Shibuya v. County of Kauai ( 2023 )

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER
Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
31-JAN-2023
11:13 AM
Dkt. 84 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
ERIC Y. SHIBUYA, Plaintiff-Appellant
v.
COUNTY OF KAUAI; KAUAI POLICE DEPARTMENT;
DARRYL D. PERRY; MARK N. BEGLEY,
Defendants-Appellees,
and
JOHN DOES 1-10; JANE DOES 1-10;
DOE PARTNERSHIPS 1-10; and DOE ENTITIES 1-10,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIFTH CIRCUIT
(CIVIL NO. 13-1-0345)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Wadsworth and Nakasone, JJ.)
Plaintiff-Appellant Eric Y. Shibuya (Shibuya), a
retired Commander of the Kauai Police Department (KPD), appeals
from the Final Judgment entered on December 20, 2017, by the
Circuit Court of the Fifth Circuit (Circuit Court).1 As part of
the appeal, Shibuya challenges the following orders by the
Circuit Court in favor of Defendants-Appellees County of Kauai
(County), KPD, Darryl D. Perry (Chief Perry), and Mark N. Begley
(Deputy Chief Begley), (collectively, Appellees):
(1) the "Order Granting Defendant Mark N. Begley's, in
his Individual Capacity, Motion to Dismiss Verified Complaint"
entered on June 10, 2014;
1
The Honorable Randal G.B. Valenciano presided.
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(2) the "Order Granting Defendant Darryl D. Perry's, in
his Individual Capacity, Motion to Dismiss Verified Complaint"
entered on June 10, 2014; and
(3) the "Order Granting Defendants County of Kauai and
Kauai Police Department's Motion for Summary Judgment" (Order
Granting MSJ) entered on November 14, 2017.
Shibuya contends that the Circuit Court erred in:
(1) dismissing his claims against Chief Perry and Deputy Chief
Begley in their individual capacities; (2) determining the
exceptions to the exclusivity provision of the Hawai#i Workers'
Compensation Law do not apply to Shibuya's claims against the
County and KPD and the claims are therefore barred by Hawaii
Revised Statutes (HRS) § 386-5; and (3) determining Shibuya was
required to initially pursue his claims as a hybrid action before
the Hawai#i Labor Relations Board (HLRB).
For the reasons set forth below, we affirm.
I. Background
A. Claims Asserted
On November 29, 2013, Shibuya filed a Verified
Complaint (Complaint) against the County, KPD, Chief Perry, in
his official and individual capacities, and Deputy Chief Begley,
in his official and individual capacities, alleging: (1)
negligence, (2) civil conspiracy, (3) constructive discharge, (4)
defamation, (5) intentional infliction of emotional distress, (6)
negligent infliction of emotional distress, (7) abuse of process,
(8) malicious prosecution, (9) invasion of privacy, and
(10) negligent supervision.
B. Allegations in the Complaint
Shibuya's Complaint alleges, among other things, that
during his appointment as the Commander of the Vice Unit in KPD,
the Vice Unit conducted a raid on a chicken fight in Keapana on
or about March 15, 2009 (2009 Keapana Raid). During the course
of the investigation related to this raid, Shibuya assisted in
the identification of two suspects, whom Shibuya had played golf
with in the past.
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Shibuya alleged that after Chief Perry and Deputy Chief
Begley learned of the 2009 Keapana Raid and Shibuya's involvement
in the investigation, Chief Perry and Deputy Chief Begley,
began making false statements about [Shibuya] to other
police officers at KPD that: A. Suspect 1 and Suspect 2 were
members of organized crime . . . on Kauai; B. [Shibuya] had
divulged the name of a cooperating witness in the
investigation of the Keapana Chicken Fight Raid to Suspect 1
and Suspect 2; and C. [Shibuya] had inappropriate ties to
members of [organized crime].
Shibuya also alleged that based on their false statements, Chief
Perry and deputy Chief Begley initiated disciplinary transfer
proceedings and Shibuya was involuntarily transferred to the
Kauai Patrol Services Bureau. Shibuya further alleged that
Appellees initiated an "Administrative Investigation" in
retaliation against him for filing a grievance against KPD
through the State of Hawaii Organization of Police Officers
(SHOPO).
On or about March 1, 2010, while Shibuya's SHOPO
grievance and the Administrative Investigation against him were
still pending, Shibuya was reassigned from the KPD Patrol
Services Bureau back to his position as Commander of the Vice
Unit. On April 21, 2011, SHOPO closed Shibuya's grievance
against KPD because Shibuya's reassignment back to his original
position "negated the grievance." On December 30, 2011, the
internal Administrative Review Board found the charges against
Shibuya in the Administrative Investigation meritless and
dismissed the charges against him. However, Shibuya alleged that
because of Appellees' conduct, and "the intolerable working
conditions which continued to exist, Plaintiff retired
involuntarily from KPD on February 29, 2012, and did so
substantially earlier than he otherwise would have, but for said
conduct."
II. Standards of Review
A. Motion to Dismiss
A trial court's ruling on a motion to dismiss is reviewed de
novo. The court must accept plaintiff's allegations as true
and view them in the light most favorable to the plaintiff;
dismissal is proper only if it appears beyond doubt that the
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plaintiff can prove no set of facts in support of his or her
claim that would entitle him or her to relief.
Nakamoto v. Kawauchi, 142 Hawai#i 259, 268, 418 P.3d 600, 609
(2018) (citation omitted). "However, in weighing the allegations
of the complaint as against a motion to dismiss, the court is not
required to accept conclusory allegations on the legal effect of
the events alleged." Kealoha v. Machado, 131 Hawai#i 62, 74, 315
P.3d 213, 225 (2013) (citations omitted).
B. Summary Judgment
"On appeal, the grant or denial of summary judgment is
reviewed de novo." Ralston v. Yim, 129 Hawai#i 46, 55, 292 P.3d
1276, 1285 (2013) (citation omitted).
Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the
moving party is entitled to judgment as a matter of law. 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. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and inferences drawn therefrom in the light most
favorable to the party opposing the motion.
Id. at 55-56, 292 P.3d at 1285-86 (brackets and citation
omitted).
III. Discussion
A. Claims Against Chief Perry and Deputy Chief Begley in
Their Individual Capacity
Shibuya argues that the Circuit Court erred in
dismissing the claims against Chief Perry and Deputy Chief Begley
in their individual capacities because the Complaint sufficiently
alleged that they were motivated by malice, and not by an
otherwise proper purpose.
In granting their respective motions to dismiss the
claims against Chief Perry and Deputy Chief Begley in their
individual capacities, the Circuit Court concluded that the
allegations in the Complaint pertain to matters within Chief
Perry and Deputy Chief Begley's scope of employment with the
County and KPD. The Circuit Court also determined that Shibuya
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failed to state a claim against Chief Perry and Deputy Chief
Begley in their individual capacities. In other words, the
Circuit Court concluded that Shibuya's claims against Chief Perry
and Deputy Chief Begley were related to liability in their
official capacities and that Shibuya failed to state claims in
their individual capacities.
On appeal, Shibuya does not argue Chief Perry and
Deputy Chief Begley acted in their individual capacities.
Instead, Shibuya argues that he alleges Chief Perry and Deputy
Chief Begley acted with malice, which Shibuya contends is
sufficient to allow suit against them in their individual
capacities. In support of his argument, Shibuya cites Medeiros
v. Kondo, 55 Haw. 499, 522 P.2d 1269 (1974), and Kajiya v. Dept.
of Water Supply, 2 Haw. App. 221, 629 P.2d 635 (1981). However,
Medeiros considered only whether an official exercising his or
her authority has limited or absolute liability and held that "if
an official in exercising his authority is motivated by malice,
and not by an otherwise proper purpose, then he should not escape
liability for the injuries he causes." 55 Haw. at 503, 522 P.2d
at 1271. Medeiros did not make a distinction between an
official's liability in his or her individual and official
capacity.
In Kajiya, the plaintiff asserted tort claims against,
inter alia, defendant Shigeto Murayama in his individual capacity
and in his capacity as Director of the Department of Water
Supply. 2 Haw. App. at 222 n.2, 629 P.2d at 638 n.2. This Court
explained that, "[i]f it is determined that Mr. Murayama was
acting in his capacity as an individual, then he is liable only
if he committed a tort against plaintiffs." Id. at 226, 629 P.2d
at 640 (emphasis added) (footnote omitted). However, "[i]f it is
determined that Mr. Murayama was acting within the scope of his
employment as a public official, then he can be held liable for
general, special, and punitive damages (1) if he maliciously
exercised his official discretion, or (2) if he maliciously
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committed a tort against plaintiffs[.]" Id. (emphasis added)
(footnote and citations omitted).
We also consider Costales v. Rosete, 133 Hawai#i 453,
331 P.3d 431 (2014), where the Hawai#i Supreme Court stated:
To defeat a public official's claim of qualified immunity,
the burden is on the plaintiff to adduce "clear and
convincing proof that [the public official] defendant was
motivated by malice and not by an otherwise proper purpose."
[Medeiros, 55 Haw. at 505, 522 P.2d at 1272] "If it is
determined that [the individual defendant] was acting within
the scope of his employment as a public official, then he
can be held liable for general, special, and punitive
damages (1) if he maliciously exercised his official
discretion, or (2) if he maliciously committed a tort
against plaintiffs...." Kajiya v. Dep't of Water Supply, 2
Haw.App. 221, 227, 629 P.2d 635, 640 (App.1981) (citations
and footnote omitted).
Id. at 466, 331 P.3d at 444 (brackets in original and added).
The supreme court in Costales held that jury instructions were
defective because there had been no jury instruction on malice or
improper purpose, and thus, when the jury assigned damage amounts
to particular defendants in their individual and official
capacities in the special verdict form, the jury "was not
informed that [the plaintiff] had to meet a higher burden of
proof in order to hold the individual defendants personally
liable for her damages." Id. at 467, 331 P.3d at 445.
Under Medeiros, Kajiya and Costales, Shibuya's
allegations that Chief Perry and Deputy Chief Begley acted with
malice is relevant to whether they can be held liable when acting
in their capacity as a public official, but is not determinative
as to whether they can be held liable when acting in their
individual capacity. Shibuya does not otherwise argue the
Complaint alleged claims that Chief Perry and Deputy Chief Begley
were acting in their individual capacities. To the contrary,
Shibuya admits in his opening brief that his "complaint alleges
in relevant part that Defendants-Appellants Chief Perry and
Deputy Chief Begley essentially contrived to destroy Lt.
Shibuya's reputation and ruin his career through fraud, deceit
and the abuse of their newly conveyed powers" and that "to
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accomplish their objective, Chief Perry and Deputy Chief Begley
fabricated an 'Administrative Investigation'". (emphasis added).
We agree with the Circuit Court that the allegations in the
Complaint pertain to matters in the scope of Chief Perry and
Deputy Chief Begley's employment as public officials.
The Circuit Court did not err in dismissing Shibuya's
claims against Chief Perry and Deputy Chief Begley in their
individual capacities.
Dismissal of individual capacity claims does not
preclude a person acting within the scope of their employment as
a public official from being held personally liable if it is
proven by clear and convincing evidence that they acted
maliciously. In this case, however, the claims against Chief
Perry and Deputy Chief Begley in their official capacities were
dismissed by stipulation.2
2
On March 8, 2017, almost three years after the Circuit Court
dismissed Shibuya's claims against Chief Perry and Deputy Chief Begley in
their individual capacities, a "Stipulation to Dismiss Defendants Darryl D.
Perry, in his Official Capacity, and Mark N. Begley, in his Official Capacity"
(Stipulation), signed by all parties in this case, was approved and filed by
the Circuit Court. The stipulation indicates that the parties were dismissing
the claims against Chief Perry and Deputy Chief Begley in their official
capacities "because the claims against the Individual Defendants are
duplicative of the claims asserted against Defendant County of Kauai." The
Stipulation further states:
This Stipulation to Dismiss Defendants DARRYL D. PERRY, in
his official capacity, and MARK N. BEGLEY, in his official
capacity, is subject to and with reservation of all rights
and claims of Plaintiff to appeal any previous Orders(s),
including but not limited to, the dismissal of Defendants
DARRYL D. PERRY and MARK N. BEGLEY, in their individual and
official capacities. Other than effecting the dismissal
from this case of Defendants DARRYL D. PERRY, in his
official capacity, and MARK N. BEGLEY, in his official
capacity, subject to any appeal, this Stipulation shall not
act as a waiver or affect any claims nor prevent Plaintiff
from exercising any rights or remedies available to
Plaintiff, including without limitation, Plaintiffs right to
appeal.
Shibuya does not raise any issues in this appeal related to the stipulated
dismissal of his claims against Chief Perry and Deputy Chief Begley in their
official capacities.
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B. Non-Negligence Based Claims Against the County and KPD3
Shibuya argues that the Circuit Court erred in granting
the County and KPD's motion for summary judgment based on the
exclusivity provision of the Hawai#i Workers' Compensation Law,
HRS § 386-5, because the statute does not apply where the
employee alleges that co-workers acted outside the course and
scope of their employment and were motivated by malice.4 We
disagree.
The exclusivity provision of Hawai#i's Workers'
Compensation Law, HRS § 386-5 (2015), provides:
Exclusiveness of right to compensation; exception. The
rights and remedies herein granted to an employee or the
employee's dependents on account of a work injury suffered
by the employee shall exclude all other liability of the
employer to the employee, the employee's legal
representative, spouse, dependents, next of kin, or anyone
else entitled to recover damages from the employer, at
common law or otherwise, on account of the injury, except
for sexual harassment or sexual assault and infliction of
emotional distress or invasion of privacy related thereto,
in which case a civil action may also be brought.
(Emphasis added.) HRS § 386-1 (2015) defines "work injury" as "a
personal injury suffered under the conditions specified in
section 386-3."
HRS § 386-3 (2015) provides, in pertinent part:
Injuries covered. (a) If an employee suffers personal
injury either by accident arising out of and in the course
of the employment or by disease proximately caused by or
resulting from the nature of the employment, the employee's
3
On June 10, 2014, the Circuit Court entered an "Order Granting in
Part and Denying in Part [County] and [KPD's] Motion to Dismiss Verified
Complaint" which determined that Shibuya's negligence based claims --
negligence, negligent infliction of emotional distress, and negligent
supervision -- are barred by HRS § 386-5. Shibuya does not challenge the
Circuit Court's dismissal of his negligence based claims.
Shibuya only challenges the Circuit Court's Order Granting MSJ, which held
that Shibuya's remaining claims against the County and KPD, i.e., the non-
negligence based claims -- civil conspiracy, constructive discharge,
defamation, intentional infliction of emotional distress, abuse of process,
malicious prosecution, and invasion of privacy -- are barred by HRS § 386-5.
4
Shibuya does not argue that any of his particular claims are not
barred by the Workers' Compensation exclusivity provision. We note that
Shibuya alleges a constructive discharge claim but this claim is unlike the
employment discrimination claim asserted in Furukawa v. Honolulu Zoological
Soc., 85 Hawai#i 7, 936 P.2d 643 (1997), under HRS Chapter 378 and HRS Chapter
368.
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employer or the special compensation fund shall pay
compensation to the employee or the employee's dependents as
provided in this chapter.
Accident arising out of and in the course of the employment
includes the wilful act of a third person directed against
an employee because of the employee's employment.
(Emphases added.) HRS § 386-8 (2015), which covers the liability
of third persons for a work injury, provides in relevant part:
Another employee of the same employer shall not be relieved
of his liability as a third party, if the personal injury is
caused by his wilful and wanton misconduct.
Essentially, Shibuya raises the same argument that this
Court expressly rejected in Yang v. Abercrombie & Fitch Stores,
128 Hawai#i 173, 284 P.3d 946 (App. 2012), overruled in part by
Nakamoto v. Kawauchi, 142 Hawai#i 259, 418 P.3d 600 (2018).5 In
Yang, a store employee alleged that she was wrongfully accused of
stealing money by her co-workers and filed a complaint alleging
multiple intentional tort causes of action, including defamation,
wrongful termination, civil conspiracy, and intentional
infliction of emotional distress. Id. at 174-75, 284 P.3d at 947-
48. This Court held that,
The plain language of HRS § 386–5, and the harmonious
reading of the Workers' Compensation Law as a whole,
mandates the conclusion that the workers' compensation
remedies granted to Yang exclude all other liabilities of
[the employer] to Yang on account of the personal injuries
she allegedly suffered arising out of and in the course of
her employment. As the supreme court discussed in Iddings,
HRS § 386–8 clearly limits the immunity provided to a
co-employee who has caused an injury by willful and wanton
misconduct, which includes intentional and reckless acts.
[Iddings v. Mee-Lee, 82 Hawai#i 1, 12, 912 P.2d 263, 274
(1996)]. Neither HRS § 386–5 nor HRS § 386–8 include any
such limitation for the immunity provided to the employer.
Nor do these provisions allow, as Yang seeks to pursue, suit
against the employer for the alleged willful and wanton
misconduct of a complainant's fellow employee.
5
In Nakamoto, the Hawai#i Supreme Court overruled Yang to the extent
it held that HRS § 386-5 precludes employees from bringing defamation claims
against their employers. Nakamoto, 142 Hawai#i at 268-69, 418 P.3d at 609-10.
The supreme court held that the exclusivity provision does not extend to
injuries to a person's reputation because the purpose of Workers' Compensation
Law is to compensate employees for work-related physical and mental injuries
while the purpose of defamation and false light actions is to compensate a
plaintiff for harm to his or her reputation. Id. at 268, 418 P.3d at 609.
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Id. at 181, 284 P.3d at 954 (footnote omitted) (emphases added).
Shibuya argues that unlike in Yang, Chief Perry and Deputy Chief
Begley were not merely acting in the course and scope of their
employment and were motivated by malice. However, for purposes
of the County and KPD's liability, the main inquiry is whether
Shibuya suffered "personal injury . . . by accident arising out
of and in the course of the employment[.]" In turn, HRS § 386-3
expressly provides that "[a]ccident arising out of and in the
course of the employment includes the wilful act of a third
person directed against an employee because of the employee's
employment." See HRS § 386-3. Thus, even if the alleged actions
by Chief Perry and Deputy Chief Begley in this case were
motivated by malice, the exclusivity provision under HRS § 386-5
applies with respect to Shibuya's claims against his employers,
the County and KPD.
Given the above, the Circuit Court did not err in
granting the County and KPD's Motion for Summary Judgment and
concluding that Shibuya's non-negligence based claims –- civil
conspiracy, constructive discharge, intentional infliction of
emotional distress, abuse of process, malicious prosecution and
invasion of privacy -- for which he asserts physical and
emotional injury against the County and KPD, were barred by HRS
§ 386-5.
However, the Circuit Court erred to the extent that it
determined that Shibuya's defamation claim against the County and
KPD were barred by the exclusivity provision. See Nakamoto, 142
Hawai#i at 272, 418 P.3d at 613 (holding that reputational harm
is not a "personal injury" under HRS § 386-3 and thus not barred
by HRS § 386-5).
Nevertheless, it is well settled that "[a]n appellate
court may, however, affirm a decision of a lower court on any
ground in the record which supports affirmance." Peak Capital
Group, LLC v. Perez, 141 Hawai#i 160, 175, 407 P.3d 116, 131
(2017). Appellees argue that Shibuya's defamation claim is time
barred pursuant to HRS § 657-4 (2016), which governs defamation
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actions and which provides, "[a]ll actions for libel or slander
shall be commenced within two years after the cause of action
accrued, and not after." In his reply brief, Shibuya does not
argue that the defamation claim is timely. We agree with the
Appellees that Shibuya's defamation claim is time barred by the
statute of limitations.
Shibuya filed his Complaint on November 29, 2013.
Under HRS § 657-4, the alleged defamatory statements must have
been made no earlier than November 29, 2011. See Bauernfiend v.
AOAO Kihei Beach Condos., 99 Hawai#i 281, 284, 54 P.3d 452, 455
(2002) ("the computation of time under the prescribed two-year
statute of limitations would exclude the first day on which the
cause of action accrues and include the last day, two years
thereafter.").
Shibuya alleged in his Complaint, inter alia,
203. Defendants, and each of them, knowingly made and
published false accusations and information about Plaintiff
to members of the Kauai Police Department and/or other
persons falsely accusing Plaintiff, inter alia, that Suspect
1 and Suspect 2 were members of [organized crime] on Kauai,
that Plaintiff had divulged the name of a cooperating
witness in the investigation of the Keapana Chicken Fight
Raid to Suspect 1 and Suspect 2, and that Plaintiff had
inappropriate ties to members of [organized crime] on
Kauai[.]
In Shibuya's Declaration dated October 2, 2017, attached to his
Memorandum in Opposition to the County and KPD's Motion for
Summary Judgment, Shibuya attests that after learning of his
involvement in the 2009 Keapana Raid investigation, Chief Perry
and Deputy Chief Begley "began making false statements about
[Shibuya] to other police offers at KPD" and "[b]ased on the
false statements . . . Chief Perry and Deputy Chief Begley, using
the color of their respective offices, initiated disciplinary
transfer proceedings against [Shibuya] on April 16, 2009." In
other words, based on his declaration, the defamatory statements
were alleged to have occurred after the 2009 Keapana Raid and
leading up to Shibuya's disciplinary transfer proceedings in
April 2009, which would render his defamation claim untimely.
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Moreover, the answering brief points to portions of
Shibuya's deposition to further indicate that the defamation
claim is untimely, in which Shibuya testified that his defamation
claim is based on: (1) a document signed by Deputy Chief Begley
titled "Lieutenant Eric Shibuya judgment concerns" dated revised
June 10, 2009; (2) a memo from Deputy Chief Begley to Shibuya
dated April 28, 2009; and (3) general statements made by unknown
persons to third parties that Shibuya was the subject of an
administrative investigation. A defamation claim based on the
two documents is clearly untimely. Shibuya's deposition is
unclear as to when the general statements were made to third
parties that he claims were defamatory. Further, when asked
directly during his deposition, Shibuya was unable to identify
who made the allegedly defamatory statements or what statements
were made. In other words, Shibuya was unable to establish he
could potentially show who made allegedly defamatory statements,
what the statements were and when they were allegedly made.
Discovery was closed when the Order Granting MSJ was entered on
November 14, 2017, and thus the County and KPD satisfied its
initial burden as the movant by demonstrating that Shibuya would
be unable to carry his burden of proof at trial.6 See Ralston,
129 Hawai#i at 57, 292 P.3d at 1287 ("where the non-movant bears
the burden of proof at trial, a movant may demonstrate that there
is no genuine issue of material fact by . . . demonstrating that
the non-movant will be unable to carry his or her burden of proof
at trial.").
The undisputed record indicates that Shibuya filed his
defamation claim beyond the applicable two-year statute of
limitations in HRS § 657-4. Thus, as to the defamation claim, we
affirm the Circuit Court on this basis.
6
The Order Setting Trial Date does not specify a discovery deadline.
Trial was set for the week of December 4, 2017. Pursuant to the Rules of the
Circuit Court of the State of Hawai#i (RCCH) Rule 12(r) (2007), the discovery
deadline was 60 days before the assigned trial date, which means the discovery
deadline was October 5, 2017. See RCCH Rule 12(r) ("Discovery shall be cut
off 60 days before the assigned trial date.").
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C. HLRB Hybrid Action and Exhaustion of Remedies
Finally, Shibuya contends that the Circuit Court erred
in determining he was required to initially pursue his claims
against the County and KPD as a hybrid action before the HLRB and
exhaust his administrative remedies. Shibuya argues that his
claims do not allege a violation, misinterpretation, or
misapplication of a provision of the collective bargaining
agreement and thus he was not required to exhaust his
administrative remedies.
In its Order Granting MSJ, the Circuit Court ordered,
inter alia, as follows:
1. The exceptions to the exclusivity provision of the
Workers' Compensation Law, Haw. Rev. Stat. § 386-5, do not
apply to the claims asserted by Plaintiff in this case. As
such, all of Plaintiff's remaining claims are barred by Haw.
Rev. Stat. § 386-5, and Defendants' Motion is granted on
this basis.
2. It is undisputed that Plaintiff asked the union to file a
grievance on his behalf and the union refused. As such,
Plaintiff was required to initially pursue his claims as a
hybrid action before the Hawaii Labor Relations Board
("HLRB"), as set forth in Lee v. United Pub. Workers,
AFSCME, Local 646, 125 Hawai#i 317, 260 P.3d 1135 (Haw. Ct.
App. 2011). Although Plaintiff may appeal an adverse HLRB
decision to this Court, this Court lacks original
jurisdiction over Plaintiff's claims, and Defendants' Motion
is granted on this additional basis.
(Emphases added.)
The Circuit Court granted the County and KPD's motion
for summary judgment on the basis that Shibuya's claims were
barred by the workers' compensation statute, and further
concluded that Shibuya was required to initially pursue his claim
as a "hybrid action" as an additional basis. Given our
determination above that the Circuit Court did not err in
granting summary judgment for the County and KPD based on the
workers' compensation exclusivity provision and the statute of
limitations as to the defamation claim, we need not reach
Shibuya's third point of error.
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IV. Conclusion
For the forgoing reasons, we affirm the Circuit Court's
Final Judgment entered on December 20, 2017, and the following:
(1) "Order Granting Defendant Mark N. Begley's, in his
Individual Capacity, Motion to Dismiss Verified Complaint"
entered on June 10, 2014;
(2) "Order Granting Defendant Darryl D. Perry's, in his
Individual Capacity, Motion to Dismiss Verified Complaint"
entered on June 10, 2014; and
(3) "Order Granting Defendants County of Kauai and
Kauai Police Department's Motion for Summary Judgment" entered on
November 14, 2017.
DATED: Honolulu, Hawai#i, January 31, 2023.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Eric Shibuya,
(Charley Foster on opening /s/ Clyde J. Wadsworth
brief), Associate Judge
Self-Represented Plaintiff-
Appellant /s/ Karen T. Nakasone
Associate Judge
Sarah O. Wang,
Emily R. Marr,
for Defendants-Appellees
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