Fukumoto v. State ( 2022 )

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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-FEB-2022
09:34 AM
Dkt. 65 MO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I
JODI H. FUKUMOTO, Plaintiff-Appellant,
v.
STATE OF HAWAII; MARK A. FRIDOVICH, in his official capacity as
Hawaii State Hospital Administrator, Defendants-Appellees
and
JOHN AND JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; and OTHER DOE ENTITIES 1-10,
Defendants
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 12-1-3066)
MEMORANDUM OPINION
(By: Ginoza, Chief Judge, Leonard and McCullen, JJ.)
Plaintiff-Appellant Jodi H. Fukumoto (Fukumoto) appeals
from the Judgment entered on October 6, 2016, by the Circuit
Court of the First Circuit (Circuit Court), which entered
judgment in favor of Defendants-Appellees State of Hawai#i,
Department of Health, and Mark A. Fridovich, in his official
capacity as Hawai#i State Hospital Administrator (collectively,
the State) on all claims asserted by Fukumoto in her Complaint
filed on December 5, 2012.1 In this appeal, Fukumoto challenges
the Circuit Court's grant of summary judgment for the State, set
forth in the "Order Granting [the State's] Motion for Summary
Judgment," also filed on October 6, 2016.
1
The Honorable Edwin C. Nacino presided.
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During the relevant period in this case, Fukumoto was
employed by Hawai#i State Hospital (HSH) as a registered nurse
during the evening shift in the State Operated Specialized
Residential Program (SOSRP).2 Fukumoto's Complaint alleges that
she reported employee infractions and misconduct to Martin E.
Matthews (Matthews), her direct supervisor, and the State
retaliated against her for these reports in violation of the
Hawai#i Whistleblowers' Protection Act (HWPA), under Part V,
Chapter 378 of the Hawaii Revised Statutes (HRS). After the
discovery cutoff, the State sought summary judgment, which the
Circuit Court granted and dismissed Fukumoto's HWPA claim.
On appeal, Fukumoto contends the Circuit Court erred in
granting summary judgment because there were genuine issues of
material fact as to whether: (1) Fukumoto reported violations of
State law; (2) the State retaliated against Fukumoto as a result;
(3) there was a nexus between Fukumoto's reporting and the
retaliation; and (4) Fukumoto incurred damages.3
We hold that, although Fukumoto's reports to her
employer did not explicitly assert or cite a law being violated,
her HWPA claim was not barred in this case. We further conclude
2
The SOSRP houses patients/clients discharged from the HSH, including
those who have been found "not guilty by reason of insanity" for alleged
crimes.
3
The State contends Fukumoto's points of error should be disregarded
and her arguments deemed waived because Fukumoto fails to cite to the record.
See Hawai#i Rules of Appellate Procedure (HRAP) Rule 28(b)(4)(ii) ("Each point
shall state: . . . where in the record the alleged error occurred[.]"). In
addition, the State contends the opening brief contains bare allegations and
unsupported assertions, which primarily rely on Fukumoto's self-serving
declaration to establish a triable issue of fact. While noncompliance with
HRAP Rule 28(b)(4) can alone be sufficient to affirm the lower court's
judgment, we endeavor to afford "litigants the opportunity to have their cases
heard on the merits, where possible." Marvin v. Pflueger, 127 Hawai #i 490,
496, 280 P.3d 88, 94 (2012) (citation and internal quotation marks omitted).
Therefore, to the extent we can discern Fukumoto's assertions of error and
arguments, we will address them. Further, with regard to Fukumoto's
declaration, the Hawai#i Supreme Court has expressed that "a party's
self-serving statements that otherwise comply with [Hawai #i Rules of Civil
Procedure (HRCP)] Rule 56(e) can be utilized to defeat summary judgment[,]"
and such affidavits do not need to be corroborated to be a qualifying
affidavit under HRCP Rule 56. Nozawa v. Operating Eng'rs. Local Union No. 3,
142 Hawai#i 331, 339, 418 P.3d 1187, 1195 (2018) (citations omitted).
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that, viewing the evidence in the light most favorable to
Fukumoto, which we must, the State failed to carry its burden to
establish that it was entitled to summary judgment. We thus
vacate the Judgment and remand the case for further proceedings.
I. Standard of Review
On appeal, we review a circuit court's grant of summary
judgment de novo using the same standard applied by the circuit
court. Nozawa, 142 Hawai#i at 338, 418 P.3d at 1194 (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
a 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 burden is on the moving party to establish that
summary judgment is proper. This burden always
remains with the moving party and requires the moving
party to convince the court that no genuine issue of
material fact exists and that the moving party is
entitled to summary judgment as a matter of law.
Once a summary judgment movant has satisfied its
initial burden of producing support for its claim that
there is no genuine issue of material fact, the party
opposing summary judgment must demonstrate specific
facts, as opposed to general allegations, that present
a genuine issue worthy of trial. The evidence must be
viewed in the light most favorable to the non-moving
party.
Id. at 342, 418 P.3d at 1198 (format altered) (brackets,
citations, and internal quotation marks omitted).
In a case like this, where the defendant files a
summary judgment motion and the plaintiff has the ultimate burden
of proof at trial, the following applies:
[W]here the non-movant bears the burden of proof at trial, a
movant may demonstrate that there is no genuine issue of
material fact by either: (1) presenting evidence negating an
element of the non-movant's claim, or (2) demonstrating that
the non-movant will be unable to carry his or her burden of
proof at trial.
Ralston v. Yim, 129 Hawai#i 46, 57, 292 P.3d 1276, 1287 (2013).
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II. Discussion
A. Standards for an HWPA Claim
The HWPA provides, in relevant part:
Discharge of, threats to, or discrimination against employee
for reporting violations of law. An employer shall not
discharge, threaten, or otherwise discriminate against an
employee regarding the employee's compensation, terms,
conditions, location, or privileges of employment because:
(1) The employee, or a person acting on behalf of
the employee, reports or is about to report to
the employer, or reports or is about to report
to a public body, verbally or in writing, a
violation or a suspected violation of:
(A) A law, rule, ordinance, or regulation,
adopted pursuant to law of this State, a
political subdivision of this State, or
the United States;
. . .
unless the employee knows that the report is
false [.]
HRS § 378-62 (2015).
This court has previously expressed the following
regarding HWPA claims:
In order to prevail on an HWPA claim, an employee must prove
the following: (1) the employee engaged in protected conduct
under the HWPA, (2) the employer took an adverse employment
action against the employee, and (3) a causal connection
exists between the employee's protected conduct and the
employer's adverse action (i.e., the employer's action was
taken because the employee engaged in protected conduct; the
employee has the burden of showing that the protected
conduct was a "substantial or motivating factor" in the
employer's decision to take the employment action). See
Crosby v. [] State Dep't of Budget & Fin., 76 Hawai #i 332,
341–42, 876 P.2d 1300, 1309–10 (1994); see also Tagupa v.
VIPdesk, Inc., 125 F. Supp. 3d 1108, 1119 (D. Haw. 2015).
The employer carries the burden of negating causation only after
the employee first demonstrates a causal connection. Crosby, 76
Hawai#i at 342, 876 P.2d at 1310. Therefore, "once the employee
shows that the employer's disapproval of his or her protected
activity played a role in the employer's action against him or
her, the employer can defend affirmatively by showing that the
termination would have occurred regardless of the protected
activity." Id. (citation, internal quotation marks and brackets,
in original omitted; emphasis added) (applying federal case law on
employees' rights under the National Labor Relations Act to the
HWPA). "An aggrieved employee always retains the ultimate burden
of proof in a retaliatory discharge case" and, therefore, the
employer's burden is a burden of production, not a burden of
persuasion. Id.4
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"If the employer rebuts the prima facie case, the burden reverts
to the employee to demonstrate that the employer's proffered
reasons were 'pretextual.'" Adams [v. CDM Media USA, Inc.], 135
Hawai#i [1,] 14, 346 P.3d [70,] 83 [(2015)] (quoting Shoppe [v.
Gucci Am., Inc.], 94 Haw. [368,] 379, 14 P.3d [1049,] 1060
[(2000)]) (describing the burden-shifting analysis that Hawai #i
court's use when analyzing a claim of age discrimination that
relies on circumstantial evidence); Schefke v. Reliable Collection
Agency, Ltd., 96 Hawai#i 408, 425, 32 P.3d 52, 69 (2001) ("If the
employer articulates such a reason for terminating the employee,
the employee bears the ultimate burden of demonstrating that the
reason was merely a pretext for a discriminatory motive."); see
also Crosby, 76 Hawai#i at 342, 876 P.2d at 1310 (concluding that
the HWPA follows the same burden of proof used in "traditional
labor management relations discharge cases").
Medina v. FCH Enters., Inc., No. CAAP–14–0001316, 2016 WL
6748063, at *3-4 (Haw. App. Nov. 15, 2016) (mem.) (emphasis and
brackets omitted). The HWPA is a remedial statute and should be
construed liberally to accomplish the purpose for which it was
enacted. Crosby, 76 Hawai#i at 341-42, 876 P.2d at 1309-10(citations omitted).
"Although Crosby reviewed a ruling entered after a
jury-waived trial, this court and the United States District
Court for the District of Hawai#i have applied the HWPA burden-
shifting analysis at summary judgment." Dobbs v. Cty. of Maui,
No. CAAP-XX-XXXXXXX, 2019 WL 762407, at *2 (Haw. App. Feb. 20,
2019), as corrected (Mar. 13, 2019) (SDO) (citing Medina, 2016 WL
6748063, at *4; Taguchi v. State, Dep't of Health, No.
CAAP-XX-XXXXXXX, 2012 WL 5676833, at *1-2 (Haw. App. Nov. 15,
2012) (SDO); Mussack v. State, No. 28774, 2011 WL 6144904, at *3
(Haw. App. Dec. 7, 2011) (SDO); Tagupa, 125 F. Supp. 3d at 1119;
Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1131-32 (D. Haw.
2008)).
Ultimately, given that we are reviewing the Circuit
Court's grant of summary judgment in favor of the State, we
consider whether the State demonstrated that there is no genuine
issue of material fact by either: (1) presenting evidence
negating an element of non-movant Fukumoto's claim, or (2)
demonstrating that non-movant Fukumoto will be unable to carry
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her burden of proof at trial. See Ralston, 129 Hawai#i at 57,
292 P.3d at 1287.
B. Fukumoto's Complaint
In her Complaint, Fukumoto alleged in relevant part:
7. Plaintiff commenced work for Defendants on or
about May 9, 2011. [Matthews], Mental Health Supervisor II,
is Plaintiff's direct supervisor at all times relevant to
the complaints set forth in this complaint.
8. Prior to reporting the matters set forth below,
Plaintiff had met or exceeded job qualifications for
Registered Nurse III.
9. On or about between January of 2012 and March of
2012, Plaintiff, in letters and in Employee Incident Reports
("EIRs"), reported to Matthews (and HSH as well) the
continuous employee infractions occurring at SOSRP on the
evening shift. Matthews decided to dismiss Plaintiffs [sic]
concerns for patient safety rather than address the issues.
On March 13, 2012, Matthews met with Fukumoto in his office
and told her that there were numerous employee complaints
against her as charge nurse during the evening shift, but
not to worry. Then on March 28, 2012, Matthews, conducted
an improper appraisal and imposed improper disciplinary
action.
10. Matthews stated on or about March 30, 2012,
"She's (Plaintiff) got to go," to RN Thomas Martin. Martin
reported the comments to appropriate staff. Upon
information and belief, Matthews used the fact that
Plaintiff and Martin were socially involved as a pretext to
justify his comments. The real reasons for the
inappropriate comments were in retaliation for Plaintiff
reporting the foregoing issues of patient safety.
11. Rather than support Plaintiff's efforts to
supervise evening staff and run a safe unit and improve
client care - Matthews buckled under staff dissent.
Matthews instead attacked Plaintiff's communication and
supervisory skills and reduced her charge nurse hours in
order to quell staff retaliation. In doing so Matthews
condoned the unfavorable actions of staff; in reassigning
Plaintiff, Matthews allowed these unfavorable actions to
escalate. For example, Matthews, immediately and without
investigation, accepted and supported Ms. LPN Elizabeth
Rubino's very questionable account of the evening of
6/7/2012. His email indicated his gross bias in that he
would restate such a defaming claim: "Jodi Fukumoto was
raging," without any investigation. His very action proved
that he had already made a determination without even
hearing from Plaintiff first. Matthews did not call
Plaintiff to assess her state of mind. Matthews did not ask
Plaintiff to leave work. He did not call security, the
Nursing Office, or the police. On the evening of 6/7/2012
as charge nurse, Plaintiff had counseled three employees for
not being attentive to patient safety during their assigned
shifts; these very same three employees complained about her
as a result and Matthews took their word over hers without
hearing both sides of the situation first.
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12. Defendants turned a blind eye to unsafe
workplace practices that put employees and patients at risk;
Defendants singled Plaintiff out and made an example of her
for reporting unsafe workplace practices after first falsely
accusing her of being incompetent, untenable and disruptive.
13. Defendant retaliated against Plaintiff in
violation of HRS 378-62, et al. [HWPA] for reporting unsafe
workplace practices[.]
(Emphases added.)
Fukumoto's Complaint further detailed alleged actions
taken against her in retaliation for her reporting unsafe
workplace practices, including: (1) improper/unofficial
supervisory appraisal and criticism of communication and
supervisory skills, resulting in a limit on supervisory duties,
disciplinary action, and reduction of hours and wages; (2)
reassignment from out-patient to in-patient care and night shift
to day shift, resulting in hardship to Fukumoto as she was
"forc[ed]" to take leave to receive "proper" training for in-
patient care duties, and emotional distress and out-of-pocket
damages as Fukumoto is her mother's caregiver during the day and
needed to make alternative arrangements for care once reassigned
to day shift; (3) improperly delaying or denying requests for
employee leave; (4) false incident reports and harassment against
Fukumoto; and (5) improper tracking, calculation, and
distribution of leave and earnings.
C. The State did not meet its burden to show there
was no genuine issue of material fact
1. There are genuine issues of material fact whether
Fukumoto engaged in protected conduct under the
HWPA.
As noted, in paragraph 9 of her Complaint, Fukumoto
alleged:
On or about between January of 2012 and March of 2012,
Plaintiff, in letters and in Employee Incident Reports
("EIRs"), reported to Matthews (and HSH as well) the
continuous employee infractions occurring at SOSRP on the
evening shift.
(Emphasis added.) The Circuit Court did not articulate its
reason for granting summary judgment. The State contends that
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Fukumoto's reports during the relevant time frame did not
constitute protected activity under the HWPA, which requires
proof that the employee reported or was about to report a
violation of "[a] law, rule, ordinance, or regulation, adopted
pursuant to law of this State, a political subdivision of this
State, or the United States[.]" HRS § 378-62(1)(A).
The State contends that, given the specified
allegations in the Complaint, the following reports made by
Fukumoto should be considered for purposes of this appeal: (1) a
February 14, 2012 EIR about Paramedical Assistant Seth Soriano
(PMA Soriano) using his cell phone throughout his evening shift
and refusing a request not to use his cell phone during his
shift; (2) a March 13, 2012 email and report to Matthews
requesting that all evening staff sign in and out during their
breaks and specifying incidents and issues prompting the request;
and (3) an EIR purportedly submitted on March 13, 2012, but dated
April 19, 2012, in which Fukumoto described three incidents
involving Licensed Practical Nurse Elizabeth Rubino (LPN Rubino)
on March 9, 2012, March 11, 2012, and March 26, 2012.4
In opposition to the State's motion for summary
judgment, Fukumoto submitted her declaration attesting that she
submitted more than three written reports to Matthews, not all of
which were assigned EIR numbers and some that occurred outside of
the time frame asserted in the Complaint. Further, in responding
to an interrogatory request seeking the facts that support her
allegations in paragraph 9 of her Complaint, Fukumoto points to
emails, EIRs, and letters she purports to have submitted both
within and beyond the time frame asserted in paragraph 9 of her
4
The State concedes that, given evidence in the record that Fukumoto
submitted an EIR dated March 13, 2012, to Matthews about the first two
incidents in the April 19, 2012 EIR, but that Matthews told her to hold off on
submitting that earlier report, those two incidents should be considered for
purposes of this appeal. The State contends, however, that the third incident
in the April 19, 2012 EIR should not be considered because it was reported
outside the time frame alleged in the Complaint. As discussed infra, we agree
with the State's position in this regard.
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Complaint, as well as incidents she allegedly "verbalized" to
Matthews.
Given the state of the record, and that Fukumoto's
Complaint was not amended, we deem it appropriate to limit our
review to the EIRs and emails/reports provided by Fukumoto to
Matthews during the time frame asserted in the Complaint. We
thus consider the following reports by Fukumoto, which are
identified in Fukumoto's declaration and/or in her response to
interrogatories: (1) the EIR dated February 14, 2012, regarding
PMA Soriano using his cell phone throughout an evening shift and
refusing Fukumoto's request to leave his phone in the office
during his shift; (2) the email and report dated March 13, 2012,
to Matthews, requesting that all evening staff sign in and sign
out during their breaks, which also specified incidents and
issues that prompted Fukumoto's request;5 and (3) the EIR dated
March 13, 2012, that Fukumoto attests she submitted to Matthews
at a meeting on the same day regarding two incidents, on March 9,
2012 and March 11, 2012, involving insubordination by LPN Rubino
and her refusal and opposition to orders by Fukumoto to sign out
for breaks,6 which Matthews purportedly reviewed but then told
Fukumoto to "[h]old off on submitting."
5
This report noted an incident where Fukumoto did not recall a staff
member telling her he was going on break the night a client was placed under
supervision and eloped, noting that if the staff member had reported his
break, coverage would have been assigned to his cottage during his break. The
report also noted a "standing issue" of staff congregating in one cottage,
leaving another cottage unsupervised, and that a sign-out log for breaks could
make staff more conscious about the length of their breaks. Fukumoto also
noted in this report that there is no management present during evening shifts
and the charge nurse is responsible for the safety of the unit and she "just
want[s] to insure that safety."
6
The incidents documented in the March 13, 2012 EIR include that LPN
Rubino repeatedly opposed signing a "staff break sign-out log" saying, inter
alia, that there was no written policy and stating she needed to hear it from
Matthews, such that Fukumoto was concerned LPN Rubino may not comply with
orders in crisis situations unless orders are first verified by management or
written in policy. Fukumoto's report also references past incidents where:
LPN Rubino repeatedly questioned Fukumoto's decision to have staff call 911
during a physical altercation between two clients; LPN Rubino interrupted
Fukumoto's discussion with PMA Soriano on February 14, 2012, when Fukumoto was
asking PMA Soriano to leave his cell phone in the office while on-duty; and
LPN Rubino's grievances against Fukumoto, which Fukumoto asserted was being
used to fuel dissension with Fukumoto and which "jeopardizes the safety of the
milieu."
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In considering the relevant reports, we address
Fukumoto's contention that she was raising concerns about unsafe
workplace practices at SOSRP. We note Fukumoto's declaration
attests that:
SOSRP residents/clients are discharged HSH patients, who
generally have been diagnosed with mental illnesses and have
legal encumbrances. Primarily these patients have been found
"not guilty by reason of insanity" for crimes committed.
Generally HSH patients are court-ordered specifically to the
SOSRP on conditional release (CR) under Hawaii Revised
Statutes 704-411 or 704-406. Patients with a prominent
history of violence (murder, attempted murder, 1st degree
assault, rape), as well as those hard to place in the
community for a wide range of reasons are generally first
discharged from HSH to SOSRP. SOSRP is responsible for the
direct supervision of its clients who reside on unit 24
hours a day, seven days a week.
(Emphasis omitted.) Under HRS § 704-406(1) (2014), titled
"Effect of finding of unfitness to proceed[,]" defendants found
unfit to proceed in court are committed "to the custody of the
director of health to be placed in an appropriate institution for
detention, care, and treatment[.]" Likewise, under 704-411(1)(a)
(2014), titled "Legal effect of acquittal on the ground of
physical or mental disease, disorder, or defect excluding
responsibility; commitment; conditional release; discharge;
procedure for separate post-acquittal hearing[,]" defendants are
"committed to the custody of the director of health to be placed
in an appropriate institution for custody, care, and treatment"
under specified circumstances.
The State argues that the relevant reports by Fukumoto
do not allege a violation of a law, do not reference any law, and
that alleging a violation of a policy is not sufficient for
asserting an HWPA claim.
Fukumoto contends, however, that she was making reports
regarding violations or suspected violations of HRS §§ 704-406
and 704-411 because her reports dealt with staff at SOSRP failing
to be attentive to patients, including the improper use of cell
phones and improper monitoring of patients.
Fukumoto cites a variety of case law outside this
jurisdiction to support her position that she reported a
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violation or suspected violation of law, even though she did not
cite a particular law being violated in her reports to Matthews.
Of note, Fukumoto cites Moore v. California Institute of
Technology Jet Propulsion Laboratory, 275 F.3d 838 (9th Cir.
2002), which dealt with a claim by a plaintiff against his former
employer under, inter alia, the False Claim Act, 31 U.S.C.
§ 3730(h) (2006), asserting retaliation after he reported
suspected fraud by the employer. 275 F.3d at 840-41. As
explained by the Ninth Circuit Court of Appeals:
The False Claims Act protects "whistle blowers" from
retaliation by their employers. Thus, the False Claims Act
makes it illegal for an employer to "discharge, demote,
suspend, threaten, harass, or in any other manner
discriminate against an employee in the terms and conditions
of employment because of lawful acts done by the employee in
furtherance of an action under this section, including
investigation for, initiation of, testimony for, or
assistance in an action filed or to be filed under this
section." 31 U.S.C. § 3730(h).
Id. at 845 (brackets and ellipses omitted). The first element
that an employee must prove for a 31 U.S.C. § 3730(h) retaliation
claim is "that the employee engaged in activity protected under
the statute[.]" Id. As to this first element, the Ninth Circuit
stated:
We have held that to come under the protection of the
anti-retaliation provision of the False Claims Act,
"[s]pecific awareness of the FCA is not required," but "the
plaintiff must be investigating matters which are
calculated, or reasonably could lead, to a viable FCA
action." [United States ex rel. ]Hopper[ v. Anton], 91 F.3d
[1261,] 1269 [(9th Cir. 1996)]. We reaffirm this standard
today and clarify that an employee engages in protected
activity where (1) the employee in good faith believes, and
(2) a reasonable employee in the same or similar
circumstances might believe, that the employer is possibly
committing fraud against the government.
Id. at 845 (emphases added); see also Wilkins v. St. Louis Hous.
Auth., 314 F.3d 927, 933 (8th Cir. 2002) (adopting the Moore test
in determining whether an employee engaged in protected activity
under the federal False Claims Act).
In reviewing a district court's grant of summary
judgment for the defendant employer, the Moore court held there
were genuine issues of material fact whether the plaintiff had
engaged in protected activity in reporting suspected fraud by his
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employer. Id. at 845-46. Considering the evidence in the case,
the Moore court concluded that "under the first prong of our
test, a reasonable jury could conclude that [plaintiff] believed
in good faith that [employer] was attempting to defraud the
government in violation of the False Claims Act." Id. at 846.
Fukumoto also cites Melchi v. Burns International
Security Services Inc., 597 F. Supp. 575 (E.D. Mich. 1984),
addressing Michigan's whistleblower's protection act,7 which is
materially similar to HRS § 378-62. 597 F. Supp. at 583-84. In
Melchi, the court stated:
In applying the Act as interpreted, the Court must determine
if a Whistleblowing plaintiff held a subjective good faith
belief that his employer had violated the law. In view of
the pervasive regulation of the nuclear power industry by a
host of state and federal agencies the Court feels that it
is eminently reasonable to believe that the destruction
and/or falsification of reports and records by the security
force would constitute a violation of a law, rule or
regulation. Thus, in the present case the Court has found
that plaintiff did hold a subjective belief that the
destruction or falsification of security records and reports
is a violation of a state or federal law, regulation or
rule. (Finding of Fact number 23) Accordingly, the Court
believes plaintiff has established the first element of his
prima facie case.
Id. at 583-84 (emphases added).
The State asserts the HWPA is intended to protect
employees who blow the whistle for the public good, citing Norris
v. Hawaiian Airlines, Inc., 74 Haw. 235, 842 P.2d 634 (1992). In
Norris, although not addressing the issue at hand, the Hawai#i
Supreme Court expressed:
Our review of the legislative history of the HWPA reveals
that the legislature intended to safeguard the general
7
The whistleblower provision cited in Melchi states, in relevant part:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee's
compensation, terms, conditions, location, or privileges of
employment because the employee, or a person acting on
behalf of the employee, reports or is about to report,
verbally, or in writing, a violation or a suspected
violation of a law or regulation or rule promulgated
pursuant to law of this state, a political subdivision of
this state, or the United States to a public body[.]
Michigan Compiled Laws § 15.362 (1984).
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public by giving certain protections to individual employees
who "blow the whistle" for the public good. See Senate
Stand. Comm. Rep. No. 1127, 1987 Senate Journal, at 1391–92
("providing protection to government employees and citizens
who are willing to 'blow the whistle' when they are aware of
ethical or other violations of law will help the State
maintain high standards of ethical conduct."); see also Hse.
Stand. Comm. Rep. No. 25, 1987 House Journal, at 1090.
74 Haw. at 261, 842 P.2d at 646 (emphases added).
First, we note there is no requirement articulated in
HRS § 378-62 or its legislative history that the report by an
employee must cite to the particular law, rule, ordinance, or
regulation being violated or suspected of being violated. See
HRS § 378-62; S. Stand. Comm. Rep. No. 1127, in 1987 Senate
Journal, at 1391-92 ("The purpose of this [whistleblower
protection] bill is to provide protection to employees in the
private and public sectors who report suspected violations of law
from any form of retaliation by their employers." (emphasis
added)). Indeed, that a report of a "suspected violation" is
protected conduct under HRS § 378-62 suggests that an employee
need not specify the particular law, rule, ordinance or
regulation at issue. Further, as noted in Crosby, the HWPA is a
remedial statute that should be construed liberally to accomplish
its purpose, which is to protect employees who report suspected
violations of law from any form of retaliation. Crosby, 76
Hawai#i at 341-42, 876 P.2d at 1309-10. We thus conclude the
absence of a law, rule, ordinance, or regulation being cited in
Fukumoto's reports to Matthews does not bar her HWPA claim. See
also Collins v. Beazer Homes USA, Inc., 334 F. Supp. 2d 1365,
1377 (N.D. Ga. 2004) (holding under federal Sarbanes-Oxley Act of
2002 there was a genuine issue of material fact whether plaintiff
engaged in protected activity and stating, "if Congress had
intended to limit the protection of Sarbanes–Oxley . . . to have
required complainants to specifically identify the code section
that they believe was being violated, it could have done so.").
Second, we are persuaded that the "reasonable good
faith" test set forth in Moore is appropriate for purposes of
addressing the first element of a claim under the HWPA. That is,
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an employee engages in protected activity under HRS § 378-62
when, in making (or in about to make) a report: (1) the employee
in good faith believes, and (2) a reasonable employee in the same
or similar circumstances might believe, that the employer is
possibly committing a violation of a law, rule, ordinance, or
regulation adopted pursuant to law of this State, a political
subdivision of this State, or the United States. See Moore, 275
F.3d at 845. This test is consistent with Norris in that it
provides protection under HRS § 378-62 to employees who "'blow
the whistle' for the public good." 74 Haw. at 261, 842 P.2d at
646.
In this case, viewing the evidence in the light most
favorable to Fukumoto, there is a genuine issue of material fact
as to whether Fukumoto had a reasonable good faith belief in
making the relevant EIRs and emails/reports to Matthews that her
employer was possibly committing violations or suspected
violations of HRS §§ 704-406(1) and 704-411(1)(a), which require
the State to provide detention or custody and "care[] and
treatment" to SOSRP clients. In other words, given the evidence,
a jury could conclude that Fukumoto, in reasonable good faith,
believed the issues and incidents she reported concerned the
proper detention, custody, care and treatment of SOSRP clients
and thus involved violations or suspected violations of the
State's statutory responsibility under applicable law.
We conclude the State did not meet its initial burden
on this issue to show there was no genuine issue of material
fact, by either presenting evidence negating this element of
Fukumoto's HWPA claim or demonstrating that Fukumoto would be
unable to carry her burden of proof at trial. Ralston, 129
Hawai#i at 57, 292 P.3d at 1287.
2. There is a genuine issue of material fact as to
whether Fukumoto suffered an adverse employment
action because she engaged in protected conduct.
The State asserts Fukumoto was not subjected to an
adverse employment action because she was never terminated or
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demoted, and did not have her wages or benefits significantly
reduced. Based on the record before us, Fukumoto has been
employed at SOSRP as a registered nurse, starting in 2011 in a
non-civil service position, and from 2013 in a civil service
capacity. Furthermore, since Fukumoto has been employed at
SOSRP, her performance has been rated as either "meets
expectations" or "exceeds expectations."
In Crosby, the Hawai#i Supreme Court acknowledged that
the terms "'compensation, terms, conditions, location, or
privileges of employment' are not defined in HRS chapter 378."
76 Hawai#i at 341, 876 P.2d at 1309. The Hawai#i Supreme Court
also acknowledged that a "broad reading of the term 'condition'
in the HWPA is in accord with the legislative intent[,]" which
the court noted was to provide protection to employees who report
suspected violations of law from "any form of retaliation by
their employers." Id. (citing S. Stand. Comm. Rep. No. 1127, in
1987 Senate Journal, at 1391-92) (emphasis added). Further, in
Black v. Correa, Civil No. 07-00299 DAE-LEK, 2008 WL 3845230 (D.
Haw. Aug. 18, 2008), the U.S. District Court for the District of
Hawai#i applied the Ninth Circuit's test for adverse employment
actions in Title VII cases to an HWPA claim, stating that "an
action is cognizable as an adverse employment action if it is
reasonably likely to deter employees from engaging in protected
activity." Id. at *11 (internal quotation marks omitted)
(quoting Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000)).8
Fukumoto asserts that within days of her email to
Matthews on March 13, 2012, the State discriminated and
retaliated against her. For instance, in her declaration,
8
In Crosby, the Hawai#i Supreme Court addressed the burden of proof in
establishing a causal connection between alleged retaliation and the
plaintiff's whistle blowing, stating "[t]he HWPA's legislative history
indicates that the legislature intended that the required burden of proof be
similar to that utilized in traditional labor management relations discharge
cases[,]" and referencing the burden under the National Labor Relations Act.
76 Hawai#i at 342, 876 P.2d at 1310. See also Furukawa v. Honolulu Zoological
Soc'y., 85 Hawai#i 7, 13, 936 P.2d 643, 649 (1997) (looking to federal court
decisions on Title VII employment discrimination cases for guidance in
employment discrimination case under Hawai #i Statute).
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Fukumoto attests she was required to attend "Staff Development
for skill building" training to address "effective communication"
based on an employee performance appraisal by Matthews on March
28, 2012, shortly after she submitted her written reports.
Fukumoto presented evidence that while the training was to be for
the unit or shift as a whole, Fukumoto was singled out as a
mandatory participant. Moreover, Fukumoto's supervisory duties
were "reduced pending completion of training and at [Matthews's]
discretion." An email from Matthews to HSH Personnel Management
Specialist Karen Hara (Hara) indicates that Fukumoto refused to
attend the training because "the Union said [she] didn't have to
go" and Fukumoto emailed her union agent indicating Matthews
stated he would abide by whatever the union and Hara decided.
Nonetheless, the record indicates that Matthews issued a written
reprimand on June 5, 2012, for Fukumoto's failure to attend the
training.
Fukumoto attests that on June 8, 2012, Matthews
reassigned her to the HSH nursing units. Fukumoto asserted to
her union that "she is not trained to work on the units" and she
attested that her "safety was not addressed" prior to the
reassignment. Despite evidence of emails between, inter alia,
Matthews, Hara, and HSH Associate Administrator William Elliott
indicating that Fukumoto was current on all mandatory training
for either SOSRP or the nursing unit, there is evidence that Hara
was "concerned about the liability should anything happen to
[Fukumoto] while she's re-assigned." Fukumoto also asserts that
records of her having taken mandatory training were false because
she was on leave approved by Matthews from June 2012 to October
2012. Moreover, the reassignment to the day shift purportedly
caused Fukumoto, who was her mother's caregiver during the day,
to take Family Medical Leave to care for her mother.
On June 29, 2012, Hara informed Fukumoto that she would
be temporarily assigned to the medical records office to assist
with the "backlog of chart reviews." Fukumoto claims she was not
provided orientation for the position and that she "lost valuable
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nursing experience, wage differentials, [and] holiday
overtime/ability to earn [Compensatory Time Off] time." In
addition, Fukumoto asserts her wages were intentionally withheld
for over five pay periods.
Examined in the light most favorable to Fukumoto, under
the applicable summary judgment standard, these employment
actions can be construed as adverse. Further, there are genuine
issues of material fact whether the alleged adverse actions were
caused by Fukumoto's reporting of incidents given the timing
between her reports and the subsequent alleged adverse actions.
See Griffin, 654 F. Supp. 2d at 1132 (noting temporal proximity
may be a factor in determining whether a causal connection
exists); see also Fonseca v. Sysco Food Servs. of Arizona, Inc.,
374 F.3d 840, 847 (9th Cir. 2004) ("A warning letter or negative
review . . . can be considered an adverse employment action.");
Ray, 217 F.3d at 1243 ("[L]ateral transfers, unfavorable job
references, and changes in work schedules . . . . are all
reasonably likely to deter employees from engaging in protected
activity."); Chan v. Wells Fargo Advisors, LLC, 124 F. Supp. 3d
1045, 1056 (D. Haw. 2015) (concluding there was a genuine issue
of material fact as to adverse employment action based on
evidence that employee was relocated and his compensation was
cut).
The State did not meet its initial burden of either
negating this element of Fukumoto's HWPA claim or demonstrating
that Fukumoto would be unable to carry her burden of proof at
trial. Ralston, 129 Hawai#i at 57, 292 P.3d at 1287.
3. The State provided evidence of legitimate,
nondiscriminatory reasons for its employment
actions.
In its motion for summary judgment, the State asserts
Fukumoto failed to establish a causal connection between the
protected conduct and the employment actions. "[A]n employer may
negate causation ex post facto by presenting evidence of other
reasons for [the adverse employment action] outside of the
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protected conduct[.]" Tagupa, 125 F. Supp. 3d at 1121 (internal
quotation marks omitted) (quoting Griffin, 654 F. Supp. 2d at
1132). Sufficient nondiscriminatory reasons capable of negating
causation may be satisfied by an employer's own explanation or an
employee's own insubordination. See Chan, 124 F. Supp. 3d at
1057 (concluding there were sufficient nondiscriminatory reasons
for the employee's relocation and reassignment based on the
employer's statements that the employer wanted a new employee
that worked "regular hours" and was more efficient).
In support of its motion for summary judgment, the
State provided evidence that Matthews's investigation of EIRs
against Fukumoto submitted by LPN Rubino and PMA Soriano resulted
in the March 28, 2012 appraisal, in which Matthews concluded that
Fukumoto "used inappropriate and derogatory language towards [PMA
Soriano]," some of which infringed on his privacy right and was
therefore unprofessional. Matthews further concluded this "was
not in keeping with the concept of a registered nurse serving in
the role of a leader" and Fukumoto was required to make
arrangements to attend staff development training on effective
communication.
As for the temporary reassignment, LPN Rubino informed
Matthews of an incident involving Fukumoto that Matthews
construed as allegations of workplace violence. Matthews states
that these allegations triggered a hospital practice of
temporarily removing Fukumoto to place distance from the
complaining employee (LPN Rubino) until an investigation could be
completed. As for Fukumoto's reassignment to the medical records
office, Hara attested:
[it] was in keeping with the nature of the temporary
transfer even though Fukumoto would not be required to
perform actual nursing duties because (1) she retained
her registered nurse position within the [SOSRP]
program; (2) she retained the compensation and
benefits of her position; (3) the assignment would be
of a limited duration because she submitted her
written response to the allegations [of workplace
violence], allowing the investigation to move forward;
and (4) the assignment respected her feelings towards
performing nursing duties in the hospital.
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Hara also attested the wage withholdings was due to "inadvertent
errors committed by clerical staff within the program [that] lead
to the unintentional withholding of Fukumoto's compensation."
Thus, it appears to have had no relation to Fukumoto's alleged
reporting. Within one month of Fukumoto raising the issue to
HSH, Fukumoto was paid all back wages that were due and owing to
her.
Given the evidence in the record, we construe the
State's reasons as legitimate and nondiscriminatory.
4. There is a genuine issue of material fact as to
whether the State's proffered reasons for its
actions were pretextual.
"A plaintiff may establish pretext by 'persuading the
court that a discriminatory reason more likely motivated the
employer or . . . by showing that the employer's proffered
explanation is unworthy of credence.'" Adams, 135 Hawai#i at 14,
346 P.3d at 83 (quoting Shoppe, 94 Hawai#i at 379, 14 P.3d at
1060). "If the plaintiff establishes that defendant's proffered
reasons were pretextual, the trier of fact may, but is not
required to, find for the plaintiff." Shoppe, 94 Hawai#i at 379,
14 P.3d at 1060. This is because, "[a]t all times, the burden of
persuasion remains on the plaintiff" to prove that the employer's
decision was discriminatory. Id. (citing Sam Teague, Ltd. v.
Hawai#i Civil Rights Comm'n, 89 Hawai#i 269, 279 n.10, 971 P.2d
1104, 1114 n.10 (1999)). "The timing of an adverse employment
action in relation to a report of harassment and complaint to a
supervisor can be sufficient to raise 'indirect evidence that
undermines the credibility of the employer's articulated
reasons.'" Patrick v. 3D Holdings, LLC, Civil No. 13-00638
JMS/KSC, 2014 WL 1094917, at *11 (D. Haw. Mar. 18, 2014) (quoting
Noyes v. Kelly Servs., 488 F.3d. 1163, 1171 (9th Cir. 2007)).
"In some cases, temporal proximity can by itself constitute
sufficient circumstantial evidence of retaliation for purposes of
both the prima facie case and the showing of pretext." Id.(internal quotations omitted) (quoting Dawson v. Entek Int'l, 630
F.3d 928, 937 (9th Cir. 2011)).
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Here, in spite of the State's legitimate reasons for
the employment actions, the temporal proximity between Fukumoto's
protected conduct and the State's alleged retaliatory actions
creates a genuine issue of material fact as to whether the
complaints against Fukumoto by LPN Rubino and PMA Soriano were a
pretext to single out Fukumoto for mandatory training and
subsequent reassignment as a result of her earlier reports
against those same co-workers.
Given the extensive record in this case, in regard to
this issue, even if the State has evidence to rebut a prima facie
case by Fukumoto, the record does not establish that Fukumoto
would be unable to demonstrate that the State's proffered reasons
for its actions were pretextual. In other words, viewing the
evidence in the light most favorable to Fukumoto, the State did
not negate that Fukumoto could show pretext nor did it
demonstrate that Fukumoto would be unable to carry her burden at
trial of showing that the State's proffered reasons were
pretextual. Ralston, 129 Hawai#i at 57, 292 P.3d at 1287.
III. Conclusion
Based on the foregoing, the Circuit Court erred in
granting summary judgment for the State. Thus, the "Judgment"
entered on October 6, 2016, by the Circuit Court of the First
Circuit, is vacated. The case is remanded for proceedings
consistent with this decision.
DATED: Honolulu, Hawai#i, February 28, 2022.
On the briefs: /s/ Lisa M. Ginoza
Chief Judge
Shawn A. Luiz,
for Plaintiff-Appellant /s/ Katherine G. Leonard
Associate Judge
James E. Halvorson,
Nelson Y. Nabeta, /s/ Sonja M.P. McCullen
Charlene S.P.T. Murata, Associate Judge
Deputy Attorneys General,
Department of the Attorney
General, for Defendants-
Appellees
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