Adams v. CDM Media USA, Inc.

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Electronically Filed
Supreme Court
SCWC-12-0000741
24-FEB-2015
09:45 AM
IN THE SUPREME COURT OF THE STATE OF HAWAIʻI
---o0o---
CHRISTIE ADAMS, Petitioner/Plaintiff-Appellant,
vs.
CDM MEDIA USA, INC., Respondent/Defendant-Appellee.
SCWC-12-0000741
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-12-0000741; CIV. NO. 11-1-0931)
February 24, 2015
McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE ALM, IN PLACE OF
ACOBA, J., RECUSED, WITH RECKTENWALD, C.J., CONCURRING AND
DISSENTING, WITH WHOM NAKAYAMA, J., JOINS
OPINION OF THE COURT BY POLLACK, J.
I. Background
Christie Adams (Adams) filed a complaint in the
Circuit Court of the First Circuit (circuit court) alleging that
she had been subjected to employment discrimination in violation
of Hawaiʻi Revised Statutes (HRS) § 378-2. The discriminatory
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act claimed by Adams was CDM Media, USA, Inc.’s (CDM) decision
not to hire Adams due to her age. CDM’s motion for summary
judgment was granted by the circuit court on the basis that
Adams had failed to demonstrate that CDM’s reasons for not
hiring her were pretextual. In a summary disposition order, the
Intermediate Court of Appeals (ICA) affirmed the holding of the
circuit court, and Adams sought review of the ICA judgment in
this court.
For the reasons set forth below, we hold that summary
judgment was improperly granted as CDM did not satisfy its
burden to articulate a legitimate, nondiscriminatory reason for
declining to hire Adams, and therefore pretext was not required
to be considered by the circuit court. Accordingly, we vacate
the judgments of the ICA and the circuit court and remand the
case to the circuit court for further proceedings.
A. Employment action and HCRC decision
On January 12, 2009, CDM published an online
solicitation seeking applicants for its International Media
Sales Executives positions. CDM described the International
Media Sales Executive position as “an inside [telephone] sales
person job that . . . requires 200 to 250 cold calls a day.”
The relevant portions of the advertisement stated as follows:
We’re looking for motivated, hungry people to join our ever
expanding sales team in the role of advertising sales. We
offer recognized training to build upon your formal
education/experience and teach you the business of
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advertising and summit sales in order for you to progress
and build your career quickly.
We offer great base salary, health/dental insurance and
very attractive bonus scheme to ensure we have a high level
of achievers applying (Realistic OTE 1st year- $70K).
The heart of CDM Media is based on a commitment to
innovation, so if you are looking for a business
environment that’s conducive to creativity and challenge,
please inquire about this unique advertising sales
opportunity.
Here are a few key benefits to working at CDM Media:
 Competitive starting salary + aggressive commission and
bonus package (Realistic first year OTE 70k)
 First-class Sales Training Program from the best in the
industry
 Lucrative sales prizes for top-performers
 Generous paid time off programs  Comprehensive training
sessions
 Health/Dental benefits
 Career development opportunities
 Referral bonuses for bringing in new sales talent
 Being a contributor to REAL growth
Requirements
 Sales experience preferred
 Detail-oriented and organized
 Strong communication skills
 Willingness to take on new challenges
 MOST IMPORTANTLY, a true determination to succeed!
(Emphasis in original). On February 11, 2009, a local newspaper
posted a story stating that CDM was looking to hire “energetic
and driven professionals” and was planning to put them “through
an eight-week comprehensive training course.” Adams saw this
article and online advertisements related to the position.1
CDM’s hiring procedure at the time was as follows:
1
Adams also saw online advertisements that stated CDM was seeking
“youthful” employees. Adams submitted these advertisements in response to
CDM’s Motion for Summary Judgment. CDM denied placing such advertisements.
The circuit court found the advertisements to be inadmissible hearsay.
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a. Brandon Bera, CDM HR Director, calls all applicants
to speak for a 5 minute phone screening with very basic
questions regarding what interested them about CDM Media.
It is then determined who will be brought in for a first
round face-to-face interview.
b. Brandon Bera, CDM HR Director, hosts the first round
of interviews and reviews all candidates that came in for
the interview and narrows down the list of potential
candidates to meet with the CEO, Glenn Willis. This is
meant to be an interview focusing on experience,
personality, characteristics, professional appearance of
the candidate, and to determine if they seem like team
players. Usually, there are hundreds of applicants that
are narrowed down to around 4-5 dozen that will be met in
person.
c. Those select few that stick out from the first round
interview are then moved on to the second round where they
will meet with CDM’s CEO, Glenn Willis, and often times
CDM’s VP of Sales, Nick Backhouse in the same day. This is
meant to focus on more in-depth personality characteristics
to and detailed questions about experience to make sure
what was said in the first interview aligns to the second
interview.
d. Those that impress all parties involved in the hiring
process (CDM’s CEO and President Glenn Willis, HR Director
Brandon Bera and sometimes Sales Vice President/Director
Nick Backhouse if reassurance is needed) are then made an
offer within a couple weeks of the final interview.
On February 13, 2009, Adams sent an email to CDM Human Resources
Director, Brandon Bera (Bera), applying for the position. The
email included a list of awards Adams won while working for
Verizon in Hawaiʻi, which included awards for “inside/telephone”
sales and “outside” sales and at least one award exclusively for
telephone sales:
President’s Award for Professional Salesmanship, Premise
Sales Representative, for the Calendar Year 2000 This award
is presented to the top outside sales representative (of
about 23 outside sales reps) in Verizon Information
Services’ Honolulu Division based 80% on customer growth
and 20% on customer satisfaction.
Hall of Fame Award for the Calendar Year 2000 One of the
most coveted and prestigious of all Verizon sales awards,
this award is presented to outside and telephone sales
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representatives who achieve a net increase of 25% for two
consecutive years. . . .
1999-2000 Silver Prize Tip [sic] Winner to Montreal and
Quebec City, Canada During the one-year period of the
contest, winning sales representatives must achieve a
minimum of 115% to sales net goal performance and a minimum
of 100% to performance selling items on superpages.com,
must participate in at least one Quality Improvement Team
(QIT), and must have an error percentage less than 1/2 of
one percent of all advertising revenue handled. Of about 23
telephone sales reps and 23 outside sales reps, I was the
only sales rep in the Hawaii Division to win this prize
trip, which was based upon meeting all four goals in the
Hawaii marketplace.
Top Producer, Premise Sales Reps, Kauai 2000 Telephone
Directory Canvass For 195.51% performance to goal (of about
23 outside sales reps).
ZEAM Award for the Calendar Year 1999 This award is
presented to sales reps who achieved or exceeded their
annual sales goal with zero errors or mistakes over a one-
year period of time. . . .
Top Producer, Telephone Sales Reps, Big Island 1999
Telephone Directory Canvass For 217% performance to goal
(from about 23 telephone sales reps).
Eagle Award, 1999 This award is given to sales
representatives who perform at 100% or higher consistently
for 26 weeks in a row.
(Underlining added). On February 18, 2009, Bera had a five-
minute phone call with Adams. After the call, Adams sent Bera
another email, this one including Adams’ professional resume and
a list of her computer, clerical, and office skills, which
stated Adams had “used computers on a daily basis for the past
25 years.”
The resume attached to this second email stated that
Adams had “[m]ore than 20 years of full-time, hands-on
experience in nearly all aspects of sales and marketing,
including inside and outside sales.” Adams had received a B.A.
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from Stanford University and “complet[ed] additional college
courses taken in Switzerland and at the University of Hawaiʻi at
Manoa.”
Adams’ resume indicated that from 1984 to 1986, she
was the Executive Director of The Hawaiʻi Society/The American
Institute of Architects, where she managed the affairs of the
550-member non-profit. From 1986 to 1998, Adams was the
President of Christie Adams & Associates Marketing and Public
Relations, where she worked directly with many clients,
including owners of businesses, executives of nonprofits and
governmental managers, to develop public relations programs and
organize special events. From September 1998 to 2003, Adams
worked for Verizon selling advertising in Verizon’s print and
online Yellow Pages, contacting customers in person and by
phone. While working at Verizon, Adams won the sales
achievement awards described in her email to Bera.
From May 2004 to September 2004, Adams was a Loan
Officer with Hawaii HomeLoans where she met with prospective
home loan clients “over the phone and/or in person.” Lastly,
from October 1, 2004, to May 15, 2007, Adams’ resume lists her
as a “Caregiver for Terminally-ill parent” and, from August 2007
to August 2008, as a “Home Organizer for the Lillian B. Adams
Trust.”
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On or about February 19, 2009, Adams was interviewed
in person by Bera. On the date of the interview Adams was 59
years old. As described by Adams, “[a]t the end of the
interview I asked Bera what the next step would be and he seemed
hesitant to pass me along for the next interview. He said Glenn
Willis would decide.” Glenn Willis (Willis) was the President
and Chief Executive Officer (CEO) of CDM at the time. The only
notes from the interview were notations made on an attachment to
Adams’ first email, one of which was a box drawn around
“Verizon/Yellow Pages” with the words “1/2 inside” and “1/2
outside” written beside it.2
Adams was not asked to return for the second interview
and received no other contact from CDM until March 1, 2009. On
that date, Adams received a rejection letter from CDM. On March
30, 2009, CDM hired four persons for the position sought by
Adams, who ranged in age from 24 to 38. On May 15, 2009, CDM
hired three more persons for the position, ranging in age from
23 to 40. By October 19, 2009, only the two youngest of the new
hires were still employed by CDM.3
2
CDM admitted that the notes on Adams’ February 13, 2009 email
were “handwritten notes relating to the interview.”
3
CDM included in its Respondent’s Answer to Charge of
Discrimination Filed on August 27, 2009 to the HCRC a list of all employees
hired around the time Adams was interviewed and a list of “current
employees.”
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On August 27, 2009, Adams filed a Charge of
Discrimination against CDM with the Hawaiʻi Civil Rights
Commission (HCRC). In her submission to HCRC, Adams stated, “I
believe that if not for my age I would have been hired for the
International Media Sales Executive position.” CDM filed
“Respondent’s Answer to Charge of Discrimination Filed on August
27, 2009” (Answer). The Answer stated, inter alia, that sales
executives in the position for which Adams applied made “200 to
250 cold calls a day” and that one criteria CDM used to evaluate
candidates was whether or not they had “[e]xperience in dealing
with VP and C-level executives in Fortune 500 organizations.”
The Answer also included a list of all employees hired around
the time Adams was interviewed and a list of “current
employees.” On February 9, 2011, the HCRC issued a Notice of
Dismissal and Right to Sue Letter.
B. Circuit Court
On May 10, 2011, Adams filed a complaint in the
circuit court. The complaint alleged that CDM had violated HRS
§ 378-2 by discriminating against Adams due to her age. Adams
alleged CDM posted advertisements seeking applicants who were
“youthful” and “recent college graduates.” Adams claimed she
was entitled to loss of income because she was not hired as a
result of discrimination and “was not able to become employed
for a long period of time despite her efforts to find
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employment.” Adams requested an order that CDM hire her, and
she also sought general damages, special damages (such as lost
wages, punitive damages, and litigation costs), and attorney’s
fees, as well as other appropriate relief.
On June 20, 2011, CDM filed an answer to the
complaint. CDM denied that Adams was qualified for the
position, denied placing any ads for “youthful” people or
“recent college graduates” to join its sales team, and denied
that Adams was not hired because CDM “was advertising for
‘youthful’ applicants and ‘recent college graduates.’”
On February 21, 2012, CDM filed a motion for summary
judgment (MSJ). CDM claimed it was “entitled to summary
judgment on [Adams’] age discrimination claim because the record
lacked substantial evidence that either: (1) Adams was qualified
for the sales position, or (2) CDM Media’s reasons for not
hiring Adams for the sales position were a pretext for age
discrimination.” The only relevant document attached to the MSJ
is a declaration from Willis (Willis’ Declaration or
Declaration). In his Declaration, Willis states that it was his
decision not to hire Adams in February 2009. Willis declares it
was his “belief” that Adams was not qualified for the position.
Willis also states that he “did not consider any criteria stated
in any advertising or posting in making my decision not to hire”
Adams. (Emphasis added).
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The content of Willis’ Declaration is as follows:
1. I am the President and CEO of CDM Media USA, Inc.
2. CDM Media provides business to business technology
marketing services. In particular, it provides global
marketing assistance to information technology
executives from Fortune 1000 companies by way of (1)
web products, (2) interactive media campaigns, (3)
workshops and (4) a variety of invitation-only custom
technology marketing events. All of these products are
aimed at an audience of C-Level corporate executives
(for example CEOs, CIOs and CFOs) with information
technology responsibility for their companies.
3. I decided not to hire Plaintiff Christie Adams in
February of 2009.
4. The inside sales person job that Ms. Adams applied for
involves cold calling C-Level executives of Fortune
1,000 companies responsible for information technology,
can be tedious and requires a team player.
5. It was my belief that [Adams] was not qualified for the
job because:
a. She had no sales experience in the prior five
years;
b. As far as I understood, most of her recent
(previous 10-15 years) sales experience was in
publishing and/or selling phone book advertising
which incorporated outside sales and face to face
communication;
c. As far as I understood, she had little or no
sales experience that involved selling to C-Level
corporate executives of Fortune 1,000 companies;
and
d. I was advised that she had said that she disliked
tedious work.[4]
6. The company did not hire any younger applicants with
equal or lower qualifications for the position.
7. I was not involved in creating, reviewing or approving
any advertising or posting for the position for which
[Adams] applied, nor was I aware of the content of such
advertising or posting, and I did not consider any
criteria stated in any advertising or posting in making
my decision not to hire [Adams].
4
Adams disputed making such a statement.
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(Emphases added).
Citing to Willis’ Declaration, CDM argued the record
lacked substantial evidence of Adams’ qualification for the
position. CDM made four arguments to establish that Adams was
not qualified: (1) Adams had no sales experience in the five
years prior to applying for the CDM position; (2) “very little
of what Adams did more than five years before she applied for
the inside sales job at CDM Media had anything to do with that
job, because she spent much of her time before her more than
five year hiatus as an outside sales person”; (3) Adams’ “prior
sales experience did not involve selling to C-level executives
of Fortune 1,000 companies”; and (4) “the work at CDM Media can
be tedious” and Adams had expressed a dislike of tedious work.
CDM maintained that it was justified in considering recent sales
experience as an important job qualification because Adams had
“no relevant work experience” “that [was] sufficient ground to
hold that she was not qualified for the sales position.”
CDM argued further that Adams failed to establish that
CDM’s reasons for not hiring her were a “pretext” for
discrimination. CDM contended that to establish pretext, Adams
must show that CDM’s explanation was “unworthy of belief,” “a
dishonest explanation,” or “deceit used to cover one’s tracks.”
CDM claimed that “Willis’ honest belief in the reasons he had
for deciding that Adams was not qualified prevents Adams from
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showing pretext.” CDM also claimed that “[n]o one who was hired
was similarly unqualified.” Even if CDM misjudged Adams’
qualifications, CDM contended that it had discretion in making
hiring decisions and “[i]n order to overcome this discretion,
Adams would have to show that she was ‘clearly superior’ or
‘significantly’ or ‘markedly’ better than chosen candidates.”
CDM argued that Adams made no such claims.
On June 27, 2012, Adams filed a memorandum in
opposition to the MSJ. Adams attached a declaration to her
submission, stating “I had provided Bera with sufficient
information of my qualifications before and during the phone
interview to set up an in-person interview, and at the in-person
interview.” Adams noted, “CDM did not state that job applicants
needed to be currently employed in sales.” Adams represented
that none of the “online classified ads placed by Defendant for
employees that I saw” mentioned that the position required sales
experience selling to C-Level corporate executives of Fortune
1,000 companies. Likewise, Adams declared this “area of
expertise” was not “mentioned to me during my telephone
interview by Bera, nor during my in-person interview with Bera.”
Adams also declared that, contrary to Willis’
statement, her sales experience in the ten to fifteen years
prior to the interview was not limited to outside, face-to-face
sales of printed phone book advertising, but also included
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“online, selling websites and links for customers,” as well as
“print and online advertising full-time in an inside sales
position over the phone from September of 1998 to about May of
2000, when our management promoted me into outside sales.”
Adams stated that she possessed twenty-five years of “computer
experience” at the time of the interview.
Adams additionally set forth in her declaration that
she “previously had dealt with many high-level executives dating
back to my first full-time job in 1974.” Adams stated, “[e]ven
though I was well qualified for the position, was a top sales
associate when employed by the yellow pages, had won numerous
sales awards there, and had traveled all over the world, I feel
that CDM did not hire me because I was not ‘young’ enough for
CDM Media.”
In Adams’ memorandum in opposition, she argued first
that it was “obviously not true” that she was unqualified for
the job as she “was highly qualified for the job due to her
experience in sales.” Adams maintained that “the job did not
require sales experience,” and thus the argument that Adams did
not have the required sales experience is “pure pretext to cover
age discrimination.” Adams also denied stating that she did not
like tedious work.
On June 29, 2012, CDM filed a reply. CDM contended
that Willis’ Declaration supported the fact that CDM had
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“presented evidence that it did not hire younger applicants than
Adams who had qualifications equal to or lower than hers.” CDM
maintained that Adams presented no admissible evidence “that any
person CDM Media hired is younger and/or equally or less
qualified than Adams.”
On July 5, 2012, a hearing was held on the MSJ. The
court explained that “the question in the Court’s mind boiled
down to the third prong of the McDonnell Douglas test.” The
court’s view was that Adams had not raised a genuine issue of
material fact with regard to pretext.
Adams responded that she did not need to prove pretext
because CDM had not satisfied its burden of showing that it had
legitimate nondiscriminatory reasons not to hire Adams. CDM
replied that the five-year gap in Adams’ work experience was a
sufficient nondiscriminatory reason not to hire Adams. Adams’
counsel countered that the five-year gap was irrelevant because
Adams “was a good, an excellent, a terrific, a fantastic
salesperson. . . .” Counsel noted, “[y]ou know, this is not
rocket science. You get on the phone. You have a very good
personality. You know what the script is to talk to people
about, which is provided by the company. So how does that have
any relationship to a decision not to hire her?”
Adams maintained that CDM’s contention that she said
she did not like “tedious” work was not only false but was also
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“created to substantiate their pretext for not hiring her.”
Adams argued that although Willis stated the job required a
“team player,” “he didn’t say anything about why [Adams was] not
a team player.”
In response to the court’s specific inquiry into what
Adams’ arguments were concerning pretext, Adams argued the
following: (1) the contentions that she did not have sales
experience for five years or experience calling C-level
executives were both pretext for discrimination because the
posted job advertisements did not state that sales experience or
experience in calling executives was required; (2) the “tedious
work” comment was clearly a material issue of fact as anyone who
heard such a comment would not hire a person for the job, and
Willis based his decision on that comment; and (3) no evidence
was presented that Adams was not a team player. Adams concluded
that material issues of fact existed and that summary judgment
was inappropriate.
The circuit court orally ruled that, under McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), Adams had made a
prima facie case of discrimination: “This Court, under the
pertinent McDonnell Douglas test . . . concludes that the
plaintiff did meet their initial burden of establishing the
prima facie showing.” Thus, the burden shifted to the employer,
and “[t]he employer, based on the paper submitted to the Court,
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did establish legitimate nondiscriminatory reason [sic] for not
hiring the plaintiff.” The circuit court concluded that Adams
“did not raise triable issues of material fact as to the
employer’s reason that the non-hiring was pretextual.”
Concerning the “tedious work” comment, the circuit
court ruled “there may be a material – there may be a disputed
fact there. But in this Court[’s] view, that alone is not
enough to meet plaintiff’s burden, once we hit the third prong
of the McDonnell Douglas test.”
Concerning Adams’ argument that the persons hired
instead of Adams “had no sales experience, or sales experience
that was less than that of the plaintiff,” the circuit court
ruled “all that’s submitted in support of that assertion is her
own declaration.” The circuit court viewed that evidence as
“not admissible.” Accordingly, the circuit court granted
summary judgment in favor of CDM.
The circuit court did not make separate findings of
fact and conclusions of law. The July 24, 2012 Order Granting
Defendant’s Motion for Summary Judgment Filed February 21, 2012,
affirmed the circuit court’s oral ruling.
[T]he [circuit court] finds and orders as follows:
That [Adams] has met her burden of showing a prima facie
case of age discrimination. That [CDM] has met its burden
to articulate a legitimate nondiscriminatory reason for not
hiring [Adams]. That the burden therefore shifted to
[Adams] to demonstrate [CDM’s] reasons were perpetual.
That [Adams] failed to raise a genuine issue of material
fact as to whether [CDM’s] reasons were pretextual. That
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[CDM’s MSJ] should therefore be granted and [Adams’]
Complaint dismissed.
Also on July 24, 2012, the circuit court entered its final
judgment in favor of CDM. On August 23, 2012, Adams filed a
timely notice of appeal to the ICA.
C. Appeal to the ICA
On December 26, 2012, Adams filed her Opening Brief
with the ICA contending that the trial court erred in granting
summary judgment in favor of CDM. Adams requested the ICA
reverse the circuit court’s decision and remand for trial.
Adams first argued that “CDM did not meet its initial
burden of establishing a legitimate, nondiscriminatory
justification for not hiring [Adams].” Adams contended that
Willis’ statements concerning CDM not hiring any younger,
equally or less qualified individuals than Adams, and “Adams did
not have enough sales experience for the job,” “are conclusory
statements not supported by evidence.” Adams maintained that
she had no “duty to rebut these statements until the statements
themselves had been properly supported by evidence.” Adams also
maintained that “Willis’ conclusory statements that Adams didn’t
measure up should have been supported by the resumes of the
individuals who were hired.”
On April 15, 2013, CDM filed its Answering Brief. CDM
reasserted its contention that Adams was not qualified for the
position. CDM argued that Adams “[i]n particular, [] failed to
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establish the second element for a prima facie case, i.e., that
she was qualified for the position for which she applied.” CDM
maintained that it had articulated a legitimate,
nondiscriminatory reason for not hiring Adams. Relying on
Willis’ Declaration, CDM maintained the legitimate reason was
that:
Willis decided that [Adams] was not qualified for the job
because [Adams] had no sales experience in the prior five
years. Willis understood that [Adams’] recent sales
experience (the previous 10-15 years) was in publishing and
selling phone book advertising which involved outside sales
and face to face communication. Willis understood [Adams]
had little or no sales experience that involved selling to
C-level executives of Fortune 1,000 companies. Willis was
advised that [Adams] said that she disliked tedious work.
Furthermore, CDM argued it “was entitled to use subjective
hiring criteria.” CDM maintained that “contrary to [Adams’]
contentions, CDM does not have the burden of proving that the
persons it hired were more qualified than [Adams].” CDM argued
that it could “appropriately consider factors not listed in the
advertisement” in making hiring decisions.
D. ICA decision
On October 18, 2013, the ICA issued its Summary
Disposition Order (SDO). The ICA held that CDM stated a
legitimate nondiscriminatory reason for not hiring Adams,
pursuant to McDonnell Douglas. The ICA found that “Adams did
not produce persuasive, admissible evidence that CDM’s reasons
were pretextual and thus failed to satisfy her burden under
McDonnell Douglas.” Thus, the ICA affirmed the circuit court’s
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rulings. Aside from the introductory paragraphs, the ICA’s
decision was as follows:
Adams was 59 years old when CDM declined her application to
a sales position in their Honolulu office. CDM stated that
its decision was based on Adams’ lack of recent and
relevant work experience in inside sales to high level
corporate executives in Fortune 1,000 companies. By
articulating this “legitimate, nondiscriminatory reason”
for refusing to hire Adams, CDM satisfied its burden under
the pertinent McDonnell Douglas test for age
discrimination. Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368,
378, 14 P.3d 1049, 1059 (2000) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973)); (holding modified by
Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)); and
(holding modified by Wilmot v. Forest City Auto Parts, 2000
WL 804616 (Ohio Ct. App. Jun. 22, 2000)). Adams did not
produce persuasive, admissible evidence that CDM’s reasons
were “pretext” and thus failed to satisfy her burden under
McDonnell Douglas. Shoppe, 90 Hawaiʻi at 378-79, 14 P.3d at
1059-60. Accordingly, the circuit court concluded that
Adams “did not raise triable issues of material fact as to
[CDM’s reasons for not hiring her]” and granted summary
judgment for CDM.
Therefore,
IT IS HEREBY ORDERED that the July 24, 2012
Final Judgment granting the July 24, 2012 “Order Granting
Defendant’s Motion For Summary Judgment Filed February 21,
2012” is affirmed.
Adams v. CDM Media USA, Inc., No. CAAP-12-0000741, 2013 WL
5707278 (App. Oct. 18, 2013) (SDO). The ICA issued its final
judgment on November 21, 2013.
E. Application for Writ of Certiorari
On December 23, 2013, Adams filed her Application for
Writ of Certiorari (Application).5 Adams presented two questions
for decision:
5
CDM did not file a response to the Application.
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A. Whether the [ICA] committed a grave error of law or
fact in affirming the Circuit Court grant of summary
judgment?
B. Whether the decision of the [ICA] contains
inconsistencies with those of this court of a magnitude
dictating the need for further appeal?
Adams maintains, inter alia, that “CDM failed to meet
its initial burden of establishing a legitimate
nondiscriminatory justification for not hiring Adams.” Adams
contends that the evidence, viewed in the light most favorable
to her, “leads to the conclusion that Willis did not even make
the decision not to hire Adams.” Adams argues that “it was
actually Bera who decided not to hire Adams as it would have
been impossible for Willis to hire Adams without having
interviewed her.”6 Adams requests that this court review the
ICA’s affirmation of the circuit court’s decision.
II. Standard of Review
“We review a circuit court’s award of summary judgment
de novo under the same standard applied by the circuit court.”
Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368, 376, 14 P.3d 1049,
1057 (2000) (alteration omitted) (quoting Amfac, Inc. v. Waikiki
6
Adams argues further that, under a “cat’s paw theory,” even if
Willis was the ultimate decision-maker and held no discriminatory animus
toward Adams, she could still prove discrimination by CDM if the ultimate
adverse employment action was influenced or motivated in some way by the bias
of an employee, such as Bera, who contributed to the decision. Adams argues
that “to establish a legitimate nondiscriminatory reason for rejecting Adams’
application, CDM was required to submit a declaration by Bera explaining why
he did not forward Adams[’] application on to Willis for further review.”
Thus, Adams concludes this failure to establish a lack of discriminatory
animus on the part of Bera was sufficient reason to deny summary judgment in
favor of CDM.
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Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22 (1992)).
“[S]ummary judgment is appropriate if the pleadings,
depositions, answers to interrogatories, and admissions on file,
together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law.” Id. “A fact is
material if proof of that fact would have the effect of
establishing or refuting one of the essential elements of a
cause of action or defense asserted by the parties.” Id.
“[T]he evidence must be viewed in the light most favorable to
the non-moving party.” Id.
III. Discussion
A. HRS Chapter 378 and the Shoppe-McDonnell test
HRS § 378-2(1)(A) (1999) states, “It shall be an
unlawful discriminatory practice: [] Because of . . . age . . .
[f]or any employer to refuse to hire . . . any individual.”7
In enacting Revised Laws of Hawaiʻi (RLH) § 90A-1
(1963), the precursor to HRS § 378-2, HRS Tables of Disposition,
7
HRS § 378-2(1)(A) (1999) states in full:
It shall be an unlawful discriminatory practice:
(1) Because of race, sex, sexual orientation, age,
religion, color, ancestry, disability, marital status, or
arrest and court record:
(A) For any employer to refuse to hire or employ or to bar
or discharge from employment, or otherwise to discriminate
against any individual in compensation or in the terms,
conditions, or privileges of employment . . . .
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at 8 (1968), the legislature stated that the purpose of the bill
was
to protect and safeguard the right and opportunity of all
persons to seek, obtain, and hold employment or membership
in a labor organization without discrimination or
abridgement on account of race, sex, age, religion, color
or ancestry. It is not the intent of this bill to tell an
employer whom to hire, but to declare it to be unlawful for
an employer to refuse to employ, or to discharge from
employment, any individual because of race, sex, age,
religion, color or ancestry, nor is it the intent of this
bill to interfere with management or an employer’s
prerogative to select the best qualified person for any
given position in accordance with established occupational
qualifications that are applied equally to all persons.
S. Stand. Comm. Rep. No. 573, in 1963 Senate Journal, at 866
(emphases added) (hereinafter 1963 Senate Journal); see 1963 Haw.
Sess. Laws Act 180, § 1 at 223. The purpose of the bill is to
“afford[s] all persons equal opportunities in employment . . . ,
with the qualifications of the applicants being the sole test in
selecting employees.” 1963 Senate Journal at 866.
HRS Chapter 378 endorses an employer’s authority to
decline to hire employees based on legitimate job
qualifications. That chapter does not “[p]rohibit an employer
. . . from refusing to hire . . . any individual for reasons
relating to the ability of the individual to perform the work in
question.” HRS § 378-3(3) (Supp. 1999) (emphasis added).
Therefore, when hiring employees, an employer may consider any
reason related to the ability of an individual to perform the
work in question, but the employer is not permitted, subject to
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exceptions not relevant to this case,8 from considering age, as
well as the other categories set forth in HRS § 378-2(1).
A plaintiff can prove age discrimination “by adducing
circumstantial evidence of discrimination.”9 Shoppe, 94 Hawaiʻi
at 378, 14 P.3d at 1059. When analyzing a claim of age
discrimination relying on circumstantial evidence, this court
has set forth a three-step analysis, modifying the test adopted
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
Shoppe, 94 Hawaiʻi at 378-79, 14 P.3d at 1059-60. “First, the
plaintiff must establish a prima facie case of discrimination by
demonstrating, by a preponderance of the evidence, the following
four elements: (1) that plaintiff is a member of a protected
class; (2) that plaintiff is qualified for the position for
which plaintiff has applied . . . ; (3) that plaintiff has
8
HRS § 378-3 provides, inter alia, that, the provisions of Part 1
of HRS Chapter 378 will not: repeal any law, prevent employers from
establishing “bona fide occupational qualifications,” affect the operation of
retirement plans, prohibit religious organizations from preferring
individuals of the same religion, conflict with security regulations of the
United States or the State, require unreasonable structural changes or
expensive equipment alterations to accommodate a person with a disability,
prohibit schools from considering criminal convictions, prohibit financial
institutions from considering any criminal offense involving dishonesty or a
breach of trust, preclude any employee from bringing a civil action for
sexual harassment or sexual assault, or require an employer to accommodate
the needs of a nondisabled person associated with a person with a disability.
See HRS § 378-3.
9
“Because an employer who discriminates is unlikely to leave a
smoking gun attesting to a discriminatory intent . . . a victim of
discrimination is seldom able to prove his claim by direct evidence, and is
usually constrained to rely on circumstantial evidence.” McMillan v.
Examination Mgmt. Servs., Inc., No. 94 CIV. 2229 LAP, 1996 WL 551725
(S.D.N.Y. Sept. 27, 1996) (internal quotation marks omitted).
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suffered some adverse employment action . . . ; and (4) that the
position still exists.”10 Id. at 378, 14 P.3d at 1059.
In the second step, “[o]nce the plaintiff establishes
a prima facie case of discrimination, the burden of production
shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action.”
Id. “The employer’s explanation must be in the form of
admissible evidence and must clearly set forth reasons that, if
believed by the trier of fact, would support a finding that
unlawful discrimination was not the cause of the challenged
employment action.” Id. “Although the burden of production is
shifted to the employer, the ultimate burden of persuading the
trier of fact that the employer intentionally discriminated
against the plaintiff remains at all times with the plaintiff.”
Id. at 378-79, 14 P.3d at 1059-60 (alteration omitted) (internal
quotation marks omitted) (quoting Texas Dep’t of Cmty. Affairs
v. Burdine, 450 U.S. 248, 253 (1981)).
In the third step, “if the employer rebuts the prima
facie case, the burden reverts to the plaintiff to demonstrate
10
The fourth element of the McDonnell Douglas prima facie analysis
requires proof “that, after [the complainant’s] rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973) (emphasis added). Shoppe does not require the claimant to
provide proof of the qualifications of the applicants that the employer
continued to seek for the position. Shoppe, 94 Hawaiʻi at 378, 14 P.3d at
1059.
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that the defendant’s proffered reasons were ‘pretextual.’” Id.
at 379, 14 P.3d at 1060. 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.” Id.
B. Prima facie case
In the present case, Adams clearly established a prima
facie case of discrimination and therefore satisfied the first
step of the Shoppe-McDonnell standard.
At the hearing on the motion for summary judgment, the
circuit court made a specific finding that Adams established a
prima facie case, thus expressly determining that Adams was
qualified for the position. “This Court . . . concludes that
the plaintiff did meet their [sic] initial burden of
establishing the prima facie showing.” The court reiterated
this finding in the written order granting the MSJ: “the
[circuit court] finds and orders as follows: That [Adams] has
met her burden of showing a prima facie case of age
discrimination.”
The record amply demonstrates that Adams clearly
satisfied all four elements of the first prong of the Shoppe-
McDonnell test. In its Answering Brief to the ICA, CDM argued
that Adams “[i]n particular, [] failed to establish the second
element for a prima facie case, i.e., that she was qualified for
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the position for which she applied.” CDM did not contest the
first, third, and fourth requirements of Adams’ prima facie
case.
In any event, establishment of the first, third, and
fourth elements are beyond dispute. First, Adams was fifty-nine
years old at the time when she applied with CDM, so she is part
of a protected class.11 As to the third element, Adams suffered
an adverse employment action when CDM decided not to hire her.
In regard to the fourth element, the position continued to exist
after she received a rejection letter on March 1, 2009, because
later that year CDM hired seven persons as International Media
Sales Executives.
As to the second element, it is also clear that Adams
was qualified. CDM argued to the ICA that Adams was not
qualified for the position because she did not have recent or
relevant sales experience. However, the phone sales position
did not require sales experience.
11
The bill enacting RLH § 90A-1 originally included a specific
prohibition on discrimination in hiring of persons between the ages 40-65,
which was later deleted. H. Stand Comm. Rep. Nos. 31 & 80, in 1963 House
Journal, at 591 & 607; S. Stand. Comm. Rep. Nos. 399 & 810, in 1963 Senate
Journal, at 810 & 867. The Senate explained, “The deletion of reference to
ages 40 to 65 is not to be construed . . . as an avoidance [of] the problems
of our older workers, but rather as an attempt to make discrimination on the
basis of age more inclusive by removing specific limitations.” 1963 Senate
Journal at 867. While HRS § 378-2(1) does not specify specific age
limitations, Adams’ inclusion as a protected person was not challenged in
this case.
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First, the advertisement CDM posted for the job stated
that sales experience was “preferred,” but not required. If
sales experience was a “preference” and not a minimum
qualification, then Adams could have had no sales experience and
she still would have been qualified for the job.
Second, the hiring solicitation posted by CDM promised
extensive training. “We offer recognized training to build upon
your formal education/experience and teach you the business of
advertising and summit sales in order for you to progress and
build your career quickly.” “Here are a few key benefits of
working at CDM Media: . . . First-class Sales Training Program
from the best in the industry.” Similarly, newspaper articles
regarding CDM’s solicitation indicated “[a]ll sales hires will
go through an eight-week comprehensive training course.” The
offer of extensive training underscores the fact that no sales
experience was required.
Moreover, Adams had extensive sales experience. Adams
owned and operated her own marketing company for twelve years,
during which time she “[w]orked directly with owners of
businesses, executives of nonprofits and governmental managers.”
Subsequently, Adams worked for five years with Verizon. During
that time, Adams worked in both “inside” and “outside” sales.
Viewed in the light most favorable to Adams, this fact was
specifically recognized by CDM when one of its agents made the
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hand-written notes “1/2 inside” and “1/2 outside” on Adams’
first email besides the boxed-in words “Verizon/The Yellow
Pages.” While employed as a sales person at Verizon, Adams won
at least one award specifically for her inside/telephone sales
work. In addition, Adams won six other awards, all for
outperforming her peers and maintaining consistently positive
sales results. Adams denied stating that she disliked tedious
work, and thus this evidence is not weighed against Adams on
summary judgment. Because sales experience was merely
“preferred” and Adams had extensive sales experience, Adams was
qualified for the position and clearly satisfied the second
element of the prima facie test.
Therefore, because the circuit court made an express
determination that Adams established a prima facie case, and the
evidence in the record, viewed in the light most favorable to
Adams, demonstrates that she met the four elements of the
Shoppe-McDonnell prima facie test, Adams established a prima
facie case of age discrimination.
C. Legitimate, nondiscriminatory reason
Once Adams established a prima facie case of age
discrimination, a burden of production shifted to CDM to
“articulate a legitimate, nondiscriminatory reason” for not
hiring Adams. Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059.
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In this case, Willis articulated four reasons in
paragraph 5 of the Declaration for not hiring Adams:
5. It was my belief that the Plaintiff was not qualified
for the job because:
a. She had no sales experience in the prior five
years;
b. As far as I understood, most of her recent
(previous 10-15 years) sales experience was in
publishing and/or selling phone book
advertising which incorporated outside sales
and face to face communication;
c. As far as I understood, she had little or no
sales experience that involved selling to C-
Level corporate executives of Fortune 1,000
companies; and
d. I was advised that she had said that she
disliked tedious work.
Accordingly, we consider whether Willis’ Declaration articulates
a legitimate, nondiscriminatory reason for the adverse
employment action.
1. Defining “legitimate” in the context of HRS Chapter 378
“Legitimate” is defined as “lawful,” or “genuine.”
Black’s Law Dictionary 984 (9th ed. 2009). “[A] ‘legitimate’
reason must be one that is justifiable in view of the purposes
of the [statute].” Hill v. Mississippi State Emp’t Serv., 918
F.2d 1233, 1243-44 (5th Cir. 1990) (Rubin, J., dissenting).
In applying the second step of the analysis, “[t]he
employer’s explanation must be in the form of admissible
evidence and must clearly set forth reasons that, if believed by
the trier of fact, would support a finding that unlawful
discrimination was not the cause of the challenged employment
action.” Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059. However,
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if the employer’s articulated reason is not legitimate (or is
discriminatory) or if the articulated reason is not in the form
of admissible evidence, then the burden of production has not
been met.12
a. Legislative intent of HRS § 378-2
Legislative history is a valuable indicator of the
purpose of a statute. “This court’s primary duty in
interpreting and applying statutes is to ascertain and give
effect to the legislature’s intention to the fullest degree.”
Nat’l Union Fire Ins. Co. v. Ferreira, 71 Haw. 341, 345, 790
P.2d 910, 913 (1990); HRS § 1-15(2) (2009) (“The reason and
spirit of the law, and the cause which induced the legislature
to enact it, may be considered to discover its true meaning.”).
In interpreting statutes, “this court ‘must read statutory
language in the context of the entire statute and construe it in
a manner consistent with its purpose.’” Schmidt v. HSC, Inc.,
131 Hawaiʻi 497, 508, 319 P.3d 416, 426 (2014) (emphasis added)
(quoting Blaisdell v. Dep’t of Pub. Safety, 113 Hawaiʻi 315, 318,
151 P.3d 796, 799 (2007)).
The purpose of HRS Chapter 378 is to ensure that
hiring criteria are “in accordance with established occupational
12
See HRE Rule 301(3); (defining the “burden of producing evidence”
as the obligation of a party to introduce evidence of the existence or
nonexistence of a relevant fact sufficient to avoid an adverse peremptory
finding on that fact”); see also HRE Rule 303(b).
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qualifications that are applied equally to all persons.” 1963
Senate Journal at 866. When the law was initially enacted as
Act 180, section (1)(a) of the law read as follows:
(1) It shall be unlawful employment practice or unlawful
discrimination:
(a) For an employer to refuse to hire or employ or to
bar or discharge from employment, any individual
because of his race, sex, age, religion, color or
ancestry, provided that an employer may refuse to
hire an individual for good cause relating to the
ability of the individual to perform the work in
question . . . .
See 1963 Haw. Sess. Laws Act 180, § 1 at 223, codified at RLH
§ 90A-1, recodified to HRS §§ 378-2 and 378-3 (emphasis added).13
Thus, as enacted, the law explicitly linked the authority to
refuse to hire or discharge to “good cause relating to the
ability of the individual to perform the work in question.” As
explained by the Senate committee report, specifically referring
to section (1)(a) of Act 180, the policy supported by the law
was to “afford all persons equal opportunities in employment
. . . with the qualifications of the applicants being the sole
test in selecting employees.” 1963 Senate Journal at 866
(emphasis added).14
13
The minority asserts that “the 1963 version [of the statute] was
unclear.” Minority at 25. However, the minority declines to demonstrate the
alleged lack of clarity.
14
In full, the passage provides as follows:
This bill does not give minority group members any special
privileges in obtaining employment but afford [sic] all
persons equal opportunities in employment regardless of
race, sex, age, religion, color or ancestry with the
(continued. . .)
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Section 1(a) of the bill provides in part that an employer
may refuse to hire an individual for good cause relating to
the ability of the person to perform the work in
question[]. An employer may refuse to hire an individual
for justifiable and reasonable cause. In this connection,
the employer may, depending on the job, consider the
training, experience, intelligence, personality and
appearance of the applicant where any or all of these
factors are applied equally to all applicants and are
determinative in the selection of the best qualified.[15]
Id. at 867 (emphases added) (internal quotation marks omitted).
Chapter 378 therefore does not prohibit an employer from
refusing to hire an individual for reasons that are applied
equally to all applicants and are “relat[ed] to the ability of
the individual to perform the work in question.” HRS § 378-3(3)
(emphasis added). Thus, a “legitimate, nondiscriminatory
reason” not to hire a person, in view of the purposes and
statutory provisions of HRS Chapter 378, must be a reason
related to the “ability of the individual to perform the work in
question.”
b. Subsequent recodification did not alter the intent of the
legislature
RLH § 90A-1 was recodified to HRS Chapter 378 in 1981
and reorganized with the addition of protections for women and
government workers. 1981 Haw. Sess. Laws Act 94, §§ 1-3 at 184-
(. . .continued)
qualifications of the applicants being the sole test in
selecting employees.
1963 Senate Journal at 866.
15
Appearance cannot include color or racial characteristics. 1963
Senate Journal at 867.
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89. Reformation or reenactment of a statute does not alter the
purpose or intent of a law unless that is the express intent of
the legislature. Muniz v. Hoffman, 422 U.S. 454, 470 (1975)
(“It will not be inferred that the legislature, in revising and
consolidating the laws, intended to change their policy, unless
such an intention be clearly expressed.” (emphasis added)).
If a revised statute is ambiguous or susceptible of two
constructions, reference may be made to the prior statute
for the purpose of ascertaining intent. But mere
differences in words or arrangement should not generate an
inference of legislative intent to change the former rule.
A revision will not be construed as altering a particular
statute absent a clear, unmistakable legislative intent.
Le Mars Mut. Ins. Co. of Iowa v. Bonnecroy, 304 N.W.2d 422, 424
(Iowa 1981) (emphasis added) (citations omitted); see also Pye
v. State, 919 A.2d 632, 637 (Md. 2007) (“[A] change in a statute
as part of a general re-codification will ordinarily not be
deemed to modify the law unless the change is such that the
intention of the Legislature to modify the law is
unmistakable.”).
As stated by the legislature, the purpose of the 1981
revisions was to “extend coverage of Part I (Discriminatory
Practices) of the Employment Practices Act, Chapter 378, Hawaii
Revised Statutes, to Employees of the State and county
governments to help ensure that women are provided equal
treatment in employment when disabled because of pregnancy-
related conditions, and to clarify policies and procedures in
the area of enforcement with respect to unlawful or
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discriminatory employment practices.” H. Stand. Comm. Rep. No.
549, in 1981 House Journal, at 1166 (emphases added). Thus, the
express intent of the 1981 legislature was to expand the
safeguards offered by the employment discrimination provision of
HRS Chapter 378. In contrast, the legislative history does not
reveal any intention to alter the fundamental purposes of the
employment discrimination law or to reduce its protections.
Therefore, the 1963 legislative history continues to provide a
significant and reliable averment that the purpose of HRS § 378-
2 is to “afford all persons equal opportunities in employment
. . . with the qualifications of the applicants being the sole
test in selecting employees.” 1963 Senate Journal at 866; see
Muniz, 422 U.S. at 470.
As recodified, HRS § 378-3(3) preserves the intent of
the legislature. In the 1981 revision, the legislature shifted
language “provid[ing] that an employer may refuse to hire an
individual for good cause relating to the ability of the
individual to perform the work in question,” 1963 Haw. Sess.
Laws Act 180, § 1 at 223, to “Nothing in this part shall be
deemed to . . . [p]rohibit . . . an employer . . . from refusing
to hire . . . any individual for reasons relating to the ability
of the individual to perform the work in question.” HRS § 378-
3. Thus, following the recodification, the substance of the
statute is identical: in 1963 the language provided an exception
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to the prohibition against discriminatory hiring or discharging
practices and the language continues to do so in the 1981
revision, underscoring the fact that the legislature has
provided no indication that the purpose of the statute has been
altered.
Nonetheless, the minority maintains that the purpose
and intent of HRS § 378-2 was transformed based on the 1981
recodification. Minority at 24-25. However, the minority does
not provide any legislative history to support its contention
that the 1981 revision was intended to alter the purpose of HRS
Chapter 378. See Minority at 22-26. Thus, the interpretation
of the minority must be rejected as the legislature did not
express any intent to change the policy of the statute. Muniz,
422 U.S. at 470; Le Mars Mut. Ins. Co., 304 N.W.2d at 424 (“A
revision will not be construed as altering a particular statute
absent a clear, unmistakable legislative intent.”).16
16
Although the minority contends the 1963 legislative history is
irrelevant, minority at 26-27 n.6, it nevertheless also disputes the
interpretation of certain passages from the 1963 Senate Journal. Id. The
minority argues that statements from the journal “that reference the
qualifications of the applicant,” “when viewed in context, [] appear to be
general statements of support for equal opportunity, and not directives to
employers to base their hiring decisions solely on an applicant’s
qualifications.” Minority at 26 n.6. Respectfully, the legislature’s
statement that “This bill . . . afford[s] all persons equal opportunities in
employment . . . with the qualifications of the applicants being the sole
test in selecting employees,” 1963 Senate Journal at 866 (emphasis added), is
much more than a “general statement of support,” especially when viewed in
conjunction with the specific statutory language adopted by the legislature
in RLH § 90A-1. 1963 Haw. Sess. Laws Act 180, § 1 at 223, recodified at HRS
§§ 378-2 and 378-3.
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The minority alternatively argues, “Even if the
Majority is correct that the purpose of the current statute
remains the same as the 1963 version, our plain reading
interpretation of the current statute is consistent with that
legislative purpose when viewed in light of the whole
legislative history.” Minority at 26 (emphasis added). The
minority’s argument does not provide the context by which to
understand its reference to the “light of the whole legislative
history” or provide legislative history that contradicts the
1963 legislature’s intent as described above. Thus, if the
purpose of the current statute “remains the same as the 1963
version,” then the minority’s “plain reading interpretation” of
the current statute is pointedly inconsistent with the “whole
legislative history.”
Finally, the minority contends that when the 1963
legislature made the statement that the qualifications of the
applicants shall be the sole test in selecting employees,17 “the
legislature was addressing concerns that the statute might
create special preferences (such as hiring quotas) for
minorities.” Minority at 26 n.6. The minority does not present
any authority in support of a legislative concern regarding
“special preferences.” Surely, the right of individuals
17
See supra note 14 for the full text of the “sole test” statement.
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protected under HRS § 378-2 to expect that their ability to
perform the work in question will be the “sole test” in an
employment decision, subject to the exceptions of HRS § 378-3,
which is not a “special preference” but rather the embodiment of
the protection that HRS Chapter 378 guarantees.
c. Principles of statutory construction reinforce the
legislature’s intent
When construing a statute, our foremost obligation is
to ascertain and give effect to the intention of the
legislature, which is to be obtained primarily from the language
of the statute itself. Kauai Springs, Inc. v. Planning Comm’n
of Cnty. of Kauai, 133 Hawaiʻi 141, 163, 324 P.3d 951, 973
(2014). We must read statutory language in the context of the
entire statute and construe it in a manner consistent with its
purpose. Id. Additionally, “Laws in pari materia, or upon the
same subject matter, shall be construed with reference to each
other.” HRS § 1-16. Further, when construing a statute, courts
are “bound to give effect to all parts of a statute, and no
clause, sentence, or word shall be construed as superfluous,
void, or insignificant if a construction can be legitimately
found which will give force to and preserve all words of the
statute.” Fagaragan v. State, 132 Hawaiʻi 224, 241, 320 P.3d
889, 906 (2014) (citation and alteration omitted).
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HRS §§ 378-2 and 378-3 both concern lawful employment
practices. Thus, in order to give effect to HRS § 378-2, the
prohibitions of that section must be read together with HRS
§ 378-3. See HRS § 1-16. In HRS § 378-3, the legislature has
provided a list of eleven specific exceptions to the employment
discrimination prohibition of HRS § 378-2. For instance, as
stated, the legislature permits an adverse employment decision
when the reason for that decision is related to the person’s
ability to perform the work in question. HRS § 378-3(3). Other
exceptions, inter alia, allow religious organizations to give
employment preference to individuals of the same religion, HRS §
378-3(5), and exempt employers from having to make
“unreasonable” structural changes or “expensive” equipment
alterations to accommodate a person with a disability.18 HRS §
378-3(7).
Statutory lists may be interpreted under the principle
of expressio unius est exclusio alterius; i.e., the express
inclusion of certain items in a statutory list implies the
exclusion of others and of alternatives. Fagaragan, 132 Hawaiʻi
at 242, 320 P.3d at 907. This principle applies equally to a
statutory list of exceptions; when the legislature has created
certain exceptions, “it does not follow that courts have
18
For a summary of all the exceptions, see supra note 8.
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authority to create others.” United States v. Johnson, 529 U.S.
53, 58 (2000). The “proper inference” from a list of exceptions
to a statute is that the legislature “considered the issue of
exceptions and, in the end, limited the statute to the ones set
forth.” Id.; see also Thurston v. Bishop, 7 Haw. 421, 442 (Haw.
Kingdom 1888) (“The rule of construction, expressio unius est
exclusio alterius, then, ought to exclude all other
exceptions.”). In Hawaiʻi, the principle of expressio unius est
exclusio alterius is applicable “where in the natural
association of ideas the contrast between a specific subject
matter which is expressed and one which is not mentioned leads
to an inference that the latter was not intended to be included
within the statute.” Int’l Sav. & Loan Ass’n, Ltd. v. Wiig, 82
Hawaiʻi 197, 201, 921 P.2d 117, 121 (1996).
Thus, in applying the rule of construction, expressio
unius est exclusio alterius, this court looks to the contrast
provided by the natural association of ideas expressed in the
statutory list. Id. Here, there is a decided contrast between
the eleven specific exceptions presented by HRS § 378-3 and
potential exceptions that are not mentioned. For example, there
is a clear delimitation intended by the legislature’s reference
in HRS § 378-3(5) to “religious or denominational institution[s]
or organization[s],” such that a contrast is clearly implied
that the legislature did not intend that private businesses
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could also give employment preference to individuals who share a
common religion or denomination. Similarly, the legislature’s
use of “unreasonable structural changes or expensive equipment
alterations” in HRS § 378-3(7) describes a standard that
contemplates a clear contrast to reasonable structural changes
or non-expensive alterations of equipment; thus, it may be
inferred that the legislature plainly intended that an
alteration involving a minimal or nominal cost may not be
asserted as a basis to not hire a person with a disability.
Accordingly, the contrast between the exceptions
listed in HRS § 378-3 and those not listed admits the firm
conviction that the legislature “considered the issue of
exceptions and, in the end, limited the statute to the ones set
forth.” Johnson, 529 U.S. at 58. By the same analysis, the
legislature’s permission to allow an employer to refuse to hire,
refer or discharge an individual “for reasons related to the
ability of the individual to perform the work in question,” HRS
§ 378-3(3) (emphasis added), implies a clear contrast to reasons
that have no relation to the ability to perform the job. Thus,
in accordance with the principle of expressio unius est exclusio
alterius, the exceptions of HRS § 378-3 do not permit an adverse
employment decision to be based on reasons unrelated to the
ability of the individual to perform the work in question.
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The minority offers the criticism that our decision
treats HRS § 378-3 “as an exclusive list,” and “the legislature
was merely attempting to ensure that a particular group of key
rights remained protected without listing every possible basis
for an adverse employment decision.” Minority at 23, 27. Under
the minority’s reasoning, “[n]othing in either [HRS §§ 378-2 or
378-3] tells the employer that it must limit its hiring
decisions to reasons related to the ‘ability of the individual
to perform the work in question.’” Minority at 23; see also
minority at 25. This analysis is flawed for several reasons.
First, the treatment of the eleven exceptions provided
in HRS § 378-3 as an exclusive list is in full accordance with
the principle of expressio unius est exclusio alterius, based
upon the self-evident contrast between the eleven exceptions
prescribed by HRS § 378-3 and unspecified possible exceptions.
Johnson, 529 U.S. at 58. Second, if nothing tells the employer
that it must limit its hiring decisions to reasons related to
the ability of the individual to perform the work in question,
then “all” nondiscriminatory reasons are permitted. If all
nondiscriminatory reasons are permitted, then there would be no
purpose for an exception involving a subset of nondiscriminatory
reasons “relating to the ability of the individual to perform
the work in question.” See HRS 378-3(3). Thus, the contention
of the minority renders the exception provided in HRS § 378-3(3)
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as superfluous, contrary to our duty to give effect to all parts
of a statute when a construction can be legitimately found that
will give force to and preserve all words of the statute. See
Fagaragan, 132 Hawaiʻi at 241, 320 P.3d at 906. Third, it is
plain that by construing the exceptions in HRS § 378-3 to have
unlimited expansion for “possible bas[es]” not listed by the
legislature, the minority’s analysis renders not just HRS § 378-
3(3), but all non-discriminatory exceptions in HRS § 378-3 as
superfluous. The practical effect of a boundless expansion of
the bases for exceptions listed in HRS § 378-3 is to eliminate
the protections afforded by HRS § 378-2.
In order to give proper effect to the intention of the
legislature, HRS § 378-2 must be construed in the context of the
entire statute and consistent with its purpose to afford all
persons equal opportunities in employment. See 1963 Senate
Journal at 866. When read to limit lawful adverse employment
decisions to those based on reasons related to the ability of
the individual to perform the work in question, both HRS §§ 378-
2 and 378-3(3) are enforced and preserved, in accordance with
the mandate that laws on the same subject “shall be construed
with reference to each other.” See HRS § 1-16. Further, when
read in the context of the exceptions provided by HRS § 378-3,
the prohibitory language of HRS § 378-2 is consistent with the
purpose identified in its legislative history “that the
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qualifications of the applicants be[] the sole test in selecting
employees.” 1963 Senate Journal at 866; see Kauai Springs,
Inc., 133 Hawai‘i at 163, 324 P.3d at 973.
d. Requirement of a legitimate, nondiscriminatory reason in our
prior decisions
The requirement that legitimate, nondiscriminatory
reasons for an adverse employment action must pertain to the
individual’s inability to perform the work in question is
supported by our prior analysis of HRS § 378-2. In Shoppe, the
employee, Shoppe, alleged age discrimination when she was
terminated by her employer, Gucci. Shoppe, 94 Hawaiʻi at 381, 14
P.3d at 1062. The reason articulated by Gucci for firing Shoppe
was that she was not performing her job in a satisfactory
manner. Shoppe, 94 Hawaiʻi at 374-76, 381, 14 P.3d at 1055-57,
1062. Shoppe’s supervisor, Perreira, testified that she had
visited Shoppe’s Maui store and found important inventory
documents lying on the floor, which needed to be filled out and
faxed to the Gucci warehouse on Oʻahu in order for inventory to
be shipped to Maui that day. Shoppe missed the deadline for
faxing the papers and had done so numerous times, resulting in
Perreira personally reprimanding Shoppe on several occasions for
her tardiness. Id.
The reasons Gucci articulated for firing Shoppe were
therefore related to timely report filing, an important function
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of Shoppe’s position at Gucci. Under these circumstances, the
Shoppe court found that Gucci had articulated legitimate
nondiscriminatory reasons:
[T]here does not appear to be a genuine issue of fact
regarding Plaintiff’s failure to perform the duties of [a]
store manager satisfactorily. Therefore Defendants have
articulated legitimate, nondiscriminatory reasons for the
adverse employment action against Plaintiff.
Shoppe, 94 Hawaiʻi at 381, 14 P.3d at 1062 (emphases added). In
other words, because the reasons Gucci articulated for the
adverse employment action were related to Shoppe’s inability to
adequately perform the job in question, Gucci articulated a
legitimate, nondiscriminatory reason for firing Shoppe.
Similarly, in Simmons v. Aqua Hotels & Resorts, Inc.,
130 Hawaiʻi 325, 310 P.3d 1026 (App. 2013), an employee alleged,
inter alia, age discrimination under HRS § 378-2(1)(A). Id. at
328, 310 P.3d at 1029. The reasons given by the employer for
the adverse employment action was that the employee’s position
had been restructured as part of cost-cutting measures following
bankruptcy.19 Id. The employee was informed she could apply for
the restructured position. Id. at 327-28, 309 P.3d at 1028-29.
The employee declined to apply and the employer hired a
different person for the new position. Id. The ICA found that
the employee established a prima facie case of discrimination.
19
The new position was substantively different, including a new
title, redefined job description, different benefits, reduced salary, and
required relocation to Kauaʻi. Simmons, 130 Hawaiʻi at 327, 310 P.2d at 1028.
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Id. at 330-31, 309 P.3d at 1031-32. The ICA next found that the
employer met its burden to produce legitimate, nondiscriminatory
reasons for the adverse employment action because the employer’s
restructuring plan eliminated the employee’s original position,
the job description for the new position had been redefined, and
the job holder was required to be readily available on-site.
Id. at 331, 309 P.3d at 1029, 1032. The reasons provided were
related to a person’s ability to perform the work in question
because they defined the requirements of the job. Therefore,
the explanation given for the adverse employment action was
legitimate because it was related to the ability of the employee
to perform the work in question.20
In Dir., Dep’t of Labor & Indus. Relations v. Si-Nor,
Inc., No. 27497, 2009 WL 405926 (App. Feb. 18, 2009) (mem.), an
employee alleged discrimination and a prima facie case of
discrimination was established.21 Id. at *8. The Hawaiʻi Labor
Relations Board (HLRB) found testimony regarding the employee’s
insubordination and involvement in altercations with others more
20
The ICA went on to vacate summary judgment in favor of the
employer because it found genuine issues of material fact as to the
employer’s credibility; that is, the plaintiff had raised a material issue as
to pretext. “Based on this record, a rational fact-finder could infer that
Defendants’ stated reasons for Plaintiff’s termination lacked credibility and
were pretextual.” Id. at 331, 310 P.3d at 1032.
21
In Si-Nor, it was alleged that the employer discriminated against
the employee for having reported work place safety issues, in violation of
HRS § 396-8(e)(3). Si-Nor, 2009 WL 405926, at *7-*8. The ICA and the Hawaiʻi
Labor Relations Board applied the three-part Shoppe-McDonnell analysis. Id.
at *8-9.
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credible than the employee’s testimony. Id. at *9. The ICA
determined that “based on the testimony that the HLRB found
credible, [the employer] had legitimate reasons for firing [the
employee].” Id. The reasons given by the employer in Si-Nor —
the ability of the employee to work without insubordination and
disruptive altercations — were related to the employee’s ability
to perform the work in question and were therefore legitimate.
In contrast, this court evaluated the reason
articulated by the employer in Sam Teague, Ltd. v. Hawaiʻi Civil
Rights Commission, 89 Hawaiʻi 269, 971 P.2d 1104 (1999), and
determined that the articulated reason was not legitimate.22 Id.
at 277-79, 971 P.2d at 1112-14. In Sam Teague, a female
employee was terminated after taking a leave of absence for
pregnancy, in violation of the employer’s policy of not allowing
leave in the first year of employment. Id. at 272-74, 971 P.2d
at 1107-09. This court held that the employer’s “no leave”
policy violated Hawaiʻi law and administrative rules that
required employers to provide a leave of absence for a
“reasonable period of time” for “pregnancy, childbirth, or
22
In Sam Teague, the employer appealed the decision and award in
favor of the employee by the Hawai#i Civil Rights Commission. The court
analyzed the claims under the Shoppe-McDonnell rubric and the definitions and
requirements of HRS §§ 378-1, -2, and -3. Sam Teague, 89 Hawaiʻi 269, 278-81,
971 P.2d 1104, 1113-16.
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related medical conditions.” Id. at 277-79, 971 P.2d at 1112-
14.
In addition to specifically holding that the policy
was invalid, the court also evaluated the legitimacy of the
employer’s articulated reason for the termination: that the
employee was terminated because she intentionally failed to
disclose her pregnancy before accepting a job where leave was
not permitted in the first year. Id. at 278-79, 971 P.2d at
1113-14. The court in Sam Teague found that the “no leave”
policy had not been communicated to the employee, nor was she
informed that the employer’s requested “one-year commitment”
meant “working twelve consecutive months with no extended
leave.” Id. at 273, 278-79, 971 P.2d at 1108, 1113-14. The
court found that the employee “could have reasonably believed
that a one-year commitment simply meant that she would remain
employed with the business for at least a term of one year” and
that the employee intended to return to work after the birth of
her child. Id. at 279, 971 P.2d at 1114.
Based on those findings, the court concluded that the
employer “failed to establish a legitimate nondiscriminatory
explanation of the adverse employment action.” Id. This
conclusion is consistent with the principle that the reason
articulated by an employer is not legitimate when it is not
related to the ability of the individual to perform the work in
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question. That is, because the employee in Sam Teague was able
to perform the job in conformance with the criteria as conveyed
by the employer, the reason given by the employer – that the
employee could not work 12 months consecutively – was unrelated
to the ability of the employee to meet the requirements of the
position as conveyed to the employee.
Thus, the review of the cases of our courts addressing
the second step of the Shoppe-McDonnell framework reflect that
that the nondiscriminatory reason articulated by the employer
for the adverse employment action must be related to the ability
of the individual to perform the work in question.
2. Reasons provided by CDM were not legitimate
Paragraph (5)(a) of the Declaration states it was
Willis’ belief that Adams was not qualified for the job because
“[Adams] had no sales experience in the prior five years.”23
Under the Shoppe-McDonnell analysis, we are required to
determine whether the fact that “[Adams] had no sales experience
in the prior five years” was a legitimate, nondiscriminatory
reason for CDM not to have hired Adams. Specifically, the
analysis must consider whether sales experience in the prior
23
Willis stated his “belief” that Adams had no sales experience in
the prior five years. Adams’ lack of sales experience in the past five years
was established by Adams’ declaration attached to Adams’ Memorandum in
Opposition to [CDM’s] Motion for Summary Judgment Filed February 21, 2012 and
her resume, which was attached as exhibit 10.
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five years was related to Adams’ ability to perform as a
telephone sales person at CDM.
a. CDM disavowed consideration of “sales experience”
In determining whether “sales experience in the prior
five years” was related to the ability to perform the duties of
the position, we note that the ultimate decision-maker in this
case, Willis, specifically stated in his Declaration that he
“did not consider any criteria stated in any advertising or
posting in making [his] decision not to hire [Adams].”
(Emphasis added). However, “sales experience preferred” was one
of the listed “requirements” in the online employment
solicitation published by CDM. Since “sales experience” was a
“criteria stated in [] advertising,” which Willis expressly
disavowed as a consideration in his decision not to hire Adams,
Willis’ proffered reason not to hire Adams because she had no
sales experience in the prior five years is plainly contradicted
by his own statement that he did not consider sales experience.
As “sales experience in the past five years” was
refuted as a consideration in the hiring decision by CDM’s own
admission, the criterion was not related to the job in question
and thus was not a legitimate reason for the adverse employment
action. Therefore, the Declaration’s articulated criterion of
“sales experience in the prior five years” did not satisfy CDM’s
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burden to produce a legitimate, nondiscriminatory reason for its
hiring decision in this case.
b. “Sales experience” was not shown to be related to the
ability to perform the job in question
Second, even assuming the proffered justification that
“sales experience in the prior five years” had not been
disavowed by CDM, this justification was not related to an
individual’s ability to perform as a telephone sales person
because it is controverted by the advertised qualifications for
the job. CDM’s posted solicitation for the position stated
“Sales experience preferred,” but the solicitation did not
indicate that sales experience in the last five years was
required in order to be qualified for the position.
The justification in the Declaration is also
contradicted by the employee-training program highlighted in
CDM’s posted solicitation. CDM’s solicitation stated, “We offer
recognized training to build upon your formal
education/experience and teach you the business of advertising
and summit sales . . . .” “Here are a few key benefits of
working at CDM Media: . . . First-class Sales Training Program
from the best in the industry.” Similarly, a newspaper article
regarding CDM’s employment solicitation stated “[a]ll sales
hires will go through an eight-week comprehensive training
course.”
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“Sales experience in the prior five years” was not
shown to be related to Adams’ ability to perform the duties of a
telephone sales person because CDM’s hiring advertisements
indicated that sales experience was not required to be qualified
for the position and also promised to provide extensive sales
training. Thus, the criterion of “sales experience in the prior
five years” was not a required qualification for the position,
not a legitimate reason for the adverse employment action, and
not related to Adams’ ability to perform the job in question.
Therefore, CDM failed to meet its burden of production in the
second step of the Shoppe-McDonnell analysis.
c. “Legitimate” is integral to the Shoppe-McDonnell analysis
The employer’s burden to articulate a legitimate,
nondiscriminatory reason is not a burden to prove the truth of
the legitimate, nondiscriminatory reason. That is, the
requirement in the second step is that the “explanation”
articulated be legitimate, Shoppe, 94 Hawaiʻi at 378, 14 P.3d at
1059, not that the employer prove that the reason was true or
correct.
Further, the evaluation of the legitimacy of the
articulated reason is distinct from an evaluation of the
credibility of a defendant. The evaluation of the legitimacy of
a nondiscriminatory reason for an adverse employment action in
the context of the Shoppe-McDonnell test is only whether the
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reason is related to the ability of the individual to perform
the work in question; in contrast, an evaluation of credibility
looks to whether the reason was believed or is worthy of
credence. Thus, the evaluation of legitimacy does not transform
the burden to produce a legitimate reason into a burden to prove
that reason.24
However, the minority would go further, essentially
reading “legitimate” out of the Shoppe-McDonnell test. See
minority at 16-18. The minority would hold that “an employer’s
proffered reason must be taken as true.” Id. at 18, 19
(emphasis added); see also id. at 31 (“[W]e must assume that the
proffered evidence is true.”). Under the minority’s analysis,
no analysis of the legitimacy of the reason is permissible; a
court is required to accept any nondiscriminatory reason and one
completely unrelated to the qualifications of the individual to
perform the job. Respectfully, the authority cited for this
proposition, Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993),
and Shoppe, 94 Hawaiʻi at 378, does not mandate unexamined
acceptance of any nondiscriminatory reason.
Hicks states that in the second step of the McDonnell
Douglas analysis, the employer must “introduce evidence which,
24
Thus, the contention of the minority that under this decision the
“burden shifts to the employer-defendant to prove that the reasons for its
decision,” minority at 33, is incorrect.
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taken as true, would permit the conclusion that there was a
nondiscriminatory reason for the adverse action.” Hicks, 509
U.S. at 509 (emphasis in original). Some examination by the
court is implied by the directive that the evidence presented
must be sufficient to “permit the conclusion.” See also Texas
Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)
(holding that the “explanation provided must be legally
sufficient to justify a judgment for the defendant” and noting
that the “sufficiency of the defendant’s evidence should be
evaluated” (emphasis added)).25 Similarly, Shoppe states, “The
25
The remaining cases cited by the minority do not reduce the
requirement that the legitimate, nondiscriminatory reason “must be legally
sufficient to justify a judgment for the defendant.” Burdine, 450 U.S. at
255 (emphasis added); see Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2
(3d Cir. 1997) (The second step “is satisfied if the defendant articulates
any legitimate reason for the discharge”); Krenik v. Cnty. of Le Sueur, 47
F.3d 953, 958 (8th Cir. 1995) (“In the second part . . . the burden shifts to
the defendant who must . . . produc[e] evidence, ‘that the plaintiff was
rejected . . . for a legitimate, nondiscriminatory reason.’”). Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), minority at 28, did not
substantively discuss legitimacy because it did not apply McDonnell Douglas.
The “test is inapplicable where the plaintiff presents direct evidence of
discrimination. . . . In this case, there is direct evidence.” Id. at 121;
see also Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999)
(same) (cited by minority at 30).
A review of the cases cited by the minority in support of its
argument that an employer’s action may be based on an objectively false but
honestly held belief do not refute the conclusion that the reason articulated
still must be legitimate because legitimacy was not at issue in those cases.
Minority at 35-37; see Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553,
558 (6th Cir. 2009) (plaintiff stipulated that the employer “articulated a
facially legitimate, nondiscriminatory reason for terminating her
employment”); Flores v. Preferred Technical Grp., 182 F.3d 512, 515 (7th Cir.
1999) (articulated reason was insubordination and “[i]nsubordination is a
legitimate, nondiscriminatory reason for firing an employee”). In other
cases cited by the minority, the second prong of the McDonnell Douglas test
was not substantively examined but the articulated reasons were manifestly
legitimate. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-63
(9th Cir. 2002) (articulated reason was that employee violated company
procedures and was dishonest during the ensuing investigation); Tesh v. U.S.
(continued. . .)
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employer’s explanation must be in the form of admissible
evidence and must clearly set forth reasons that, if believed by
the trier of fact, would support a finding that unlawful
discrimination was not the cause of the challenged employment
action.” Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059 (emphasis
added). Thus, Shoppe, too, indicates that the nondiscriminatory
reason must be evaluated for legitimacy.
The Shoppe decision undertook just such an analysis:
Under these circumstances, there does not appear to be a
genuine issue of fact regarding Plaintiff’s failure to
perform the duties of store manager satisfactorily.
Therefore, Defendants have articulated legitimate,
nondiscriminatory reasons for the adverse employment action
against Plaintiff.
Shoppe, 94 Hawaiʻi at 381, 14 P.3d at 1062 (emphasis added); see
also Sam Teague, 89 Hawaiʻi at 279, 971 P.2d at 1114 (“Therefore,
[employer] has failed to establish a legitimate
nondiscriminatory explanation of the adverse employment
action.”). Thus, our examination of legitimacy is consistent
with this court’s prior holdings.
The minority’s analysis is inconsistent with these
prior decisions. Our case law has not provided any decision in
which a reason unrelated to the ability of the person to perform
(. . .continued)
Postal Serv., 349 F.3d 1270, 1272 (10th Cir. 2003) (articulated reason for
termination was that “an investigation revealed that [employee] was dishonest
in pursuing [a] workers’ compensation claim”); Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001) (articulated reason was
the employee’s “increasingly poor job performance”).
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the job has been accepted as satisfying the second step of the
Shoppe-McDonnell analysis. The minority’s reasoning would
impose new constraints on our law by unreasonably restricting
the power of a court to evaluate the legitimacy of a defendant’s
articulated reason. Thus, the analysis of the minority is
contrary to Hawaiʻi law that the hiring or discharge decision of
an individual protected under HRS § 378-2 shall be related to
the ability of the person to perform the work in question.
The minority maintains that the McDonnell Douglas test
represents a “universally accepted framework.” Minority at 31.
However, McDonnell Douglas has been the subject of significant
academic criticism.26 It has been objected to by prominent state
jurists for its lack of clarity and effect of undermining its
own purpose and provoked a line of criticism over its use in the
summary judgment context. In Trott v. H.D. Goodall Hosp., 66
A.3d 7 (Me. 2013), Justice Silver wrote separately to reaffirm
his position that the Maine Supreme Court “should not apply the
three-step, burden-shifting [McDonnell Douglas] analysis . . .
26
See, e.g., Sandra F. Sperino, Beyond McDonnell Douglas, 34
Berkeley J. Emp. & Lab. L. 257 (2013); William R. Corbett, Fixing Employment
Discrimination Law, 62 SMU L. Rev. 81 (2009); Martin J. Katz, Unifying
Disparate Treatment (Really), 59 Hastings L.J. 643 (2008); Jamie Darin
Prenkert, The Role of Second-Order Uniformity in Disparate Treatment Law:
McDonnell Douglas’s Longevity and the Mixed-Motives Mess, 45 Am. Bus. L.J.
511, 512-15 (2008); Michael J. Zimmer, The New Discrimination Law: Price
Waterhouse Is Dead, Whither McDonnell Douglas?, 53 Emory L.J. 1887, 1930
(2004); Michael Evan Gold, Towards a Unified Theory of the Law of Employment
Discrimination, 22 Berkeley J. Emp. & Lab. L. 175 (2001).
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to discrimination claims at the summary judgment stage” because
“it unnecessarily complicates the courts’ already difficult
task.” Id. at 16 (Silver, J., concurring). “This rigid and
artificial . . . analysis confuses rather than clarifies the
ultimate issue in employment discrimination cases: whether there
is evidence of discrimination.” Id. (internal quotation marks
omitted); see Curlee v. Kootenai Cnty. Fire & Rescue, 224 P.3d
458, 463 (Idaho 2008) (concluding that while the burden-shifting
analysis is applicable at trial, it should not be applied at
summary judgment); Heng v. Rotech Med. Corp., 688 N.W.2d 389,
401 (N.D. 2004) (stating that McDonnell Douglas has “little or
no application at the summary judgment stage”).
Federal jurists, too, have raised similar concerns.
Judge Magnuson of the Eighth Circuit expressed in Griffith v.
City of Des Moines, 387 F.3d 733 (8th Cir. 2004), that “[a]bsent
from [McDonnell Douglas] was any justification or authority for
this scheme” and observed that McDonnell Douglas has “confused
courts across the nation.” Id. at 740 (Magnuson, J., concurring
specially). “[C]ourts have failed to thoroughly examine the
language of the statute and congressional intent, and instead
have fought to keep an arbitrary paradigm alive.” Id. at 747
(emphasis added). Judge Wood of the Seventh Circuit Court of
Appeals called “attention to the snarls and knots” of the
McDonnell Douglas test, referring to it as an “allemande worthy
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of the 16th century.”27 Coleman v. Donahoe, 667 F.3d 835, 863
(7th Cir. 2012) (Wood, J., concurring). “The original McDonnell
Douglas decision was designed to clarify and to simplify the
plaintiff’s task . . . unfortunately, both of those goals have
gone by the wayside.” Id. Judge Hartz of the Tenth Circuit
Court of Appeals stated, “The use of the McDonnell Douglas
framework [] readily lends itself to consideration of
formalities instead of the essence of the issue at hand.” Wells
v. Colo. Dep’t of Transp., 325 F.3d 1205, 1225 (10th Cir. 2003)
(Hartz, J., concurring). Judge Tymkovich, also of the Tenth
Circuit Court of Appeals, stated adoption of the McDonnell
Douglas framework “has left the entire area of law confused” and
that the McDonnell Douglas “inquiry distracts the court from
what it should be focusing its attention on: determining whether
28
the plaintiff produced sufficient evidence of discrimination.”
27
An “allemande” is a dance form associated with Baroque music
originating in Europe in the sixteenth century, often involving lines of
couples dancing with interlocked arms. Allemande, Wikipedia (Feb. 15, 2015,
2:28 PM), http://en.wikipedia.org/wiki/Allemande.
28
The Supreme Court has moved away from a burden-shifting framework
in certain types of discrimination cases. In Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), the Court stated that Burdine is inapplicable to prove
sex discrimination when the employer’s motive was a mixture of legitimate and
illegitimate reasons. Id. at 246-47 (plurality opinion); see also Desert
Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (holding that a plaintiff in a
mixed motive case is required to prove his or her case by a preponderance of
the evidence, using direct or circumstantial evidence). Similarly, in Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009), when the Court declined
to apply McDonnell Douglas in a mixed-motive, age discrimination complaint
brought under federal law, instead holding that a “plaintiff must prove by a
preponderance of the evidence . . . that age was the ‘but-for’ cause of the
challenged employer decision.” Id. at 177-78.
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The Honorable Timothy M. Tymkovich, The Problem with Pretext, 85
Denv. U. L. Rev. 503, 505, 522 (2008).
The McDonnell Douglas framework, (or, in Hawaiʻi, the
Shoppe-McDonnell test), is an analysis adopted by courts to
apply an anti-discrimination law. The Shoppe-McDonnell test
does not establish or modify HRS § 378-2, but instead it is a
court-designed tool to effectuate the statute. Thus, what
constitutes as a legitimate, nondiscriminatory reason under HRS
§ 378-2 ultimately must be discerned by an examination of the
statute, its legislative history, and other principles of
statutory construction. See Griffith, 387 F.3d at 747
(Magnuson, J., concurring specially). The relevance of the
manner in which other courts may have interpreted the McDonnell
Douglas framework is limited to the extent that the analyses of
these courts were not designed to give effect to HRS § 378-2 and
did not take into account the purpose and protections afforded
by the Hawaiʻi legislature, which has specifically informed our
analysis.
The minority’s effective elimination of “legitimate”
from the Shoppe-McDonnell analysis would place Hawaiʻi employees
eligible for protection because of race, sex, sexual
orientation, age, religion, color, ancestry, disability, marital
status, or status as a victim of domestic or sexual violence at
a significant disadvantage. Under the minority’s analysis, the
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employer could posit any nondiscriminatory reason in order to
rebut the plaintiff’s prima facie case, contrary to Hawaiʻi law,
the intent of the legislature, and the prior holdings of this
court, all in defense of a test that, as one jurist phrased it,
“readily lends itself to consideration of formalities instead of
the essence of the issue at hand.”29
d. Hypotheticals posed by the minority are insubstantial
The minority posits a series of strained hypotheticals
that it argues would result from a court’s examination of
“legitimate;” however, each lacks substance and is readily
answerable.
The minority first suggests that “whenever the number
of equally qualified applicants exceeds the number of positions,
those qualified applicants not hired could have a cause of
action” because “the only legitimate hiring consideration is
whether the person is qualified.” Minority at 37. However, it
is clear that the purpose of HRS Chapter 378 is not to prohibit
29
The requirement that the job selection criteria be related to the
job in question already operates in Title VII of the Civil Rights Act of 1965
prohibiting discrimination in hiring practices based on race, color,
religion, sex, and national origin. That law “proscribes not only overt
discrimination but also practices that are fair in form, but discriminatory
in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “The
touchstone is business necessity.” Id. (emphasis added). Thus, “[i]f an
employment practice which operates to exclude [a racial category] cannot be
shown to be related to job performance, the practice is prohibited.” Id.
(emphasis added). There is no indication that Title VII of the Civil Rights
Act of 1965 has resulted in a flood of spurious claims against employers
based upon the hypothetical scenarios envisioned by the minority, and thus we
are assured that the application of the law enacted by our legislature will
not create such consequences.
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selection among applicants; it is to set forth the acceptable
criteria for selection upon qualifications related to the
position offered. HRS § 378-3(3) (“Nothing in this part shall
be deemed to . . . [p]rohibit or prevent an employer from
refusing to hire . . . any individual for reasons relating to
the ability of the individual to perform the work in question .
. . .”). Thus, an employer may select an employee from a pool
of applicants to fill a limited number of positions by comparing
and contrasting job-related qualifications without creating a
cause of action.
The minority also suggests that under our definition
of legitimate, the employer could not take an applicant’s
“personality” into consideration in its decisions. Minority at
38. To the contrary, an individual’s personality may be a
legitimate reason for an adverse employment decision when the
personality trait is related to the ability to perform the work
in question. On the other hand, an employee’s burden to show
discrimination would be insurmountable if an employer could make
adverse hiring decisions based on personality traits that were
unrelated to the ability to perform the job.30
30
A discriminatory basis for an adverse hiring decision could be
readily justified by characterizing the reason as based on “personality.”
Personality embraces a person’s moods, attitudes, opinions, motivations, and
style of thinking, perceiving, speaking, and acting.” Personality, Merriam-
Webster, http://www.merriam-webster.com/dictionary/personality (last visited
December 29, 2014). Thus, if personality was a legitimate reason for an
(continued. . .)
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Similarly, the minority suggests that an employer
could face liability for incorrectly assigning a high score on
an employment exam to the wrong person. Minority at 38-39.
However, it would seem probable that such an exam would test
qualities related to the ability to perform the work in
question; thus the exam results would be related to the job,
even if mistakenly applied to the wrong individual.31
3. Undisclosed criteria may weigh against finding of
legitimate
Although not necessary to its primary holding based on
illegal pregnancy discrimination, this court’s decision in Sam
Teague focused in part on the employer’s failure to inform the
employee of the “no leave” policy or the meaning of the one-year
commitment. 89 Hawaiʻi at 273, 279, 971 P.2d at 1108, 1114. The
ruling in Sam Teague that failing to communicate the existence
of a job criterion is a factor that weighs against an employer’s
use of that criterion as a legitimate nondiscriminatory reason
for an adverse employment action is consistent with HRS Chapter
(. . .continued)
adverse action even when unrelated to the position, an employer could decline
to hire a person on the grounds of mannerisms or style that may be culturally
based.
31
The minority appears to also assert that test results are hearsay
and are thus precluded from providing a legitimate, nondiscriminatory reason.
Minority at 35. To clarify, an in-court statement based on personal
knowledge of test results is not hearsay. In contrast, if a statement in a
declaration relies upon information provided by another person, as in this
case, it is not based on personal knowledge and is inadmissible as hearsay,
barring an exception to the hearsay rule. See infra, section III.C.5.
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378’s purpose of ensuring that employment decisions are made
based on “factors [that] are applied equally to all applicants.”
1963 Senate Journal at 866.
If an employer discloses the criteria that the
employer actually uses to evaluate candidates, it is more likely
that the employer is applying these criteria to all applicants.
Conversely, “informal, secretive and subjective hiring or
promotion decision processes tend to facilitate the
consideration of impermissible criteria.” Roberts v. Gadsden
Mem’l Hosp., 835 F.2d 793, 798 (11th Cir. 1988).
Unpublicized or undisclosed criteria are not likely to
be established occupational qualifications, nor can it be
assumed that they are applied equally to all persons. See Rowe
v. Gen. Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972)
(recognizing mechanisms for employment discrimination that
involved promotion/transfer criteria “which can be covertly
concealed”); Porter v. Milliken & Michaels, Inc., No. CIV. A.
99-0199, 2001 WL 1315435 (E.D. La. June 28, 2001) (noting that
“[c]ourts have found that informal, secretive and subjective
hiring or promotion decision processes tend to facilitate the
consideration of impermissible criteria”). Therefore,
undisclosed criteria measuring a person’s ability to perform the
work in question are less likely to form the basis of legitimate
and nondiscriminatory reasons for adverse employment actions.
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Here, “sales experience in the prior five years” was
not publicized or disclosed as a hiring criterion in any
materials in the record other than in Willis’ Declaration. CDM
presented no evidence that the requirement of “sales experience
in the prior five years” was applied or disclosed to any other
applicant.32 Thus, the criterion of “sales experience in the
prior five years” may have been an informal and undisclosed
hiring criterion applied only to Adams.33 Second, Willis’
Declaration expressly states that he did not use “any criteria
stated in any advertising or posting in making my decision not
to hire [Adams].” However, the Declaration does not indicate
whether this was also true for other applicants. Therefore, it
is not clear if the hiring criteria used to evaluate applicants
were publicized or disclosed to any person applying for the
position. CDM’s rejection of its own publicized hiring criteria
may also indicate that an informal, undisclosed, and
individualized hiring criterion was applied to Adams.
Consequently, the undisclosed hiring criterion relied upon by
CDM to conclude that Adams was unqualified for the position,
32
CDM also did not present evidence that sales experience in the
past five years was a usual or customary hiring requirement for the
particular position at issue, for any other position at CDM, or for the
industry in general.
33
CDM’s disqualifying criteria - lack of sales experience in the
past five years - correlates exactly with Adams’ actual recent lack of sales
experience and may also indicate that an individualized criterion was applied
to Adams.
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which may or may not have been applied to any other applicant,
also weighs against a finding that the proffered reason was a
legitimate, nondiscriminatory reason for the adverse employment
action against Adams.
4. Additional reasons provided by CDM are inadmissible hearsay
Willis also set forth three additional reasons for not
hiring Adams, which can be considered collectively. The Willis
Declaration states:
5. It was my belief that the Plaintiff was not qualified
for the job because:
. . .
b. As far as I understood, most of her recent
(previous 10-15 years) sales experience was in
publishing and/or selling phone book
advertising which incorporated outside sales
and face to face communication;
c. As far as I understood, she had little or no
sales experience that involved selling to C-
Level corporate executives of Fortune 1,000
companies; and
d. I was advised that she had said that she
disliked tedious work.
(Emphases added).
Affidavits submitted by parties in support of a motion
for summary judgment “shall be made on personal knowledge, shall
set forth such facts as would be admissible in evidence, and
shall show affirmatively that the affiant is competent to
testify to the matters stated therein.” HRCP Rule 56(e) (2000)
(emphasis added). “It is axiomatic that a motion for summary
judgment should be decided on the basis of admissible evidence.”
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Munoz v. Yuen, 66 Haw. 603, 605, 670 P.2d 825, 826 (1983) (per
curium).
Thus, “[t]he rule in Hawaiʻi is that an affidavit
consisting of inadmissible hearsay cannot serve as a basis for
awarding or denying summary judgment.” Hawaii Cmty. Fed. Credit
Union v. Keka, 94 Hawaiʻi 213, 221, 11 P.3d 1, 9 (2000)
(alterations omitted) (internal quotation marks omitted)
(quoting GE Capital Hawaii, Inc. v. Miguel, 92 Hawaiʻi 236, 242,
990 P.2d 134, 140 (App. 1999)); see also HRE Rule 801 (2002);
HRE Rule 802 (1980); Fuller v. Pac. Med. Collections, Inc., 78
Hawaiʻi 213, 224, 891 P.2d 300, 311 (App. 1995) (“[HRCP Rule
56(e)] requires that facts set forth in the affidavits be
admissible in evidence. . . . These requirements are
mandatory.”). “A witness may not testify to a matter unless
evidence is introduced sufficient to support a finding that the
witness has personal knowledge of the matter.” HRE Rule 602
(1992); see also Miller v. Manuel, 9 Haw. App. 56, 66, 828 P.2d
286, 292 (1991) (“Affidavits in support of a summary judgment
motion are scrutinized to determine whether the facts they aver
are admissible at trial and are made on the personal knowledge
of the affiant.”). Personal knowledge means “the witness
perceived the event about which [the witness] testifies and []
has a present recollection of that perception.” HRE Rule 602
Commentary.
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Therefore, an affidavit from an employer supporting a
motion for summary judgment must be based on personal knowledge
of the matter, i.e., admissible evidence. “The employer’s
explanation must be in the form of admissible evidence and must
clearly set forth reasons that, if believed by the trier of
fact, would support a finding that unlawful discrimination was
not the cause of the challenged employment action.” Shoppe, 94
Hawaiʻi at 378, 14 P.3d at 1059 (emphasis added).
Correlatively, inadmissible evidence or hearsay cannot
support an affidavit in a motion for summary judgment that
purports to show a legitimate, nondiscriminatory reason for an
adverse employment action in a discrimination-based claim
applying the three-part Shoppe-McDonnell analysis.34 Takaki v.
Allied Mach. Corp., 87 Hawaiʻi 57, 69, 951 P.2d 507, 519 (App.
1998) (stating, in the context of discrimination claims based on
race and work injury, “a motion for summary judgment may be
decided only on the basis of admissible evidence”); see also
Lales v. Wholesale Motors Co., 133 Hawaiʻi 332, 361-62, 328 P.3d
34
Allowing the decision-maker to rely on asserted third-party
knowledge would shield the employer from discriminatory acts of anyone
surrounding the ultimate decision-maker, even if those actions were designed
and intended to result in an adverse employment action. See Staub v. Proctor
Hosp., 131 S. Ct. 1186, 1189, 1193 (2011) (finding that, under a “cat’s paw”
theory, an employer was not shielded from the discriminatory actions of an
employee’s supervisors — even if they were not the ultimate personnel
decision-makers — if the ultimate decision-maker made a decision based on
negative reports by the discriminatory supervisors that were put in the
employee’s personnel file specifically with the intent of getting the
employee fired).
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341, 370-71 (2014) (discussing how, in the context of the third
step of the Shoppe-McDonnell analysis of discrimination claims
based on retaliatory discharge under HRS § 378-2(2), evidence
must be admissible in order to be relied upon in a HRCP Rule
56(e) motion for summary judgment).
If a legitimate, nondiscriminatory reason could be
shown by evidence not based on personal knowledge and the
plaintiff was unable to demonstrate pretext in the third step of
the Shoppe-McDonnell test, the consequence would be that a
motion for summary judgment would be granted based on
inadmissible evidence, contrary to the fundamental law of this
jurisdiction. See HRCP Rule 56(e) (“Supporting and opposing
affidavits [in a motion for summary judgment] . . . shall set
forth such facts as would be admissible in evidence . . . .”);
Fuller, 78 Hawaiʻi at 224, 891 P.2d at 311 (“[T]he circuit courts
should ascertain whether a foundation has been established for
the admissibility of evidence offered in support of the motion
before an order granting summary judgment is filed.”); Munoz, 66
Haw. at 605, 670 P.2d at 826; Keka, 94 Hawaiʻi at 221, 11 P.3d at
9; Miller, 9 Haw. App. at 66, 828 P.2d at 292. Thus, the
principle that evidence supporting a motion for summary judgment
must be admissible applies in a motion for summary judgment upon
a discrimination-based claim as it does in any other motion for
summary judgment.
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In the Willis declaration, subparagraphs (b) and (c)
begin with the following: “[a]s far as I understood,” which
indicates that the basis for the information is from an
unidentified third person or external source. Likewise,
subparagraph (d) states: “I was advised,” again indicating that
the source of the information is an unidentified third party.
The reasons stated in subparagraphs (b), (c), and (d) of Willis’
Declaration do not demonstrate that they are based on Willis’
personal knowledge because the bases for the information are
unidentified third persons or external sources. Therefore, the
proffered reasons in subparagraphs (b), (c), and (d) are not
admissible statements and, accordingly, do not articulate
legitimate, nondiscriminatory reasons for the adverse employment
action against Adams.
Further, the facts of the case belie that Willis’
statements were based on “personal knowledge,” as asserted by
the minority. Minority at 34-35. A mere recitation that the
witness “understood” or was “advised” of a fact is insufficient,
in itself, to establish that the witness perceived the facts for
which testimony is offered, i.e. that the testimony is based on
personal knowledge. See Addison M. Bowman, Hawaiʻi Rules of
Evidence Manual § 602-1[3] (2014-15 ed.) (finding testimony of a
person on Oʻahu regarding weather on the Big Island is
objectionable on lack of personal knowledge grounds); State v.
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Apollonio, 130 Hawaiʻi 353, 362, 311 P.3d 676, 685 (2013)
(striking testimony of a witness where nothing in evidence would
support a finding that the witness had personal knowledge of the
fact at issue).
Here, it is uncontroverted that Willis never met
Adams; Adams’ only interview was with Bera, CDM’s Human
Resources Director.35 According to CDM’s established hiring
procedure, Bera “host[ed] the first round of interviews and
review[ed] all candidates that came in for [an] interview and
narrow[ed] down the list of potential candidates to meet with
[Willis].” (Emphasis added). Thus, based on established hiring
procedures and the fact that Adams only met with Bera, Willis’
two statements indicating “as far as I understood” and the
statement “I was advised” are clearly not based on Willis’
personal knowledge. Further, it would appear that Bera had
significant input in the decision not to hire Adams, if he did
not make the decision outright.
Additionally, Willis’ Declaration states in paragraph
six that CDM did not hire any younger applicants with equal or
lower qualifications for the position. Although not
specifically stated as a reason for Adams not being qualified
for the position, paragraph six is entirely conclusory, and no
35
The record does not contain a declaration from Bera.
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admissible evidence was adduced to establish this “fact.”36
“Ultimate or conclusory facts or conclusions of law are not to
be utilized in a summary judgment affidavit.” Miller, 9 Haw.
App. at 66, 828 P.2d at 292. Accordingly, Willis’ statement
that no younger, equally or less qualified applicants were hired
cannot form the basis of a legitimate reason not to hire Adams.
The minority acknowledges that “[a]n employer
satisfies this second step through admissible evidence of the
employer’s reason for its decision.” Minority at 18 (emphasis
added). The minority does not assert that Willis had any
interaction with Adams or contest that Willis must have obtained
the information contained in subparagraphs (b), (c), and (d) of
his Declaration from some other source. According to the
minority, these subparagraphs “were offered for the limited non-
hearsay purpose of articulating a reason why he made the
decision not to hire Adams.” Id. at 34-35. Thus, as the
minority contends that subparagraphs (b), (c), and (d) of the
Willis Declaration are admissible non-hearsay, the minority is
asserting that the statements in Willis’ Declaration were not
offered for the truth of the reasons contained within those
36
That is, there was no admissible evidence as to any actual sales
experience of the hired applicants, or whether any such experience occurred
within the past five years.
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statements but only to demonstrate that Willis had reasons for
his decision.
However, the minority also insists the reasons
proffered by the employer “must be taken as true,” minority at
18-19, without evaluation of the substance of those reasons.
See, e.g., id. at 32 (“[W]e must assume that the proffered
evidence is true.”). If the reasons proffered by a defendant-
employer must be taken as true, then the argument of the
minority that the employer’s reasons are not offered for their
truth, is logically precluded.
Additionally, if the proffered reasons are not offered
for their truth and only offered to demonstrate that the
employer had a legitimate reason, then a plaintiff could never
prove pretext in the third step of the Shoppe-McDonnell test.
That is, if the proffered reason is not offered for its truth,
then it could not be shown as a pretext for discrimination
because it was not offered as a true reason for the defendant-
employer’s action.
It is manifest that the reasons of the employer are
proffered for their truth, as it is unassailable that a court
would not accept as a legitimate, nondiscriminatory reason the
bare statement by an employer that an individual was not hired
because of an unspecified reason. Rather, an employer’s
statement could only provide a legitimate, nondiscriminatory
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reason to the court if the employer identifies and provides the
basis for that reason. Here, the substantive reasons proffered
were that Adams’ previous sales experience was in outside sales,
Adams had little to no experience selling to C-level corporate
executives, and Adams had said she disliked tedious work. These
statements were offered upon a central disputed issue in the
summary judgment proceeding for application in the second prong
of the Shoppe-McDonnell test and were intended by the employer
to be duly considered by the trial court as CDM’s articulation
of its legitimate, nondiscriminatory reasons for not hiring
Adams.37 Consequently, in compliance with our law of summary
judgment, Willis was required to have personal knowledge of the
matters asserted in his statements in order to satisfy the
burden of production imposed on CDM.
The minority further indicates that Willis’
Declaration was admissible “even if the . . . reasoning is based
on third-party information.” Id. at 35 (emphasis added).
However, there is no alternate standard by which evidence is
admitted under the Shoppe-McDonnell test. If the statement of a
37
In applying the second step of the Shoppe-McDonnell analysis,
the trial court was not required to ascertain whether Adams’ previous sales
experience was actually in outside sales, whether Adams had little to no
experience selling to C-level corporate executives, or whether Adams had said
she disliked tedious work; instead, assuming those reasons were provided in
admissible form, the trial court only needed to consider whether the
defendant-employer satisfied its burden of production to show that the
reasons provided were both non-discriminatory and related to Adams’ ability
to perform the work in question.
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party is offered to prove the truth of the matter asserted, the
report from a party not present in the court — i.e. “third-party
information” — remains inadmissible. HRE Rules 801, 802. The
undisputed facts are that Willis had no interaction with Adams.
As Willis could only have gained the information in his
declaration from Bera, his declaration is based on third-party
information; it is thus hearsay and is inadmissible.38 HRE Rule
802.
The minority does not contend that Willis’ statements
would be admissible at trial. If Willis were to testify at a
trial, he could only testify that he had acted based on
38
The cases cited by the minority do not reduce the requirement
that the evidence submitted must be admissible. See minority at 35 (citing
Rivera v. City & Cnty. of Denver, 365 F.3d 912 (10th Cir. 2004)); McDonald-
Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096 (10th Cir. 2011)).
In both cases, the second step of the McDonnell Douglas test was not in
dispute; thus in neither case did the court examine the admissibility of the
evidence supporting the legitimate, nondiscriminatory reason. Rivera, 365
F.3d at 920 (“[W]e address only the issue of pretext.”); McDonald-Cuba, 644
F.3d at 1102 (analyzing only the pretext issue).
Furthermore, in neither case was the personal knowledge of the
defendant regarding the relevant information disputed. In Rivera, a city
worker was disciplined for falsifying a work report. The minority seizes on
the fact that the supervisor “was informed” of certain information; however,
the information of which the supervisor “was informed” related to information
supporting the falsity of the report. Rivera, 365 F.3d at 918. The
supervisor based his actual decision on “all of the information before him,”
consisting of six specific reasons, including the supervisor’s own
calculations. Id. at 919.
Similarly, in McDonald-Cuba, the plaintiff-employee formed a
company that she registered on the Central Contracting Registry (CCR), a
database for government contractors, where it was identified as performing
security guard services. McDonald-Cuba, 644 F.3d at 1099. The employer
company president “discovered the CCR printout” and determined there was a
“huge conflict of interest” from plaintiff’s competing business and promptly
terminated the employee. McDonald-Cuba, 644 F.3d at 1099, 1103. Nothing in
McDonald-Cuba suggests the defendant lacked personal knowledge regarding the
plaintiff’s competing business.
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information provided to him without describing the substance of
that information. The information itself would be admissible
only through another witness with personal knowledge. Thus, the
contention of the minority that hearsay is admissible for the
“limited non-hearsay purpose” of articulating a legitimate,
nondiscriminatory reason for an adverse employment action is
contrary to HRCP Rule 56(e), which governs summary judgment
proceedings and unequivocally requires “facts as would be
admissible in evidence.” HRCP Rule 56(e) (2000) (emphasis
added).
Affidavits or testimony pertaining to employment
discrimination are not exceptions to the rule disallowing
hearsay. HRE Rule 802. As stated, allowing summary judgment to
be rendered on evidence that includes inadmissible hearsay is
contrary to Hawaiʻi law. See Munoz, 66 Haw. at 605, 670 P.2d at
826; Takaki, 87 Hawaiʻi at 69, 951 P.2d at 519; Lales, 133
Hawaiʻi at 361-62, 328 P.3d at 370-71. The minority’s analysis,
therefore, would create an exception with regard to employment
discrimination claims, allowing summary judgment to be based on
an affidavit that was premised upon inadmissible hearsay
statements. This would create a lower standard for evaluating
employment discrimination claims, contrary to the purpose of the
law to “protect and safeguard the right and opportunity of all
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persons to seek . . . employment . . . without discrimination.”
1963 Senate Journal at 866.
Weakening the evidentiary standard in this context
would create an additional layer of confusion to this already
complicated test and weaken the ability of individuals to avail
themselves of the protection of our laws; a danger that has been
previously recognized. See H.D. Goodall Hosp., 66 A.3d at 16
(Silver, J., concurring) (criticizing the use of the McDonnell
Douglas test in summary judgment); City of Des Moines, 387 F.3d
at 740 (Magnuson, J., concurring specially) (same); Coleman, 667
F.3d at 863 (Wood, J., concurring) (same); Colo. Dep’t of
Transp., 325 F.3d at 1225 (Hartz, J., concurring) (same); see
also Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. at
505, 522 (2008).
5. CDM did not articulate a legitimate, nondiscriminatory
reason
In summary, the justification of “no sales experience
in the prior five years” was not related to Adams’ ability to
perform as a telephone sales person at CDM because it was
negated as a hiring criterion by Willis, and it was controverted
as a required qualification for the position by statements in
the solicitation. “Sales experience in the prior five years”
also may have been an undisclosed hiring criterion that may have
been applied only to Adams. The remaining reasons proffered by
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***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***
Willis’ Declaration in subparagraphs (b), (c), and (d) were
inadmissible statements that may not be considered by a court.
Therefore, we conclude that CDM did not satisfy its burden to
produce a legitimate, nondiscriminatory reason for declining to
hire Adams as an International Media Sales Executive.39
IV. Conclusion
Based on the foregoing reasons, the ICA erred in
affirming the circuit court’s granting of summary judgment. The
ICA’s November 21, 2013 Judgment on Appeal and the circuit
court’s July 24, 2012 Final Judgment are vacated, and this case
is remanded to the circuit court for further proceedings
consistent with this opinion.
Charles H. Brower /s/ Sabrina S. McKenna
for petitioner
/s/ Richard W. Pollack
Diane W. Wong
for respondent /s/ Steven S. Alm
39
Adams presented a prima facie case of age discrimination and CDM
failed to satisfy its burden to produce a legitimate, nondiscriminatory
reason for not hiring Adams. As no legitimate reason was adduced, we need
not address pretext in the third step of the Shoppe-McDonnell analysis.
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