source: Caselaw Access Project

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text:
    Richard A. VILLAVER, Petitioner/Plaintiff-Appellant, v. David Kawika SYLVA; Hawaii Mega-Cor, Inc., a Hawai'i domestic for-profit corporation, Respondents/Defendants-Appellees.
    SCWC-14-0001086
    Supreme Court of Hawai'i.
    MAY 13, 2019
    Charles H. Brower, Honolulu, for Petitioner
    J. Patrick Gallagher, Erin I. Macdonald, Honolulu, for Respondents
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY WILSON, J.

In order to expedite the often extensive discovery process, Hawai'i Rules of Civil Procedure ("HRCP") Rule 36 allows a party to a lawsuit to "serve upon any other party a written request" for admissions. Requesting that a party admit the truth of matters of fact, or of the application of law to fact, narrows the issues that must be proven at trial to those that are actually disputed, which fosters more efficient trials. However, because a careless or inexpert litigant might unintentionally admit an entire case by failing to respond to a request for admissions, HRCP Rule 36(b) gives the trial court the discretion to permit the withdrawal of the admissions on the motion of an admitting party, so long as withdrawal will facilitate presentation of the merits and will not prejudice the party that obtained the admissions. Courts should exercise this discretion liberally in cases involving pro se litigants, which invoke the judicial system's interest in "promotion of equal access to justice[.]" Waltrip v. TS Enters., Inc., 140 Hawai'i 226, 239, 398 P.3d 815, 828 (2016).

In this case, claims brought by pro se Petitioner/Plaintiff-Appellant Richard A. Villaver ("Villaver") were dismissed based on his alleged failure to timely respond to a request for admissions-notwithstanding his request that the court provide him with an interpreter to help answer the requests. Villaver was denied the opportunity to exercise the right to a jury trial on the basis of his alleged failure to respond to a request for admissions that asked him to concede he had no claim. Villaver appeals from the judgment of the Intermediate Court of Appeals ("ICA"), which affirmed the order of the Circuit Court of the First Circuit ("circuit court") granting summary judgment against Villaver on the basis of his failure to timely respond to the request for admissions. He argues that the ICA erred in affirming the circuit court and that his request for an interpreter should have been construed by the circuit court as a request to withdraw the admissions and file a late response. We agree.

I. BACKGROUND

A. Complaint and Court-Annexed Arbitration

On November 15, 2010, Villaver filed a complaint in the circuit court, alleging that on August 20, 2008, Respondent/Defendant-Appellee David Kawika Sylva ("Sylva"), an employee of Respondent/Defendant-Appellee Hawaii Mega-Cor, Inc. ("HMCI"), negligently drove an HMCI-owned van into Villaver's sedan while it was being operated by Villaver. Villaver alleged that as a result of Respondents' negligence, "he suffered and continues to suffer from damages including, but not limited to, past and future medical and related expenses; past and future pain and suffering; past and future loss of enjoyment of life; [and] past and future serious emotional distress," and that he is entitled to compensation.

The matter proceeded through a non-binding Court Annexed Arbitration Program ("CAAP"), where Villaver was represented by counsel. The arbitrator found in favor of Villaver, and awarded him $24,245.58 in damages: $5,942.62 in medical expenses, $8,302.96 of lost wages, and $20,000 in general damages, less $10,000 for the covered loss deductible.

B. Post-CAAP Proceedings

On August 31, 2012, Villaver appealed the CAAP award and requested a trial de novo. On March 13, 2013, Villaver's attorney filed a motion to continue the trial and to withdraw as counsel. Villaver told his attorney that he would seek replacement legal counsel. Respondents took no position on the motion, and, after a hearing on April 3, 2013, the court granted the first motion to continue trial and for withdrawal of counsel, and set May 13, 2013 as the date for the trial setting conference. At the trial setting conference on May 13, 2013, Villaver made his first pro se appearance and requested more time to obtain counsel. A new trial setting conference was set for June 20, 2013. On June 20, 2013, Villaver appeared pro se for the second time, and trial was set for the week of June 23, 2014. The discovery deadline had been set as April 24, 2014, and the substantive motions deadline had been set as May 5, 2014.

Approximately nine months after Villaver's second pro se appearance, on March 17, 2014, Respondents served Villaver with a request for admissions via U.S. mail. The request contained seventy-seven statements. Among those statements were five statements that the circuit court later relied upon to grant summary judgment to Respondents on all claims. The five statements requested that Villaver take a position contrary to the claims he successfully asserted before the CAAP arbitrator; specifically, they requested that he admit it was his negligence that caused the accident and that he incurred no injuries:

16. You were reversing your car out of a parking stall at the time of the subject accident.
....
18. Your negligence was the sole legal cause of the subject accident.
....
70. You did not sustain any injuries as a result of the subject accident.
....
76. You did not incur any general damages as a result of the subject accident.
....
77. You did not incur any special damages as a result of the subject accident.[ ]

Less than a month after Villaver received the request for admissions, on April 15, 2014, defense counsel received a letter dated April 11, 2014 from Villaver's wife. Her letter explained that Villaver received the request for admissions and understood that the deadline to respond was April 18, but stated that Villaver was unable to complete the paperwork. According to Villaver's wife, Villaver became very stressed and overwhelmed when he tried to answer the questions, had a difficult time remembering the specifics of his treatments, and did not understand English well. She explained further that Villaver did not have legal representation and that she could not help him because she was suffering from depression and anxiety. She concluded her letter by explaining that they were returning the paperwork to defense counsel uncompleted.

On May 1, 2014, Respondents Sylva and HMCI filed a motion for summary judgment. Respondents argued that, under HRCP Rule 36(a), because Villaver did not respond to the request for admissions within thirty days of service of the request, the matters contained within the request were admitted. HRCP Rule 36(a) states that each matter for which an admission is requested "is admitted unless, within 30 days after service of the request, ... the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or by the party's attorney[.]" Based on Villaver's admissions, Respondents argued that Villaver's claims against them failed as a matter of law because he could not prove the elements of his negligence claim. Accordingly, Respondents requested summary judgment. The letter from Villaver's wife to defense counsel was attached to their motion as an exhibit.

Twenty days later, on May 21, 2014, the court held a hearing on Respondents' motion for summary judgment. At the hearing, Villaver explained to the court that he could not respond to the request for admissions because he was losing memory of the event, and because he could not understand English well. He testified that he mostly spoke Visayan with his mother and Filipino in his business. He requested an interpreter to help him answer the questions, saying, "if you can give me one interpreter, that would help me for answer that question. Because some English I don't really understand. ... All I see, I cannot read. I cannot really understand." The court noted that Villaver previously appeared in court and had not indicated that he had any difficulty speaking or understanding English; the court also elicited from Villaver that he had lived in Hawai'i for forty-one years and that he had attended public elementary, intermediate, and high school in Hawai'i. The court denied his request for an interpreter to assist him with the written documents. The court also observed that its June 2013 trial status-setting order contained various pre-trial deadlines, and that there had been ample time for Villaver to obtain new counsel or proceed pro se.

The court indicated to Villaver that it was inclined to grant the summary judgment motion on the basis of his failure to respond to the request for admissions:

[THE COURT:] Mr. Villaver, so the defendants are requesting that this court grant summary judgment in their favor, which means finding that they were not negligent, not liable, and that the basis, the reason why they're saying they should get judgment in their favor, along -- in addition to what's been argued today, is that you did not respond to the requests for admissions that were sent to you; and under the rules, if you don't respond within the time period, the admissions are -- the requests are deemed admitted. So not responding to their requests for admissions within 30 days or by 30 days, you have now admitted the requests that they had put in there, in particular -- well, there's a number of them. I won't go through them because they're all contained in the motion. But, essentially, the admission being that you were negligent and Defendants were not.
So I'm inclined to grant the motion, as the responses were not provided -- there was no response provided to the request for admissions. The rule requires a response.

At the conclusion of the hearing, the court deemed the statements admitted, concluded that there would be no genuine issue of material fact for trial, and granted Respondents' motion for summary judgment.

Approximately one month after the hearing, on June 26, 2014, the court's order was filed. In the order, the court explained that "[b]ecause no written answer or objection addressed to the matter and signed by the Plaintiff was served with respect to Defendants' Request for Admissions, Defendants' Request for Admissions are therefore deemed admitted." The court found that the following five admissions demonstrated that there were no genuine issues as to any material fact:

(a) Plaintiff was reversing his car out of a parking stall at the time of the subject accident (Request for Admissions No. 16);
(b) Plaintiff's negligence was the sole legal cause of the subject accident (Request for Admissions No. 18);
(c) Plaintiff did not sustain any injuries as a result of the subject accident (Request for Admissions No. 70);
(d) Plaintiff did not incur any general damages as a result of the subject accident (Request for Admissions No. 76); and
(e) Plaintiff did not incur any special damages as a result of the subject accident (Request for Admissions No. 77).

Based on these admitted facts, the court ordered that Respondents' motion for summary judgment be granted. Judgment was entered in favor of Respondents on June 23, 2014. This appeal followed.

C. Appeal to the ICA

On appeal, Villaver contended through retained counsel that the circuit court erred in granting summary judgment. He argued that it should have allowed him to withdraw his admissions under HRCP Rule 36(b). HRCP Rule 36(b) provides discretion to the court to permit the withdrawal of admissions if doing so would facilitate presentation of the merits and would not prejudice the party that obtained the admissions:

[T]he court may permit withdrawal or amendment [of any admission] when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining his or her action or defense on the merits.

Villaver's opening brief requested that his "inarticulate pro se " attempts to explain his failure to respond to the request for admissions and the motion for summary judgment-namely, his wife's letter to defense counsel and his oral arguments about his faulty memory and difficulty with the English language-be construed as a motion to withdraw the admissions under HRCP Rule 36(b). He argued that the circuit court's failure to consider his request for an interpreter as a motion to withdraw admissions was an abuse of its discretion, and that the circuit court erred in its decision to award summary judgment on the basis of the statements he was deemed to have admitted. He contended that the court should have allowed him to withdraw his admissions. He argued further that the court should have given him one last chance to obtain assistance of counsel and to answer the request for admissions with such assistance.

The ICA affirmed the circuit court's order granting summary judgment. Villaver v. Sylva, No. CAAP-14-0001086, 2017 WL 4534435, at *4 (App. Oct 11, 2017) (SDO). In reaching this decision, the ICA acknowledged that, where possible, the court should "afford[ ] litigants the opportunity to have their cases heard on the merits[.]" Id. at *2 (citing Marvin v. Pflueger, 127 Hawai'i 490, 496, 280 P.3d 88, 94 (2012) ). However, the ICA expressed concern that Villaver had not followed the rules of discovery while representing himself, stating that "pro se plaintiffs are not exempt from discovery rules." Id. It found that Villaver's wife's letter was not a proper objection to the request for admissions under HRCP Rule 36(a), and that Villaver's pro se in-court request for appointment of an interpreter was not a request to withdraw admissions. Id.

The ICA cited the standard enunciated in HRCP Rule 36(b) to determine whether the circuit court properly exercised its discretion to allow for the withdrawal of admissions:

[I]n exercising its discretion the court must apply the test set forth in Rule 36(b) : (1) whether the presentation of the merits will be subserved if the withdrawal of the admission is permitted and (2) whether the party who obtained the admission can satisfy the court that withdrawal will prejudice him in maintaining his action or defense on the merits.

Id. at *3 (internal quotation marks and ellipses omitted) (quoting W.H. Shipman, Ltd. v. Hawaiian Holiday Macadamia Nut Co., 8 Haw. App. 354, 366-67, 802 P.2d 1203, 1209-10 (1990) ). The ICA distinguished Villaver's case from Shipman, wherein the defendant was represented by counsel who filed untimely answers to a request for admissions. Id. (citing Shipman, 8 Haw. App. at 366, 802 P.2d at 1209 ). The defendant in Shipman subsequently filed a motion to amend a discovery order which the ICA construed to impliedly include a motion to withdraw statements that had been previously deemed admitted and to submit a late response. 8 Haw. App. at 367, 802 P.2d at 1210. The ICA noted that in Shipman, defendant Hawaiian Holiday had belatedly answered Shipman's interrogatories, produced requested documents, and allowed Shipman to depose two of its officers; additionally, there were two and a half months left before trial when it did respond. Villaver, 2017 WL 4534435, at *3 (citing Shipman, 8 Haw. App. at 367, 802 P.2d at 1210 ). The ICA found it significant that at the time of his request for an interpreter, Villaver had not moved forward with discovery in any way, numerous discovery deadlines had passed, and there were only a few weeks left until trial. Id. at *4. The ICA held that the circuit court did not abuse its discretion in concluding that Respondents would have been prejudiced in maintaining their defense if withdrawal was permitted. Id.

Villaver filed an application for a writ of certiorari with this court, which was accepted.

II. STANDARDS OF REVIEW

An abuse of discretion occurs if the trial court has "clearly exceeded the bounds of reason or disregarded 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).

"On appeal, the grant or denial of summary judgment is reviewed de novo. " Nuuanu Valley Ass'n v. City & Cty. of Honolulu, 119 Hawai'i 90, 96, 194 P.3d 531, 537 (2008). "[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 judgment as a matter of law." Id. (quoting Kahale v. City & Cty. Of Honolulu, 104 Hawai'i 341, 344, 90 P.3d 233, 236 (2004) ).

III. DISCUSSION

A. Villaver's Request for an Interpreter Should Have Been Deemed a Motion to Withdraw His Admissions.

Although Villaver's failure to respond to Respondents' request for admissions provided a proper basis to find the requests admitted under HRCP Rule 36(a), his request for an interpreter should have been considered as a motion to withdraw his admissions under HRCP Rule 36(b).

HRCP Rule 36(a) allows one party to serve another a written request for admissions. A request for admissions must set forth statements of fact, of opinion, or of the application of law to fact, that concern issues in the case. HRCP Rule 36(a). The party in receipt of the request can answer or object to each matter for which an admission is requested. If the party chooses to answer, the party must "specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter." Id. If the party denies a matter, the party must "fairly meet the substance of the requested admission[.]" Id. If the party gives lack of information or knowledge as a reason for failure to admit or deny a matter, the party must "state[ ] that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny." Id. If the party chooses to object, it must state the reasons for the objection. Id. An answer or objection must be written and signed by the party or the party's attorney. Id. If the party neither answers nor objects to a matter within thirty days after service of the request for admissions, or within such shorter or longer time as the court allows or the parties agree to in writing, then the matter is admitted. Id.

As Villaver concedes, he failed to respond to the request for admissions within thirty days of service as required by HRCP Rule 36(a). The letter from Villaver's wife to defense counsel did not constitute an answer or objection to the request for admissions pursuant to HRCP Rule 36(a), and, as such, did not preclude the court from deeming the statements admitted after thirty days. In her letter, Villaver's wife explained that Villaver was unable to respond to the request for admissions because, when he tried, he became overwhelmed, couldn't remember facts, or couldn't understand the questions. She explained that they were returning the paperwork to defense counsel uncompleted. Her letter did not constitute an answer because it was not signed by Villaver or by an attorney representative, and thus did not comply with HRCP Rule 36(a). Furthermore, the letter could not be construed as a motion to withdraw admissions because the letter was sent and received before the statements in the request for admissions were deemed admitted. However, the letter was relevant to the court's determination as to the degree to which Villaver sought to comply with the request for admissions, and whether his request for an interpreter warranted a continuance of the hearing on the motion for summary judgment and withdrawal of his admissions.

Because neither Villaver nor an attorney representing him complied with the answer or objection requirements of HRCP Rule 36(a) within thirty days of service of the request, the statements in the request were properly deemed admitted; we therefore consider Villaver's contention that the circuit court erred by failing to consider his request for an interpreter as a motion to withdraw his admissions pursuant to HRCP Rule 36(b). HRCP Rule 36(b) provides that the court may allow any matter admitted under HRCP Rule 36(a) to be withdrawn upon an appropriate motion: "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission."

Villaver's oral request for an interpreter to help him answer the admissions was not a formal motion to withdraw admissions. But his failure to observe formalities did not preclude the court from permitting him to withdraw his admissions, as Hawai'i courts have considered untimely responses to a request for admissions as constituting an informal motion to withdraw admissions. One such example is In re Trade Wind Tours of Hawaii, Inc., wherein the ICA addressed the director of taxation's untimely filing of answers to a request for admissions. 6 Haw. App. 260, 264, 718 P.2d 1122, 1125 (1986). The ICA held that the tax appeal court "did not abuse its discretion in deeming the Director's admissions to have been withdrawn upon the filing of the answers." Id. at 264, 718 P.2d at 1126. Similarly, in Shipman, the ICA held that late responses to a request for admissions could be considered a request for withdrawal of the admissions. 8 Haw. App. at 366, 802 P.2d at 1209. In that case, the circuit court entered an order deeming admitted the statements in the request for admissions served by Shipman on Hawaiian Holiday because Hawaiian Holiday had not responded before the HRCP Rule 36(a) thirty-day deadline. Id. at 365, 802 P.2d at 1209. The court subsequently denied Hawaiian Holiday's motion to amend an order to compel discovery which provided that all matters covered by the request for admissions were deemed admitted. Id. at 358-59, 802 P.2d at 1206. The ICA held that Hawaiian Holiday's motion to amend the order deeming the matters in the request admitted, made after late service of its response to the request, was "impliedly a motion to withdraw the Rule 36(a) automatic admissions." Id. at 366, 802 P.2d at 1209. The ICA held that "the allowance of a late filing of a response to a request for admissions by the court 'is the equivalent of allowing a party to withdraw admissions made by operation of Rule 36(a).' " Id. (quoting Trade Wind Tours, 6 Haw. App. at 264, 718 P.2d at 1126 ); see also Bergemann v. United States, 820 F.2d 1117, 1121 (10th Cir. 1987) (finding that "both the response to [the plaintiff's] motion for summary judgment and the recorded pre-trial hearings in this case were, in essence, motions to withdraw the admissions"); Warren v. Int'l Bhd. of Teamsters, Chauffeurs, Warehousemen & Helpers of Am., 544 F.2d 334, 339 (8th Cir. 1976) ("To allow a late filing of answers to a request for admissions is the equivalent of allowing a party to withdraw admissions made by operation of Rule 36(a)." (internal parentheticals omitted) (quoting Pleasant Hill Bank v. United States, 60 F.R.D. 1, 3 (W.D. Mo. 1973) )).

In the present case, when Villaver made his request for an interpreter, the circumstances constituted a request to the court for permission to withdraw his admissions and file a late response to the request for admissions. His wife had indicated that he needed a lawyer to help him complete the paperwork sent to him by Respondents. Villaver requested the interpreter for the purpose of filing his response to the request for admissions: "So if I -- if -- if I need -- if you can give me one interpreter, that would help me for answer that question." The circuit court recognized that Villaver's purpose in asking for an interpreter was in part to file a late response to the request for admissions, stating "I'm inclined at this point to ... deny ... [Villaver's] request for an interpreter to assist him with the written documents that he's received from the other side." The request to file a late response to a request for admission was the equivalent of a request to withdraw admissions. See Trade Wind Tours, 6 Haw. App. at 264, 718 P.2d at 1126.

Villaver's status as a pro se litigant supports construing his request for an interpreter as a request to withdraw his admissions and file a late response. In the context of pro se pleadings, we have explained that "[a] fundamental tenet of Hawai'i law is that '[p]leadings prepared by pro se litigants should be interpreted liberally[,]' " and that "[t]he underpinnings of this tenet rest on the promotion of equal access to justice[.]" Waltrip, 140 Hawai'i at 239, 398 P.3d at 828 (quoting Dupree v. Hiraga, 121 Hawai'i 297, 314, 219 P.3d 1084, 1101 (2009) ). In Waltrip, we favorably noted that "[f]ederal courts have extended this 'liberality doctrine' to include pro se motions in certain scenarios[,]" and held that liberal construction of motions was appropriate in workers' compensation cases, as they typically provide "the only recovery available for an employee who is injured at work[.]" Id. Similarly, Villaver's pro se request for an interpreter at the hearing should have been interpreted liberally as a request to withdraw his admissions and file a late response, particularly since a more restrictive interpretation would have extinguished his only opportunity to recover on his negligence claim.

B. The Circuit Court Abused Its Discretion by Failing to Apply the Two Factors of Rule 36(b) to Villaver's Informal Motion to Withdraw Admissions and File a Late Response.

To determine whether to permit Villaver to withdraw his admissions, the circuit court was required to consider the two factors enumerated in HRCP Rule 36(b) : "(1) whether 'the presentation of the merits will be subserved' if the withdrawal of the admission is permitted and (2) whether the party who obtained the admission can 'satisfy the court that withdrawal ... will prejudice him in maintaining his action or defense on the merits.' " Shipman, 8 Haw. App. at 367, 802 P.2d at 1209-10 (quoting HRCP Rule 36(b) ). When both factors are met-that is, when withdrawal would promote presentation of the merits but would not prejudice the party that obtained the admissions-the court may permit withdrawal.

The circuit court in the present case did not consider either of the two HRCP Rule 36(b) factors. With respect to the first factor, the court was required to consider whether "upholding the admissions would practically eliminate any presentation of the merits of the case." Conlon v. United States, 474 F.3d 616, 622 (9th Cir. 2007) (quoting Hadley v. United States, 45 F.3d 1345, 1348 (9th Cir. 1995) ). Thus, the first factor weighed in favor of permitting Villaver to withdraw his admissions; otherwise, the admissions necessarily required the court to grant summary judgment and precluded a trial on the merits. Denial of the request to withdraw admissions did not subserve the presentation of the merits.

The circuit court also did not consider the second factor, whether withdrawal would prejudice the party that obtained the admission. Prejudice under HRCP Rule 36(b) does not contemplate the prejudice that the party who obtained the admissions will incur merely because the admissions are no longer deemed admitted; such a standard would render the withdrawal of admissions nearly impossible. Instead, prejudice in this context deals with the difficulty to the party who obtained the admissions from proving its case once the admissions are withdrawn:

The prejudice contemplated by the Rule is not simply that the party who initially obtained the admission will now have to convince the fact finder of its truth. Rather, it relates to the difficulty a party may face in proving its case, e.g., caused by the unavailability of key witnesses, because of the sudden need to obtain evidence with respect to the questions previously answered by the admissions.

Perez v. Miami-Dade Cty., 297 F.3d 1255, 1266 (11th Cir. 2002) (quoting Smith v. First Nat. Bank of Atlanta, 837 F.2d 1575, 1578 (11th Cir. 1988) ); see also Conlon, 474 F.3d at 624 ("[W]e are reluctant to conclude that a lack of discovery, without more, constitutes prejudice. The district court could have reopened the discovery period ... and prejudice must relate to the difficulty a party may face in proving its case at trial[.]"). Thus, the party that has obtained the admissions must show that withdrawal of the admissions will impact its ability to prove the facts previously admitted.

Here, the circuit court did not address, nor did it ask the parties to address, whether allowing Villaver's withdrawal would unfairly prejudice Respondents. Thus, Respondents, "the part[ies] who obtained the admissions[,] fail[ed] to satisfy the court that withdrawal or amendment [would] prejudice that party in maintaining his or her action or defense on the merits." HRCP Rule 36(b). The record does not indicate that Respondents would have suffered prejudice to their case if the admissions were permitted to be withdrawn; to the contrary, it indicates they had adequate opportunity to, and did, develop their case without the aid of the admissions, and that withdrawal of the admissions would not have created a need for new evidence otherwise addressed by the admissions. Respondents were clearly on notice throughout the case regarding Villaver's allegations of negligence and the damages he claimed to have suffered. Those allegations were addressed in the CAAP process. Respondents conducted over a year and a half of discovery well before the statements in the request for admissions were deemed admitted.

The circumstances of this case exemplify a disfavored use of HRCP Rule 36, one in which proponents submit a request for admissions "with the wild-eyed hope that the other side will fail to answer and therefore admit essential elements" of his case. Perez, 297 F.3d at 1268 ; see also Bergemann, 820 F.2d at 1121 ; cf. Cty. of Hawai'i v. Ala Loop Homeowners, 123 Hawai'i 391, 423, 235 P.3d 1103, 1135 (2010) ("Defaults are generally disfavored."), abrogated on other grounds by Tax Found. of Hawai'i v. State, 144 Hawai'i 175, 439 P.3d 127 (2019). The circuit court should have considered Villaver's informal motion to withdraw his admissions under the two factors of HRCP Rule 36(b) relating to presentation of the merits and prejudice to the non-admitting party, both of which favored withdrawal. In failing to grant the motion, the court abused its discretion.

IV. CONCLUSION

Villaver's pro se request to obtain an interpreter before the court entered summary judgment against him should have been considered a motion to withdraw his admissions and continue the hearing on the motion for summary judgment. The court's discretion in ruling on the motion to withdraw admissions under HRCP Rule 36(b) was bound by the requirement that it consider whether the merits of the case would be served by withdrawal and whether the party obtaining the admissions would be prejudiced by the withdrawal. It was an abuse of discretion to deny withdrawal of Villaver's admissions. Absent the admissions, the record contains genuine issues of material fact that preclude summary judgment against Villaver.

For the foregoing reasons, we vacate the ICA's November 22, 2017 judgment on appeal and the circuit court's June 26, 2014 order granting summary judgment and July 28, 2014 judgment and remand the case to the Circuit Court of the First Circuit for further proceedings consistent with this opinion.

      Other requests for admissions related not only to authentication of documents and photographs, the extent of damages to Villaver's vehicle, and circumstances of the accident, but also to medical examinations, treatment, diagnosis, and opinions which were clearly beyond Villaver's expertise.

      The Honorable Jeannette H. Castagnetti presided.

      Respondents served Villaver with the request for admissions on March 17, 2014. Villaver's wife sent her letter on April 11, 2014, and it was received by defense counsel on April 15, 2014. The thirty day response deadline expired on April 16, 2014.

      The court did emphasize that it would not postpone the trial further, particularly given that Villaver knew about the trial deadlines. However, the court did not consider how the expiration of the trial deadlines in conjunction with allowing Villaver to file a late response would prejudice Respondents.

      The record indicates that by April 2014, Respondents had identified at least thirty-five lay witnesses and eighteen expert witnesses they intended to call to testify at trial, and had served subpoenas duces tecum to State Farm Insurance Companies, Workstar Injury Recovery Center, and Claudette H. Ozoa, Ph.D. The request for admissions itself indicates that Respondents had developed various theories under which they would avoid liability to Villaver.


text:
    In the Matter of BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, INC., Respondent/Respondent/Appellant/Appellee/Cross-Appellee, v. Scott MURAKAMI, in his official capacity as the Director, Department of Labor and Industrial Relations, State of Hawai'i; Department of Labor and Industrial Relations, State of Hawai'i, Respondents/Appellees/Appellees/Cross-Appellants, and Tammy L. Josue, Petitioner/Complainant/ Appellee/Appellant/Cross-Appellee.
    SCWC-14-0001135
    Supreme Court of Hawai'i.
    JUNE 10, 2019
    Ronald Fujiwara, Honolulu, for petitioner
    Adam S. Rosenberg for respondents Scott Murakami, Director of Department of Labor and Industrial Relations, and Department of Labor and Industrial Relations
    Anna Elento-Sneed, Honolulu, for respondent BCI Coca-Cola Bottling Company
    Robert H. Thomas, Honolulu, Loren A. Seehase for amicus curiae National Federation of Independent Business Small Business legal Center
   RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

OPINION OF THE COURT BY POLLACK, J.

Hawai'i law protects workers who suffer injuries arising out of and in the course of their employment from being discharged, suspended, or discriminated against on the sole basis of their work injuries. In this case, an employer hired a permanent replacement for an employee who was taking a leave of absence due to such an injury. The employer thus declined to reinstate the employee to her pre-injury position upon her return, instead offering her only positions that were downgrades from her previous work or that she was unqualified to perform. The employer contends that this was not discrimination based solely on the employee's work injury because it was motivated by the company's business needs.

We now hold that, in order for business necessity to constitute a valid defense to a claim of work injury discrimination, an employer must demonstrate that the employee's absence caused a business impairment that could not be reasonably alleviated by means that would not result in discrimination. Because no such showing was made in this case, we affirm the decision of the Director of the Hawai'i Department of Labor and Industrial Relations that the work injury discrimination in this case contravened our law. We accordingly vacate the Circuit Court of the First Circuit's judgment and the Intermediate Court of Appeals' Judgment on Appeal and remand the case to the Hawai'i Department of Labor and Industrial Relations for any further proceedings as may be appropriate.

I. FACTS AND PROCEDURAL HISTORY

A. Agency Proceedings

1. Hearing Officer

On September 15, 2010, Tammy L. Josue filed a complaint with the Wage Standards Division of the Hawai'i Department of Labor and Industrial Relations (Department) alleging that BCI Coca-Cola Bottling Company (Coca-Cola) discriminated against her on the basis of her work injury in violation of Hawai'i Revised Statutes (HRS) § 378-32(2) (1993). Coca-Cola responded on October 7, 2010, denying the allegations and arguing that Josue's claim was untimely.

An administrative hearing on the complaint commenced on February 7, 2011. Josue testified that she began working at Coca-Cola in 2000 as a full-service driver and later received a promotion to full-service supervisor. On May 29, 2009, Josue stated, she suffered an injury during the course of her employment. Josue explained that she was unable to work as a result of this injury and was placed on a leave of absence in accordance with Coca-Cola's disability leave policy. Josue testified that she attempted to resume her employment on September 1, 2010, the day after her doctor authorized her to return to work with no restrictions, but she was informed that Coca-Cola had hired an employee to permanently fill her position. Coca-Cola thereafter offered Josue several other positions with the company, but Josue testified that these offers were rejected because she either could not meet the physical requirements of the positions due to a prior shoulder injury, the positions required experience or certifications that she did not possess, or the positions were downgrades from her pre-injury employment.

Coca-Cola called two witnesses: a human resources manager and Josue's supervisor. The human resources manager testified that, during Josue's absence, she received a request from Josue's supervisor that the position be filled. The manager stated that, after Josue's position had been vacant for ten months, Coca-Cola hired a permanent replacement in April 2010. The vacancy had been creating a hardship, the manager explained, because two other supervisors were covering Josue's job duties in addition to performing their own. Josue's supervisor added that the two individuals providing coverage were required to adjust their schedules by arriving to work two hours prior to the time that they typically arrived.

When asked by the hearing officer about the internal process behind hiring a permanent replacement to fill Josue's position, the manager refused to answer because she said that the process was "confidential" and "privileged." The manager stated, however, that the company did not have any information regarding whether Josue was capable or incapable of returning to work when it hired Josue's replacement. The manager testified that Coca-Cola's disability leave policy, which allowed an employee to take a twelve-month leave of absence after a work injury, does not state that the injured employee's job will remain open for those 12 months, but rather merely provides that the employee's benefits end after twelve months.

In her post-hearing brief, Josue argued that Coca-Cola violated HRS § 378-32(2) by failing to return her to the position she had previously held when she was capable of returning to work after suffering a workplace injury. This amounted to unlawful discrimination based solely on an injury that arose from her employment, she contended, and any argument that the company filled the position for business reasons was pretextual. In response, Coca-Cola asserted that its failure to reinstate Josue to her former position had nothing to do with her work injury, but rather was the result of the company filling the position more than four months prior to when Josue was medically released to return to work. Additionally, Coca-Cola argued, nothing in the language or legislative history of HRS § 378-32(2) required it to keep Josue's position vacant indefinitely or return her to her same position after she was medically cleared to work.

On August 1, 2011, the hearing officer issued a Recommended Decision stating that Coca-Cola's failure to return Josue to her position was contrary to the purpose of HRS § 378-32(2). The hearing officer determined that the statute did not require Coca-Cola to keep Josue's position open indefinitely, but it did make it unlawful "for an employer to discriminate against an employee in conditions or terms of employment when the employee has been released to return to work full duty, no restrictions to the position occupied at the time of the work injury." Because Coca-Cola knew or should have known that Josue would one day be able to return to work without restrictions, the hearing officer concluded, the company should have filled her position with a temporary replacement that was subject to her right to return. Thus, the hearing officer determined that Coca-Cola discriminated against Josue solely because of a compensable work injury in violation of HRS § 378-32(2) and recommended that Josue be returned to the position that she held before suffering her injury.

2. Director

Coca-Cola appealed the Recommended Decision to the Director of the Hawai'i Department of Labor and Industrial Relations (the Director). Coca-Cola again argued that the plain language of HRS § 378-32(2) did not prevent it from hiring a replacement nor did it require the company to return Josue to her pre-work related injury position. Specifically, Coca-Cola argued that the "[s]olely because" language in the statute meant that the work injury must be the only reason for the employment action, and here the reason for not reinstating Josue was that a replacement was hired due to the business hardship inherent in requiring other employees to perform the duties of the position while Josue was absent. (Citing Fergerstrom v. Datapoint Corp., 680 F. Supp. 1456, 1459 (D. Haw. 1988).) Thus, Coca-Cola concluded, the Recommended Decision was clearly erroneous because the company's failure to return Josue to her prior position was motivated by legitimate, business concerns.

The Director, in his Decision and Order, noted that when the legislature added the term "discriminate" to HRS § 378-32(2) in 1981, it made unlawful the practice of reassigning an employee to a position with other duties at a lower rate of pay after the injured employee returned to work. (Citing S. Stand. Comm. Rep. No. 782, in 1981 Senate Journal, at 1249.) Here, the Director stated, Josue was not returned to her pre-injury position, but instead was offered other positions that were either downgrades or positions for which Josue did not meet the requirements. The Director agreed with the hearing officer that although Coca-Cola should not be required to hold Josue's position open indefinitely, it could have satisfied its business concerns by filling the position with a temporary employee. By instead hiring a permanent employee to fill Josue's position, the Director determined, Coca-Cola became unable to return Josue to her pre-injury position "solely because she suffered a work injury in violation of section 378-32." The Director's Decision and Order thus adopted the hearing officer's Recommended Decision that Coca-Cola discriminated against Josue solely because of her work injury when it failed to return her to the position that she held at the time of her injury.

B. Circuit Court Proceedings

Coca-Cola appealed the Director's Decision and Order to the Circuit Court of the First Circuit (circuit court) and argued that it was improper for the Director to rely on legislative history because the language of the statute was unambiguous. But even if reliance on the legislative history was proper, Coca-Cola asserted, it did not support the conclusion that refusing to terminate a replacement employee to open the injured employee's position is discrimination. In response, Josue contended that the purpose of the statute is to protect employees from retaliatory discharge, and therefore the Director's decision comported with the text and purpose of the statute. (Citing Puchert v. Agsalud, 67 Haw. 25, 35, 677 P.2d 449, 457 (1984).) The Department also responded to Coca-Cola, arguing that the Director did not err in concluding that Coca-Cola discriminated against Josue because the company's hiring of a permanent replacement was not an independent, nondiscriminatory, and lawful reason for its refusal to return Josue to her pre-injury position.

The circuit court determined that there was no dispute that Josue was discriminated against. The court found, however, that the discrimination "was not because of a work-related injury, but it was because the position had been filled." In addition, the court stated that "to only look at the [legislative history] without looking at any references as to what constitutes discrimination is ... untenable." The court therefore concluded that Coca-Cola did not violate HRS § 378-32(2). Accordingly, the court reversed the Director's decision.

C. ICA Proceedings

Josue and the Department each appealed the circuit court decision to the Intermediate Court of Appeals (ICA). Josue argued that Coca-Cola's interpretation of the "[s]olely because" clause was incorrect because it could have satisfied its operational concerns by filling the position with a replacement that was subject to Josue's right to return. Similarly, the Department argued that although Coca-Cola cited operational hardship as the reason for filling Josue's position, it produced no evidence as to why it could not temporarily, rather than permanently, have filled Josue's position. Coca-Cola responded that it did not discriminate "[s]olely because" of Josue's work injury because it filled Josue's position due to "operation concerns" and therefore the circuit court did not err. (Quoting Fergerstrom, 680 F. Supp. at 1458.)

In a memorandum opinion, the ICA affirmed the circuit court's decision that Coca-Cola's actions did not violate HRS § 378-32(2). Although the court determined that Coca-Cola discriminated against Josue, the ICA stated that the term "[s]olely" was unambiguous and that a violation of HRS § 378-32(2) clearly requires that the work injury be the sole cause of the adverse employment action to run afoul of the statute. The ICA held that the Director's conclusion that Coca-Cola discriminated against Josue "[s]olely because" of her work injury was clearly erroneous because Josue's absence was creating a hardship for the company by requiring two other supervisors to work extra hours to perform Josue's job duties. The ICA thus concluded that "business necessity was also a reason for [Coca-Cola's] actions and there was no indication that the justification was pretextual."

II. STANDARD OF REVIEW

We review findings of facts and mixed questions of law and fact under the "clearly erroneous" standard and we review conclusions of law de novo "to determine if the agency's decision was in violation of constitutional or statutory provisions, in excess of statutory authority or jurisdiction of agency, or affected by other error of law." In re Water Use Permit Applications, 94 Hawai'i 97, 119, 9 P.3d 409, 431 (2000) (quoting Curtis v. Bd. of Appeals, 90 Hawai'i 384, 392-93, 978 P.2d 822, 830-31 (1999) ); Price v. Zoning Bd. of City & Cty. of Honolulu, 77 Hawai'i 168, 172, 883 P.2d 629, 633 (1994). A finding of fact is clearly erroneous when "(1) the record lacks substantial evidence to support the finding or determination, or (2) despite substantial evidence to support the finding or determination, the appellate court is left with the definite and firm conviction that a mistake has been made." In re Water Use Permit Applications, 94 Hawai'i at 119, 9 P.3d at 431.

III. DISCUSSION

A. Coca-Cola Discriminated Against Josue

Under HRS § 378-32(2), it is unlawful for an employer "to suspend, discharge, or discriminate against any of the employer's employees ... [s]olely because the employee has suffered a work injury which arose out of and in the course of the employee's employment with the employer." Unlike the terms "suspend" and "discharge," which denote specific employment-related actions, it is unclear on the face of the statute what type of employer action constitutes discrimination in this context. The term "discrimination" is not included in the applicable definitions provided in HRS § 378-31 (1993), and the Department has not issued any regulations providing guidance on how to interpret the term. Because the term "discriminate" is not defined and because the statute is not clear as to what form of employer action amounts to discrimination on the basis of a work injury, an ambiguity exists regarding the meaning of the term. When such ambiguity exists, "the meaning of the ambiguous word[ ] may be sought by ... resort[ing] to extrinsic aides in determining legislative intent" such as the legislative history of the statute. Gillan v. Gov't Emps. Ins. Co., 119 Hawai'i 109, 124-25, 194 P.3d 1071, 1086-87 (2008) (quoting State v. Toyomura, 80 Hawai'i 8, 19, 904 P.2d 893, 904 (1995) ).

Prior to 1981, HRS § 378-32(2) did not contain the term "discriminate," but instead provided that "[i]t shall be unlawful for any employer to suspend or discharge any of his employees ... [s]olely because the employee suffered a work injury." 1970 Haw. Sess.

Laws Act 64, § 2 at 121. In 1981, the legislature amended the statute by adding discrimination to types of conduct that are prohibited when undertaken solely because of an employee's injury. See 1981 Haw. Sess. Laws Act 10, § 1 at 29. The purpose of this amendment was explained in both a House and Senate Standing Committee report as follows:

The purpose of this bill is to specify discrimination as an unlawful employment practice and to specifically allow the Department of Labor and Industrial Relations to order reinstatement to the prior position of an employee discharged in violation of section 378-32, Hawaii Revised Statutes.
Current law prohibits suspension or discharge of an employee who has suffered from a work injury or has filed for bankruptcy or because the employer was summoned as a garnishee. However, an employee can be downgraded, reassigned to other duties at a lower rate of pay, or otherwise be discriminated against in conditions or terms of employment under the above circumstances without violating the law. This bill provides further protection to the employee in such cases by making such discrimination unlawful.

S. Stand. Comm. Rep. No. 782, in 1981 Senate Journal, at 1249 (emphasis added); accord H. Stand. Comm. Rep. No. 580, in 1981 House Journal, at 1179. These committee reports demonstrate that the addition of discrimination as an unlawful act sought to address a loophole in the statute that allowed an employer to "downgrade" or "reassign[ ]" an employee "to other duties at a lower rate of pay" after the employee "has suffered from a work injury." Thus, the legislative history indicates that the intent of the statute is to protect employees that have suffered work injuries from adverse employment action by preserving the employee's position until the employee is able to return to work or by placing the employee in a comparable position upon the employee's return.

It is undisputed that Josue suffered a work injury and was placed on a leave of absence pursuant to Coca-Cola's disability leave policy. It is also uncontroverted that Coca-Cola did not reinstate Josue to a position equivalent to or better than her pre-injury position upon her return to work after the injury, but instead the company offered her only positions that she either could not perform or that amounted to downgrades from her prior employment. Such a decision is the precise kind of adverse employment action that prompted the legislature to specifically add the term "discriminate" to HRS § 378-32(2) to prohibit. See S. Stand. Comm. Rep. No.

782, in 1981 Senate Journal, at 1249; H. Stand. Comm. Rep. No. 580, in 1981 House Journal, at 1179. Thus, Coca-Cola's actions in this case constituted discrimination under HRS § 378-32(2), and this case instead turns on whether the discrimination was undertaken "[s]olely" on the basis of Josue's work injury.

B. In the Absence of True Business Necessity, Discrimination for Business Reasons is Discrimination "Solely Because" of a Work Injury

Determining that Coca-Cola discriminated against Josue does not end the inquiry of whether the company violated HRS § 378-32(2) because the statute only prohibits discrimination when it is done "[s]olely because the employee has suffered a work injury." That is, an employer does not violate the statute if it discriminates against an employee for a legitimate reason other than the employee's work injury. However, HRS § 378-32(2), like other statutes prohibiting discrimination, "proscribes not only overt discrimination but also practices that are fair in form, but discriminatory in operation." Adams v. CDM Media USA, Inc., 135 Hawai'i 1, 26 n.29, 346 P.3d 70, 95 n.29 (2015) (quoting Griggs v. Duke Power Co., 401 U.S. 424, 431, 91 S.Ct. 849, 28 L.Ed.2d 158 (1971) ) (analogizing discrimination under HRS § 378-2, which prohibits discrimination on the basis of race, sex, and other protected characteristics, to discrimination under Title VII of the Civil Rights Act of (1965)).

In Adams, we explained that if an employer's discriminatory action "cannot be shown to be related to" a legitimate reason such as "job performance, the practice is prohibited." Id. (emphasis omitted). Accordingly, "[a] 'legitimate' reason must be one that is justifiable in view of the purpose of the [statute.]" Id. at 15, 346 P.3d at 84 (quoting Hill v. Miss. State Emp't Serv., 918 F.2d 1233, 1243-44 (5th Cir. 1990) (Rubin, J., dissenting) (second alteration in original)).

HRS § 378-32(2) was enacted specifically to protect a vulnerable subset of employees-those who suffer work injuries-by ensuring that they are restored to their position or placed in a commensurate position when they return from a work-related injury. S. Stand. Comm. Rep. No. 782, in 1981 Senate Journal, at 1249; H. Stand. Comm. Rep. No. 580, in 1981 House Journal, at 1179.

Indeed, this court has explained that "the legislative intent of HRS § 378-32(2) is to protect [employees]," Puchert v. Agsalud, 67 Haw. 25, 36, 677 P.2d 449, 457 (1984), from discharge, suspension, and discrimination in relation to the employee's compensable work injury. Takaki v. Allied Machinery Corp., 87 Hawai'i 57, 64, 951 P.2d 507, 514 (App. 1998) ; see also Hummel v. Kamehameha Schs./Bernice Pauahi Bishop Estate, 749 F. Supp. 1023, 1027 (D. Haw. 1990) ("The purpose of HRS § 378-32(2) is to protect [employees.]").

In light of this purpose, for an employer to demonstrate a "legitimate reason" for a discriminatory employment action that was allegedly based on the needs of the business, an employer must first adduce evidence that, at the time the position was filled, the vacancy at issue impaired the employer's business operations. Adams, 135 Hawai'i at 26 n.29, 346 P.3d at 95 n.29 (explaining that when evaluating whether a discriminatory employment action is related to a legitimate reason, "[t]he touchstone is business necessity."); see also Frank's Shoe Store v. W. Va. Human Rights Comm'n, 179 W.Va. 53, 365 S.E.2d 251, 258 n.3 (1986) (rejecting an employer's contention that its action of downgrading an employee because she became pregnant was "necessary for efficient operations of the business" because there was no "impair[ment of] business operations"). This burden falls on the employer because, as a practical matter, only the employer would possess all the information necessary to demonstrate a business impairment. See Frank v. Am. Freight Sys., Inc., 398 N.W.2d 797, 802 (Iowa 1987) ("[T]he burden of showing a business necessity for the discrimination is upon the [ ] employer.").

Additionally, to demonstrate a legitimate reason for the adverse employment action, the employer must produce evidence that the proffered justification for the action was the only reasonable means by which to remedy the employer's business impairment. See Smith v. City of Jackson, 544 U.S. 228, 243, 125 S.Ct. 1536, 161 L.Ed.2d 410 (2005) (noting that the "business necessity" test requires a showing that "there are [no] other ways for the employer to achieve its goals that do not result in" discrimination). When reasonable alternative methods of relieving the business impairment exist that do not involve taking adverse employment action against the injured employee, HRS § 378-32(2) obliges an employer to use one of these means rather than discriminating. Otherwise, an employee would be subject to a demotion or other adverse employment action despite the employee's value to the business-as shown by the business impairment caused by the employee's absence-solely because the employee had the misfortune of becoming injured as a result of the job. Such an outcome would provide no real protection to employees and would contravene the purpose of the statute. Accordingly, an employer must prove that there were no feasible alternatives to the discriminatory employment action.

Identifying a business impairment and determining whether it could have been alleviated through the use of a feasible alternative is a fact-bound inquiry that will vary based on the circumstances of the case. For example, a necessary consideration will often be the employer's knowledge of the anticipated length of the injured employee's absence. When an employer who is suffering a business impairment from an employee's absence knows that the employee will return from injury-related leave in a matter of weeks or months, then filling the position with a temporary employee or having another employee cover the absent employee's duties may be a suitable alternative to filling it with a permanent employee. On the other hand, if an employer learns that the employee will be absent indefinitely or for an extended duration, then preserving the injured employee's right to return to the employee's position or another position that is not a downgrade may not be feasible given the difficulties of covering the absent employee's duties for a prolonged or indefinite period. Thus, the employer's knowledge of the anticipated length of an employee's absence is often critical in the employer's evaluation of reasonable alternatives. Specific alternatives, depending on the circumstances, may include filling the vacant position with a temporary employee, having another employee or employees cover the duties of the position, or holding open an equivalent or better position that does not create a business impairment. If any of these or another nondiscriminatory alternative is feasible, then the employer is required to utilize it rather than discriminating against the injured employee.

In sum, an employer's alleged discriminatory employment action must be related to a legitimate reason for the adverse action, which the employer has the burden to prove. An employer may demonstrate that its discriminatory employment action did not violate HRS § 378-32(2) by presenting evidence to show that the vacancy caused operational impairment to the business that justified filling the position at the time that it was filled and that there was no feasible alternative to the adverse employment action that would have rectified the impairment.

C. The Director's Decision Was Not Clearly Erroneous

As stated, we review findings of facts of an agency under the "clearly erroneous" standard. In re Water Use Permit Applications, 94 Hawai'i 97, 119, 9 P.3d 409, 431 (2000). Thus, we will uphold the Director's findings of fact in the case unless "the record lacks substantial evidence to support the finding or determination" or we are otherwise "left with the definite and firm conviction that a mistake has been made." Id.

Here, the Director found that, after Josue suffered a work-related injury and while she was on an approved leave of absence, Coca-Cola filled her position without knowing whether Josue would be able to return to work. And when Josue did return to work without any restrictions, the company refused to reinstate her to her pre-injury position or an equivalent or better job that she could actually perform. Based on these facts, the Director concluded that Coca-Cola discriminated against Josue. Additionally, the Director concluded that Coca-Cola could have satisfied its business concerns and the requirements of HRS § 378-32(2) by filling the position with a temporary replacement that was subject to Josue's right to return to her position.

To demonstrate that it did not discriminate "[s]olely because" of Josue's work injury, Coca-Cola first needed to present evidence that Josue's vacancy caused a business impairment. A human resource manager for Coca-Cola testified that Josue's absence was creating a hardship for her department because other supervisors were being required to come to work two hours early to perform Josue's work duties in addition to their own.

Yet there is no clear evidence in the record that the other supervisors did not wish to perform this work for additional compensation, that providing additional pay to the other supervisors posed a financial burden to the business, or that the arrangement was otherwise impairing Coca-Cola's business operations. The evidence is thus unclear as to whether business operations were being adversely affected by Josue's absence.

In any event, it is ultimately unnecessary for this court to decide whether Coca-Cola successfully established that Josue's absence was causing a business impairment in light of the Director's finding that feasible alternatives existed to Coca-Cola's hiring of a permanent replacement. As explained, to prove that it had a legitimate reason for its discrimination, Coca-Cola was required to demonstrate not only that Josue's absence resulted in a business impairment, but also that there were no feasible alternatives to remedy the impairment that would not preclude Josue's return to her position or its equivalent. Accordingly, Coca-Cola was required to prove that there were no feasible alternatives to hiring a permanent replacement that resulted in the denial of Josue's reinstatement. When the hearing officer asked what the company's process was to fill Josue's position, the manager responded that information about the decision-making process was privileged and confidential. Coca-Cola did not present any evidence as to why a temporary replacement or other alternative would not have sufficiently addressed Coca-Cola's business concerns.

Indeed, the lack of evidence of the company's consideration of feasible alternatives is underscored by the fact that the company did not contact Josue until after it had filled her position with a permanent replacement. Coca-Cola had no indication of whether Josue would be able to work without restrictions and, if so, the anticipated time frame when this would occur. Under the circumstances, Coca-Cola could not have evaluated the feasibility of alternatives without this information.

Coca-Cola had the burden to prove that there was no feasible alternative to hiring a permanent replacement for Josue. However, the record lacks any evidence that a temporary employee would not have been able to fulfill Josue's duties during her leave of absence due to her work-related injury-nor even that Coca-Cola considered the possibility. The Director concluded that in light of the evidentiary record, a temporary employee could have addressed Coca-Cola's business concerns, and the company was thus not justified in discriminating against Josue in the manner it did. There was substantial evidence in the record to support the conclusion that Coca-Cola failed to meet its burden to prove that there were no feasible alternatives to refusing to reinstate Josue to a position at least equivalent to the one she left because of her work injury. Thus, the Director's findings were not clearly erroneous, and its conclusions of law were correct. The Director's decision should have been affirmed, and it was error for the ICA to hold otherwise.

IV. CONCLUSION

Based on the foregoing, we vacate the ICA's Judgment on Appeal, vacate the circuit court's judgment, affirm the Director's Decision and Order, and remand the case to the Director for any appropriate proceedings consistent with this opinion.

      HRS § 378-32(2) (1993), which has since been recodified as HRS § 378-32(a)(2), provided in relevant part as follows:
      It shall be unlawful for any employer to suspend, discharge, or discriminate against any of the employer's employees:
      ...
      (2) Solely because the employee has suffered a work injury which arose out of and in the course of the employee's employment with the employer and which is compensable under chapter 386 unless the employee is no longer capable of performing the employee's work as a result of the work injury and the employer has no other available work which the employee is capable of performing. Any employee who is discharged because of the work injury shall be given first preference of reemployment by the employer in any position which the employee is capable of performing and which becomes available after the discharge and during the period thereafter until the employee secures new employment.
      In the interest of clarity, this opinion will refer to the statute as HRS § 378-32(2), which is the codification applicable to the alleged discrimination in this case.

      Josue's supervisor testified that he did not submit a request to fill Josue's position.

      The replacement was a former employee who held Josue's position immediately prior to Josue.

      The Honorable Rhonda A. Nishimura presided.

      The ICA's memorandum opinion may be found at BCI Coca-Cola Bottling Company of Los Angeles v. Hoshijo, No.CAAP-0001135, 143 Hawai'i 235, 2018 WL 4659561 (Haw. App. Sept. 28, 2018).

      According to Black's Law Dictionary, "discrimination" generally means "a failure to treat all persons equally when no reasonable distinction can be found between those favored and those not favored." Black's Law Dictionary 566 (10th ed. 2014).

      Chapter 378 addresses discriminatory employment practices generally and provides enumerated examples of other forms of discrimination. For example, HRS § 378-2 (1993 & Supp. 1995) provides that various employment decisions amount to unlawful discriminatory acts when made on the basis of race, sex, religion, or other protected characteristic, including "to refuse to hire or employ or to bar or discharge from employment"; "to fail or refuse to refer to employment"; and "to exclude or otherwise deny equal jobs or benefits to a qualified individual." HRS §§ 378-2(1)(A), 378-2(1)(B), 378-2(6). The chapter does not contain a similar detailed enumeration of employment actions that constitute discrimination on the basis of work injury.

      This provision was originally codified in the worker's compensation statute, but in 1970 the legislature moved the provision into the title of the HRS relating to the Department of Labor and Industrial Relations. H. Stand. Comm. Rep. No. 253-70, in 1970 House Journal, at 859. The statute was moved because the legislature recognized that it was "inappropriately part of the Workmen's Compensation Law" which was "neither concerned with nor staffed to carry on an enforcement program, while the [Department of Labor and Industrial Relations] is structured so as to implement the policy and purpose of the law." Id.

      The briefing before the ICA and the ICA's Memorandum Opinion addressed the issue of whether Josue's complaint was timely, which turned on when the alleged discrimination occurred. Although the issue of timeliness is not directly raised before us, we must nonetheless decide what action actually constituted discrimination under HRS § 378-32(2) to resolve this case. The discrimination necessarily occurred on the day that Josue returned-and not when the company hired a permanent replacement-because that is when the employment action adversely affected Josue. Indeed, had Coca-Cola discharged the employee that was hired to replace Josue or offered Josue a position that was at least equivalent to her pre-injury position when she returned to work, no discrimination would have occurred.
      Further, HRS § 378-32(2) contained a limited exception that allows an employer to "suspend, discharge, or discriminate against" an employee "[s]olely because the employee has suffered a work injury" if "the employee is no longer capable of performing the employee's work as a result of the work injury and the employer has no other available work which the employee is capable of performing." If the discriminatory behavior prohibited by HRS § 378-32(2) was found to occur when an employer makes an adverse employment decision rather than when the decision adversely affects the employee, it would incentivize employers to make adverse employment decisions as quickly as possible after a work injury occurs. Under such a formulation, the employer would be able to bypass the protections afforded by the statute if the still-healing injury rendered the employee incapable of performing the employee's preinjury duties or those of an equivalent or better position at the time the adverse employment decision was made, regardless of whether the employee would eventually regain a full capacity for work. Thus, the employment action must be evaluated from the point at which the employee is denied reinstatement to an equivalent or better position upon returning to work in order to effectuate HRS § 378-32(2)'s purpose of protecting employees who are injured during the course of their work. In the present case, it is undisputed that Josue's doctor medically cleared her to work without restriction prior to the alleged discrimination.

      During oral argument, Coca-Cola contended that it did not discriminate against Josue under HRS § 378-32(2) because it was properly following the "reasonable accommodation" procedures mandated by the Americans with Disabilities Act (ADA). Oral Argument, BCI Coca-Cola Bottling Company of Los Angeles v. Murakami (SCWC-14-0001135) at 01:00:45-01:01:07, http://oaoa.hawaii.gov/jud/oa/19/SCOA_041019_SCWC-14-1135.mp3. This argument was raised before the Director and the circuit court but was not raised before the hearing officer, ICA, or before this court prior to oral argument. Even if this argument were properly before us, it is inapt here. Coca-Cola's requirements under federal law are wholly separate from its requirements under HRS § 378-32(2), and Coca-Cola's compliance with the ADA does not abdicate its legal duty to comply with HRS § 378-32(2). Nor does the ADA preempt HRS § 378-32(2) because the two statutes do not conflict. See Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 (1992). Under the regulations implementing the ADA, it is unlawful for an employer "not to make reasonable accommodation to the known physical or mental limitations of an otherwise qualified ... employee with a disability," and such an accommodation includes "[j]ob restructuring" and "reassignment to a vacant position." 29 C.F.R. §§ 1630.9(a), 1630.2(o)(2)(ii). An employer can fulfill its federal requirements while fulfilling its requirements under HRS § 378-32(2) because, as explained, the Hawai'i statute does not prohibit an employer from reassigning an employee to a position that is not a downgrade.

      "Legitimate" is defined by Black's Law Dictionary as "lawful" or "genuine." Black's Law Dictionary 1040 (10th ed. 2014).

      In its current form, HRS § 378-32 also protects employees from being suspended, discharged, discriminated against, and demoted in several other circumstances. The statute provides that an employee will not be penalized as a direct consequence of filing a petition against an employer for wages, testifying or being subpoenaed to testify in a discrimination proceeding, testing positive for the presence of drugs or alcohol in a "substance abuse on-site screening test," or using available sick leave. HRS § 378-32(a)(1)-(4), (b) (2015).

      As with demonstrating a business impairment, the employer is best situated to produce the business information necessary to justify its decision, and the burden of demonstrating a lack of reasonable alternatives must thus fall upon the employer. Placing the burden on the employee would not only be burdensome, but it would also likely involve extensive discovery that could lead to protracted and contentious litigation.

      Federal courts utilize similar principles under federal employment discrimination law. See Ricci v. DeStefano, 557 U.S. 557, 578, 129 S.Ct. 2658, 174 L.Ed.2d 490 (2009) (explaining that the business necessity defense under the Civil Rights Act of 1964 may be defeated by a showing of "a legitimate alternative that would have resulted in less discrimination"); Wards Cove Packing Co., Inc. v. Atonio, 490 U.S. 642, 658, 109 S.Ct. 2115, 104 L.Ed.2d 733 (1989), superseded by statute, Civil Rights Act of 1991, Pub. L. No. 102-166, 105 Stat. 1074, as recognized in Raytheon Co. v. Hernandez, 540 U.S. 44, 124 S.Ct. 513, 157 L.Ed.2d 357 (2003) (holding that proof of a legitimate business justification requires "first, a consideration of the justifications an employer offers for his use of [its] practices; and second, the availability of alternative practices to achieve the same business ends, with less [discriminatory] impact"); Clady v. L.A. Cty., 770 F.2d 1421, 1428 (9th Cir. 1985) ("[T]he [employment decision] does not constitute a business necessity [when] an alternative selection device exists which would have comparable business utility and less adverse impact."); Blake v. City of L.A., 595 F.2d 1367, 1383 (9th Cir. 1979) (holding that "[e]ven if an employer meets his burden of demonstrating business necessity, Title VII plaintiffs may prevail if" there are "alternative selection devices [ ] available that would serve the employer's legitimate interests without discriminatory effects").

      In enacting HRS § 378-32(2), the legislature recognized that small businesses may be more significantly affected by the absence of an injured employee. The legislature addressed this situation by providing that the subsection "shall not apply to an employer in whose employment there are less than three employees at the time of the work injury." HRS § 378-32(2).

      The ICA cited Fergerstrom v. Datapoint Corp., 680 F. Supp. 1456 (D. Haw. 1988), in support of its holding that Coca-Cola's decision was not "[s]olely because" of Josue's work injury. In Fergerstrom, an employee suffered a work injury and went on a leave of absence from work. Id. at 1457. Nine months later, while the employee was still on leave, the employer notified the employee that he had been "administratively terminated" because of the company's policy of terminating any employee who had been on a leave of absence for more than ninety days. Id. The district court held that the termination did not violate HRS § 378-32(2) because the employee was terminated "by operation of the Administrative Discharge Policy, not solely because of his injury." Id. at 1458.
      We disagree with the analysis applied by the Fergerstrom court. As explained, a discriminatory employment action must be related to a legitimate reason, which in this context is a business impairment. Adams, 135 Hawai'i at 26 n.29, 346 P.3d at 95 n.29 (quoting Griggs, 401 U.S. at 431, 91 S.Ct. 849 ). An employer's blanket administrative termination policy, whether of a duration of one day, ninety days, or a year, does not, on its own, demonstrate a business impairment. Instead, an employer must provide evidence, on a case-by-case basis, that the employee's absence caused a business impairment and that there were no feasible alternatives to the adverse employment action.

      During oral argument, the Department argued, for the first time, that Coca-Cola was required to keep Josue's position vacant until a medical determination about her ability to return to work was made under the worker's compensation statute. Oral Argument, BCI Coca-Cola Bottling Company of Los Angeles v. Murakami (SCWC-14-0001135) at 00:23:00-00:23:20, http://oaoa.hawaii.gov/jud/oa/19/SCOA_041019_SCWC-14-1135.mp3. Even if the argument was properly raised, however, it lacks merit because, as explained, an employer may fill the position with a permanent employee if the vacancy caused a business impairment and there were no feasible alternatives to utilizing a permanent replacement.


text:
    Mark H.K. GREER, Plaintiff-Appellee, v. Rosalyn H. BAKER, Defendant-Appellant, and State of Hawai'i, Defendant-Appellee, and Does 1-10, Defendants
    NO. CAAP-15-0000034
    Intermediate Court of Appeals of Hawai'i.
    FEBRUARY 21, 2019
    On the brief:
    James E. Halvorson, Maria C. Cook, Deputy Attorneys General, State of Hawai'i, for Defendant-Appellant.
   FUJISE, PRESIDING JUDGE, LEONARD, REIFURTH, JJ.

OPINION OF THE COURT BY LEONARD, J.

Plaintiff-Appellee Mark H.K. Greer (Greer) filed a tort action, in the Circuit Court of the First Circuit (Circuit Court), against Defendant-Appellant State of Hawai'i Senator Rosalyn H. Baker (Senator Baker ). Greer alleged that Senator Baker improperly used her position as Chair of the Senate Ways & Means Committee to eliminate his position as the (now former) Chief of the General Medical & Preventive Services Division at the Hawai'i State Department of Health (DOH ), due to his whistleblowing activities.

The issues before this court are whether Senator Baker is entitled to absolute legislative immunity for her allegedly tortious actions and, relatedly, whether the Circuit Court erred when it considered Senator Baker's alleged motive or intent when she proposed the budget legislation that abolished Greer's position. We hold that Senator Baker was entitled to absolute legislative immunity for actions taken in the exercise of her legislative functions, under article III, section 7, of the Hawai'i Constitution, and the Circuit Court erred in considering her alleged motivation for such actions. We vacate in part and remand.

I. BACKGROUND

On September 23, 2014, Greer filed a non-vehicle tort complaint against Senator Baker. The Complaint alleged that: (1) Senator Baker introduced a budget amendment to eliminate Greer's position in retaliation for his whistleblower activities regarding alleged Medicaid fraud; and (2) Senator Baker colluded with the head of DOH to have Baker fired. The Complaint included three claims for relief: (1) Count I, which alleged that Senator Baker violated the Hawai'i Whistleblower Protection Act, Hawaii Revised Statutes (HRS ) §§ 378-61 to 378-70 (2015) (HWPA ) ; (2) Count II, which alleged intentional infliction of emotional distress (IIED ); and (3) Count III, which alleged negligent infliction of emotional distress (NIED ).

Senator Baker filed a motion to dismiss the Complaint, primarily on the ground that she is immune from suit based on legislative immunity. Senator Baker also argued that the HWPA claim should be dismissed based on the applicable statute of limitations and because she was not Greer's employer. Senator Baker further argued that the IIED and NIED claims should be dismissed based on the applicable statute of limitations and the lack of an underlying cognizable claim.

After a November 26, 2014 hearing, on December 24, 2014, the Circuit Court entered an order granting in part and denying in part Senator Baker's motion to dismiss the complaint (Order re Dismissal) . In the Order re Dismissal, the Circuit Court granted Senator Baker's motion as to Counts I and III, and denied the motion as to Count II. As relevant to Senator Baker's motion, in the Order re Dismissal the Circuit Court: (1) rejected Senator Baker's claim of legislative immunity; (2) dismissed Count I against Senator Baker because she was not Greer's employer; and (3) dismissed Count III against Senator Baker, apparently because Greer failed to allege an underlying cognizable claim against Senator Baker.

Senator Baker then filed, inter alia, a notice of appeal from the Order re Dismissal. After this court initially dismissed the appeal for lack of appellate jurisdiction, the Hawai'i Supreme Court concluded that the Intermediate Court of Appeals (ICA) has jurisdiction to hear Senator Baker's appeal as an immediately appealable collateral order. Greer v. Baker, 137 Hawai'i 249, 258, 369 P.3d 832, 841 (2016) (Greer v. Baker II ). The supreme court held that "[t]he denial of Baker's absolute legislative immunity claim conclusively determined the disputed question, resolved an important issue separate from the merits of the action, and would be effectively unreviewable on appeal," and remanded the case to the ICA for a determination of Senator Baker's appeal on the merits. Id. at 251, 369 P.3d at 834 (citation omitted).

II. POINT OF ERROR ON APPEAL

Senator Baker raises a single point of error. In her Opening Brief, Senator Baker framed her point as follows: "The circuit court erred when it denied Senator Baker absolute legislative immunity considering Senator Baker's subjective intent in performing a quintessential legislative act in determining whether legislative immunity applies." In her Amended Opening Brief, which was filed after the supreme court's remand of this case to the ICA, Senator Baker restated her point of error as follows: "The circuit court erred when it considered Senator Baker's motive or intent in performing a legislative function in deciding whether absolute legislative immunity applies."

III. APPLICABLE STANDARDS OF REVIEW

We will review the Circuit Court's denial of legislative immunity de novo. See, e.g., Kaahumanu v. County of Maui, 315 F.3d 1215, 1219 (9th Cir. 2003).

A circuit court's ruling on a motion to dismiss is reviewed de novo.
A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his or her claim that would entitle him or her to relief. [The appellate court] must therefore view a plaintiff's complaint in a light most favorable to him or her in order to determine whether the allegations contained therein could warrant relief under any alternative theory. For this reason, in reviewing [a] circuit court's order dismissing [a] complaint ... [the appellate court's] consideration is strictly limited to the allegations of the complaint, and [the appellate court] must deem those allegations to be true.

County of Kaua'i v. Baptiste, 115 Hawai'i 15, 24, 165 P.3d 916, 925 (2007) (citations omitted).

IV. DISCUSSION

"It is well established that federal, state, and regional legislators are entitled to absolute immunity from civil liability for their legislative activities." Bogan v. Scott-Harris, 523 U.S. 44, 46, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). Legislative immunity has long been recognized in Anglo-American law, and is rooted in "the Parliamentary struggles of the Sixteenth and Seventeenth Centuries." Id. at 48-49, 118 S.Ct. 966 (citation omitted). If a state legislator is corrupt "he may be impeached or indicted but the law will not tolerate an action to redress the individual wrong which may have been done." Id. at 50, 118 S.Ct. 966 (citation omitted).

The Hawai'i State Constitution enshrines legislative immunity. "No member of the legislature shall be held to answer before any other tribunal for any statement made or action taken in the exercise of the member's legislative functions[.]" Haw. Const. art. III, § 7. In construing this provision, the Hawai'i Supreme Court has held:

[The] record of the proceedings of the Constitutional Convention shows that the delegates to the Convention purposefully intended to broaden the scope of the legislative immunity and further intended for the courts to finally determine the parameter of the legislative immunity by construing the clause "the exercise of his [or her] (legislator's) legislative function" on a case by case basis. The delegates did not place any restrictions premised on time and place of a legislator's exercise of his [or her] legislative function.

Abercrombie v. McClung, 55 Haw. 595, 600, 525 P.2d 594, 597 (1974).

This case comes before this court on the Circuit Court's ruling on a motion to dismiss the Complaint. Therefore, our consideration is strictly limited to the allegations of the Complaint, and we must deem those allegations to be true. Baptiste, 115 Hawai'i at 24, 165 P.3d at 925.

As stated above, Greer alleged two sets of actions by Senator Baker, which are stated in paragraphs 15 and 18 of the Complaint, as follows:

15. In retaliation for GREER'S whistleblowing activities, and in order to prevent more whistleblowing, BAKER attempted to have GREER fired by using her power as Chair of the Senate Ways & Means Committee to eliminate his position from the 2008 state appropriations budget. She did so by duplicitously representing to the Senate that her amendment did not impact or eliminate any filled State positions.
....
18. BAKER finally eliminated GREER in retaliation for his whistleblowing activities by colluding with the new Director of [DOH], Loretta J. Fuddy ("Fuddy"), now deceased. On August 24, 2011, Fuddy announced that two positions would be eliminated from [DOH], GREER and his Secretary, Caroline Albano.

(Emphasis added).

In Greer v. Baker II, the supreme court held:

Absolute legislative immunity is available to Baker if her action was taken in the exercise of [her] legislative functions[.] Haw. Const. art. III, § 7. Whether an act is legislative generally turns on the nature of the act itself, rather than on the motive or intent of the official performing it. Bogan v. Scott-Harris, 523 U.S. 44, 45, 118 S.Ct. 966, 140 L.Ed.2d 79 (1998). That determination would be separate from a decision on the merits of a[n] ... IIED claim. See ... Young v. Allstate Ins., Co., 119 Hawai'i 403, 429, 198 P.3d 666, 692 (2008) (describing the elements of an IIED claim).[ ]

137 Hawai'i at 255, 369 P.3d at 838 (internal quotation marks omitted).

With respect to the actions alleged in paragraph 15 of the Complaint, we conclude that Senator Baker is entitled to absolute legislative immunity because Senator Baker's actions, as Chair of the Senate Ways & Means Committee, of and related to introducing and voting on budget legislation, were undertaken in the exercise of her legislative functions. See, e.g., Bogan, 523 U.S. at 55-56, 118 S.Ct. 966. In Bogan, the plaintiff filed suit alleging that the elimination of her position "was motivated by racial animus and a desire to retaliate against her for exercising her First Amendment rights." Id. at 47, 118 S.Ct. 966. The Supreme Court reversed a court of appeals decision upholding a judgment against the defendant, stating:

Respondent, however, asks us to look beyond petitioners' formal actions to consider whether the ordinance was legislative in substance. We need not determine whether the formally legislative character of petitioners' actions is alone sufficient to entitle petitioners to legislative immunity, because here the ordinance, in substance, bore all the hallmarks of traditional legislation. The ordinance reflected a discretionary, policymaking decision implicating the budgetary priorities of the city and the services the city provides to its constituents. Moreover, it involved the termination of a position, which, unlike the hiring or firing of a particular employee, may have prospective implications that reach well beyond the particular occupant of the office. And the city council, in eliminating DHHS, certainly governed in a field where legislators traditionally have power to act. Thus, petitioners' activities were undoubtedly legislative.

Id. at 55-56, 118 S.Ct. 966 (citation and internal quotation marks omitted). Here, regardless of Senator Baker's possible subjective intentions or motives, the exercise of her powers as Chair of the Senate Ways & Means Committee was undoubtedly legislative and thus entitled to immunity from suit. See id.

The actions alleged in paragraph 18 of the Complaint simply assert that Senator Baker eliminated Greer by colluding with Fuddy. We disregard any intentions or motives for Senator Baker's alleged actions in paragraph 18. Nevertheless, we must view the allegations in paragraph 18 in a light most favorable to Greer. Baptiste, 115 Hawai'i at 24, 165 P.3d at 925. Although there may be alternative grounds for the dismissal of this claim for relief, we cannot conclude from the face of the Complaint that Senator Baker's alleged actions were undertaken in her legislative capacity. If, as Senator Baker argues on remand to this court, the alleged collusion itself relates to the elimination of Greer's position through budget legislation, then such actions would be entitled to absolute legislative immunity as well. However, that determination cannot be made based on the record that is currently before us.

Accordingly, we conclude that the Circuit Court erred in failing to dismiss Count II to the extent that Count II arises out of paragraph 15 of the Complaint, based on Senator Baker's absolute legislative immunity. We cannot conclude, based on the record on appeal, that the Circuit Court erred in failing to dismiss Count II to the extent that Count II arises out of paragraph 18 of the Complaint, based on Senator Baker's absolute legislative immunity.

V. CONCLUSION

With respect to the issue of Senator Baker's absolute legislative immunity from the claim stated in Count II of Greer's Complaint, the Circuit Court's December 24, 2014 Order re Dismissal is affirmed in part and vacated in part, as set forth above. This case is remanded to the Circuit Court for further proceedings consistent with this Opinion.

      The Honorable Rhonda A. Nishimura presided.

      Greer also sued Defendant-Appellee State of Hawai'i (State ), but those claims, which remain pending, are not at issue in this appeal.

      See Greer v. Baker, No. CAAP-15-0000034, 2015 WL 3385890 (App. May 26, 2015), Leonard, J., dissenting (Greer v. Baker I ).

      "[T]he tort of IIED consists of four elements: 1) that the act allegedly causing the harm was intentional or reckless, 2) that the act was outrageous, and 3) that the act caused 4) extreme emotional distress to another." Young, 119 Hawai'i at 429, 198 P.3d at 692 (citation and internal quotation marks omitted).