demonstrate that
Nozawa continued to make mistakes.
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attended meetings in 2009 and 2010 at which Local 3 officers
discussed replacing women dispatchers with men. Mahoe stated
that he objected, as he felt Nozawa was doing a good job and
wanted her to remain as the dispatcher. Additionally, Mahoe
named Reding and Burns as two of the officers present at the
specified meetings, and as Local 3’s evidence shows, both Reding
and Burns were involved in the decision to terminate Nozawa.
In sum, Nozawa provided evidence contradicting Local
3’s contention that she was terminated due to reorganization and
deficient job performance. Thus, the evidence, viewed in the
light most favorable to Nozawa, demonstrates that there is a
genuine issue as to whether Local 3’s reasons for terminating
her were pretextual.20 “[S]ummary judgment should not be granted
unless the entire record shows a right to judgment with such
clarity as to leave no room for controversy and establishes
affirmatively that the adverse party cannot prevail under any
circumstances.” Simmons, 130 Hawaii at 332, 310 P.3d at 1033
(alteration in original) (quoting Balthazar v. Verizon Haw.,
20
Relying on Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054
(9th Cir. 2002), Local 3 contends that the inquiry is whether the employer’s
honest belief in the employee’s misconduct was the reason for the employee’s
termination. This reliance is misplaced because there is a genuine issue of
material fact as to whether Local 3 honestly believed its reasons for
terminating Nozawa. See Lales, 133 Hawaii at 358, 328 P.3d at 367 (holding
that the defendants’ reliance on Villiarimo was unpersuasive because there
was a genuine issue of material fact as to whether the employer honestly
believed its reasons for its actions).
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Inc., 109 Hawaii 69, 72, 123 P.3d 194, 197 (2005)).
Accordingly, the circuit court erred in granting summary
judgment in favor of Local 3.
IV. CONCLUSION
Based on the foregoing, the ICA’s July 28, 2017
Judgment on Appeal, the circuit court’s October 18, 2013 final
judgment, the circuit court’s order granting the motion for
summary judgment, and the December 4, 2013 order denying
Nozawa’s motion for reconsideration are vacated, and the case is
remanded to the circuit court for further proceedings.
Charles H. Brower and /s/ Mark E. Recktenwald
Michael Healy
for petitioner /s/ Paula A. Nakayama
Ashley K. Ikeda and /s/ Sabrina S. McKenna
David A. Rosenfeld
for respondent /s/ Richard W. Pollack
/s/ Michael D. Wilson
34