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Simmons v. Aqua Hotels and Resorts, Inc.

Intermediate Court of Appeals of Hawai‘i

August 22, 2013

Maydene I. SIMMONS, Plaintiff-Appellant,
AQUA HOTELS AND RESORTS, INC., a foreign Profit Corporation; Kai Management Services LLC, dba Kauai Beach Resort, a Domestic Limited Liability Company; John Does 1-10 and Jane Does 1-10, Defendants-Appellees.

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[Copyrighted Material Omitted]

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Clayton C. Ikei, Honolulu, Jerry P.S. Chang, (Law Office of Clayton Ikei), on the briefs, for Plaintiff-Appellant Maydene I. Simmons.

Stefan M. Reinke, Malia E. Schreck, (Lyons, Brandt, Cook & Hiramatsu), Honolulu, on the briefs, for Defendants-Appellees Aqua Hotels and Resorts, Inc. and Kai Management Services LLC.

FOLEY, Presiding Judge, REIFURTH and GINOZA, JJ.



[130 Hawai'i 327] In an appeal arising out of an age discrimination lawsuit, Plaintiff-Appellant Maydene I. Simmons (Plaintiff) appeals from a September 18, 2012 final judgment entered in the Circuit Court of the Fifth Circuit [1] (CIRCUIT COURT) IN favor of defendants-appellees aqua hotels and Resorts, Inc. (Aqua Hotels) and Kai Management Services, LLC (Kai Management) (collectively, Defendants). The circuit court granted summary judgment in Defendants' favor on all counts of Plaintiff's complaint.


Plaintiff was employed as the Director of Sales and Marketing (DOSM) at the Kauai Beach Resort (KBR) from 2006 through 2009 by Anekona LLC. In 2009, Anekona LLC filed for bankruptcy, and on July 24, 2009, Kai Management assumed management responsibilities for KBR and absorbed all existing employees of KBR, including Plaintiff. Kai Management is a wholly owned subsidiary of Aqua Hotels. Throughout her employment at KBR, Plaintiff had a house on Oahu and returned to Oahu during weekends. KBR provided her with a room in the hotel during the week and paid for her weekly round-trip airfare.

On June 29, 2010, Robin Graf (Graf), the general manager of KBR, met with Plaintiff and informed her that at the end of August KBR would no longer pay for her weekly travel and hotel accommodations. At the time, KBR was restructuring after undergoing foreclosure in 2009, and Graf stated the decision was a cost-cutting measure and not a performance issue. He further stated Plaintiff's job was not being eliminated but because the hotel wanted a DOSM who lived on Kauai, Plaintiff would need to relocate from Oahu to continue her employment. Plaintiff said she did not plan to move to Kauai. During this conversation, Graf learned that Plaintiff was 64 years old.

On July 30, 2010, Graf sent Plaintiff a letter confirming their conversation. He asked that she respond by August 2 with " [her] intentions in regards to performing and fulfilling [her] job responsibilities should [she] not decide to relocate to Kauai." Plaintiff responded accordingly by email on August 2, 2010, informing Graf that she intended to relocate to Kauai and continue her employment, and she agreed to the elimination of her commuting benefits. Plaintiff copied her email to Guy Underkoffler (Underkoffler), Senior Vice-President of Operations for Aqua Hotels and Chief Operating Officer of KBR, and Sanford Nojima (Nojima), Director of Human Resources for Aqua.

The next day, Graf emailed Nojima, Underkoffler, and Shanamae Andres (Andres), KBR's human resources manager, confirming Plaintiff's decision to relocate. Graf also raised the need to redefine the DOSM position as part of KBR's overall restructuring. Specifically, the email proposed a redefined job description that eliminated marketing responsibility from the position, emphasized local sales, and reduced the position's salary.

Graf drafted a letter to Plaintiff dated August 5, 2010 summarizing the changes and changing the job title to Director of Sales (DOS). Graf wrote he would discuss his expectations with Plaintiff after she reviewed the job description. Graf later testified he could not recall whether he sent this letter to Plaintiff, however.

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[130 Hawai'i 328] On August 12, 2010, Graf met with Plaintiff and informed her he was eliminating the DOSM position, and her employment would terminate at the end of the month. He stated Plaintiff could apply for the DOS position but would have to start as a new hire. Plaintiff did not apply for the DOS position, and on November 2, 2010, KBR hired a 52-year old woman to fill the position.

On February 7, 2011, Plaintiff jointly filed a complaint alleging age discrimination with the federal Equal Employment Opportunity Commission (EEOC) and the Hawai‘i Civil Rights Commission (HCRC). Plaintiff named Kai Management as the respondent in both complaints and alleged she was terminated because of her age. On March 22, 2011, the HCRC issued ...

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