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Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-APR-2024
08:03 AM
Dkt. 73 SO
NO. CAAP-XX-XXXXXXX
IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAIʻI
JOY WINDHAM, Plaintiff-Appellant, v. STATE OF HAWAIʻI;
TOMMY JOHNSON, in his official capacity as Director,
State of Hawaiʻi, Department of Corrections and Rehabilitation; 1
JOHN AND JANE DOES 1-10; DOE PARTNERSHIPS 1-10;
DOE CORPORATIONS 1-10; and OTHER DOE ENTITIES 1-10,
Defendants-Appellees.
APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC15-1-001161)
SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)
Plaintiff-Appellant Joy Windham (Windham) appeals from
the Circuit Court of the First Circuit's 2 November 16, 2018 Final
Judgment Granting Defendants-Appellees State of Hawaiʻi (State)
and Nolan Espinda (Espinda) in His Official Capacity as Director
of the Department of Public Safety's motion for summary judgment
1 Pursuant to Hawaiʻi Rules of Evidence Rule 201 and Hawaiʻi Rules of
Appellate Procedure Rule 43(c)(1), we take judicial notice that Tommy Johnson
is the current Director of the Department of Corrections and Rehabilitation,
formerly known as the Department of Public Safety, in place of Nolan Espinda.
2 The Honorable Bert I. Ayabe presided.
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on claims of violations of the Hawaiʻi Whistleblower Protection
Act codified in Hawaiʻi Revised Statutes (HRS) § 378-62 (2015).
On appeal, Windham contends the circuit court "abused
its discretion in granting summary judgment" as "[t]here were
issues of fact remaining." 3
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the issues raised and the arguments advanced, we resolve this
appeal as discussed below.
We review the circuit court's grant of summary
judgment de novo. Dairy Rd. Partners v. Island Ins. Co., Ltd.,
92 Hawaiʻi 398, 411, 992 P.2d 93, 106 (2000).
HRS § 378-62 protects employees who report suspected
violations of the law:
§378-62 Discharge of, threats to, or discrimination against
employee for reporting violations of the law.
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee's
compensation, terms, conditions, location, or privileges of
employment because:
3 Windham also challenges numerous findings and conclusions made by the
circuit court. However, we need not address these challenges because "a
trial court deciding a motion for summary judgment doesn't make findings on
disputed material facts." See Drummond v. Cho, 153 Hawaiʻi 143, 527 P.3d 479,
CAAP-XX-XXXXXXX,
2023 WL 3017219, *1 n.4 (App. April 20, 2023) (SDO);
Alexander & Baldwin, Inc. v. Silva, 124 Hawaiʻi 476, 480-81,
248 P.3d 1207,
1211-12 (App. 2011).
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(1) The employee, or a person acting on behalf of the
employee, reports or is about to report to the employer, or
reports or is about to report to a public body, verbally or
in writing, a violation or a suspected violation of:
(A) A law, rule, ordinance, or regulation,
adopted pursuant to law of this State, a political
subdivision of this State, or the United States; or
(B) A contract executed by the State, a
political subdivision of the State, or the United States,
unless the employee knows that the report is false; or
(2) An employee is requested by a public body to
participate in an investigation, hearing, or inquiry held
by that public body, or a court action.
(Formatting altered.)
As we have stated in prior cases, an employee making
an HRS § 378-62 claim must prove:
(1) [she] engaged in protected conduct under [HRS § 378-62],
(2) the employer took an adverse employment action against the
employee, and (3) a causal connection exists between the
employee's protected conduct and the employer's adverse action
(i.e., the employer's action was taken because the employee
engaged in the protected conduct; the employee has the burden of
showing that the protected conduct was a "substantial or
motivating factor" in the employer's decision to take the
employment action).
Fukumoto v. State, 150 Hawaiʻi 467, 504 P.3d 1055, CAAP-16-
0000785,
2022 WL 591775, at *2 (App. Feb. 28, 2022) (mem. op.);
see Crosby v. State Dep't of Budget & Fin., 76 Hawaiʻi 332, 341-
42,
876 P.2d 1300, 1309-10 (1994).
The State, as the movant, bore the initial burden of
establishing entitlement to summary judgment. See Ralston v.
Yim, 129 Hawaiʻi 46, 59-61, 292 P.3d 1276, 1289-91 (2013). A
defendant moving for summary judgment "may satisfy his or her
initial burden of production by either (1) presenting evidence
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negating an element of the non-movant's claim, or
(2) demonstrating that the nonmovant will be unable to carry his
or her burden of proof at trial." Id. at 60, 292 P.3d at 1290.
In other words, the movant's "burden may be discharged by
demonstrating that if the case went to trial, there would be no
competent evidence to support a judgment for his or her
opponent." Kondaur Cap. Corp. v. Matsuyoshi, 136 Hawaiʻi 227,
240,
361 P.3d 454, 467 (2015) (cleaned up).
In its motion for summary judgment, the State
acknowledged that some of Windham's actions constituted
protected conduct. But the State argued that Windham could not
meet her burden of showing she suffered adverse employment
action or establish causal connection between her protected
conduct and the alleged retaliation. Finally, the State argued
that even if Windham was able to meet her burden, the State's
actions were based on legitimate, nondiscriminatory reasons.
To support these arguments, the State attached
declarations from Espinda, Jodie Maesaka-Hirata, Alan Asato
(Asato), and Colleen Miyasato. The State also attached other
documents including transcripts of Windham's deposition, the
position description for the Corrections Program Specialist II
position, a December 11, 2014 email from Windham with the
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heading "CONFIDENTIAL for FEAR of RETALIATION", and information
regarding office space standards.
Even if we were to assume the State met its burden,
Windham responded by "setting forth specific facts showing that
there is a genuine issue for trial." Kondaur, 136 Hawaiʻi at
240-41, 361 P.3d at 467-68 (cleaned up).
In response to the State's argument that she could not
show adverse employment action, Windham claimed among other
things that she was moved from an office to a storage closet,
singled out to follow a list of workplace behaviors, and was
stripped of duties. Examined in light most favorable to
Windham, these actions could be construed as "adverse employment
action[s]." See Fukumoto, 2022 WL 591775, at *9 ("[A]n action
is cognizable as an adverse employment action if it is
reasonably likely to deter employees from engaging in protected
activity.") (quoting Black v. Correa, Civil No. 07-00299 DAE-
LEK, 2008 WL 3845230 at *11 (D. Haw. Aug. 18, 2008)).
In response to the State's argument that she could not
show causation, Windham notes that on June 15, 2015, she filed
her complaint in circuit court and on July 28, 2015, she
reported to Asato "problems with the 'new' timesheet . . . ,
employees not working 8 hours, but getting paid, Ms. [G]
frequently surfing the internet, extended 2-3 hour lunch breaks,
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the 'Lunch Bunch' that Deputy Director Asato belonged to."
Then, on August 12, 2015, Asato presented Windham with a list of
behavior issues she must address. Examined again in the light
most favorable to Windham, the temporal proximity of these
events raises a question of fact as to causation. See Dobbs v.
Cnty. of Maui, 144 Hawaiʻi 61, 434 P.3d 1256, CAAP-XX-XXXXXXX,
2019 WL 762407, at *4 (App. Feb. 20, 2019) (SDO) (noting a
"circumstantial case" can be established by demonstrating
temporal proximity between an adverse employment action and
protected conduct known to employer).
The State points out that an employee's prima facie
case may be overcome by articulating a "legitimate,
nondiscriminatory reason for the adverse employment action."
Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368, 378, 14 P.3d 1049,
1059 (2000). The State offered several ostensibly legitimate
reasons for their actions. For example, Asato explained that
the August 12, 2015 meeting was to encourage Windham "to stay
focused on her job duties/responsibilities, and not to worry
about the duties/responsibilities of her co-workers."
Similarly, the State used its internal space standards to
justify relocating Windham's workspace.
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However, under the McDonnell Douglas framework, an
employee may rebut the employer's nondiscriminatory reasons as
pretext. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804-05
(1973); Adams v. CDM Media USA, Inc., 135 Hawaiʻi 1, 14,
346 P.3d
70, 83 (2015). Here, the temporal proximity of the State's
actions constitutes a genuine issue as to whether the State's
provided reasons were a pretext to punish Windham. See
Fukumoto,
2022 WL 591775, at *11 ("In some cases, temporal
proximity can by itself constitute sufficient circumstantial
evidence of retaliation for purposes of both the prima facie
case and the showing of pretext.") (citation omitted). In other
words, based on the record before this court, the State failed
to show that Windham would be unable to demonstrate the State's
reasons for its actions were pretextual. See id. at *12
("[V]iewing the evidence in the light most favorable to
Fukumoto, the State did not negate that Fukumoto could show
pretext nor did it demonstrate that Fukumoto would be unable to
carry her burden at trial of showing that the State's proffered
reasons were pretextual.").
Based on the foregoing, the circuit court erred in
granting summary judgment. Thus, we vacate the circuit court's
November 16, 2018 Final Judgment, and remand this case for
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further proceedings consistent with the summary disposition
order.
DATED: Honolulu, Hawaiʻi, April 19, 2024.
On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Shawn A. Luiz,
for Plaintiff-Appellant. /s/ Karen T. Nakasone
Associate Judge
James E. Halvorson,
Claire W.S. Chinn, /s/ Sonja M.P. McCullen
Deputy Attorneys General, Associate Judge
for Defendants-Appellees.
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