ZAK K. SHIMOSE, Petitioner/Plaintiff-Appellant,
HAWAI'I HEALTH SYSTEMS CORPORATION dba HILO MEDICAL CENTER, Respondent/Defendant-Appellee
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. (CAAP-12-0000422; CIV. NO. 09-1-383).
Zak K. Shimose, petitioner, Pro se.
Sarah O. Wang, and Darin R. Leong, for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, AND POLLACK, JJ., AND CIRCUIT JUDGE ALM, IN PLACE OF ACOBA, J., RECUSED.
[134 Hawai'i 481]
Subject to some restrictions, Hawai'i Revised Statutes (HRS) § 378-2.5 (Supp. 2007) allows employers to deny employment based on an individual's conviction record " provided that the conviction record bears a rational relationship to the duties and responsibilities of the position." In 2007, Petitioner Zak K. Shimose (Shimose) applied for employment as a radiological technician (radtech) at Hawai'i Health Systems Corporation (HHSC) dba Hilo Medical Center (HMC) (collectively HHSC/HMC). HHSC/HMC rejected Shimose's application based solely on his prior conviction for possession with intent to distribute crystal methamphetamine. The primary issue in this case is whether, as a matter of law, HHSC/HMC established the existence of a rational relationship between the radtech position and Shimose's prior drug conviction that would entitle it to summary judgment. We hold that it did not.
Shimose was convicted of possession with intent to distribute crystal methamphetamine on August 28, 2001, and sentenced to 37 months in prison. While in prison, Shimose completed a bachelor's degree in philosophy at the University of Hawai'i, Hilo, and began investigating the radtech associates degree program at Kapiolani Community College (KCC). Shimose was released on March 7, 2003.
Shimose matriculated into KCC's radtech program in August of 2005. As part of the program, Shimose was assigned to HMC to complete a clinical rotation at HMC's imaging department. Shortly after the rotation began, HHSC/HMC initiated a suitability investigation into Shimose's background. HHSC/HMC concluded that Shimose's felony drug conviction disqualified him from participating in a clinical rotation at an HHSC facility, and removed him from the program. Shimose completed his clinical requirements at another medical facility and graduated from the radtech program in the spring of 2007.
Shimose applied for a vacant radtech position at HMC on June 15, 2007, and submitted
[134 Hawai'i 482] a second application on July 30, 2007. In August of 2007, HMC verbally indicated that Shimose would not be hired for the radtech position. Shimose submitted a request for administrative review with HHSC/HMC on November 1, 2007. On September 16, 2008, HHSC/HMC sent Shimose a letter indicating that he was disqualified from consideration for the radtech position because of his conviction for possession with intent to distribute a controlled substance.
Shimose filed a complaint with the Hawai'i Civil Rights Commission (Commission) on September 6, 2008, alleging a violation of HRS § 378-2 (Supp. 2007). The Commission determined that " the medical center was lawfully entitled to consider [Shimose's] 2001 felony drug conviction in accordance with HRS § 378-2.5(a), and the conviction disqualified [him] from the position."  The Commission issued a notice of dismissal and right to sue letter on August 6, 2009. On October 25, 2009, Shimose filed suit in the circuit court alleging violations of HRS § 378-2 and article I, section 5 of the Hawai'i Constitution.
The parties filed cross-motions for summary judgment in December of 2011. In its cross-motion for summary judgment, HHSC/HMC asserted that the following facts were undisputed: (1) Radtechs treat vulnerable patient groups including children, geriatrics, and disabled patients; (2) many patients receiving treatment are in compromised physical and mental states and/or are receiving pain medication; (3) radtechs are often alone and unsupervised when imaging patients; (4) radtechs have access to patient charts that disclose what medications a patient is receiving; (5) radtechs have access to " an array of drugs that are not readily available to the public, as well as related supplies such as syringes and needles." 
With respect to pharmaceutical substances and supplies, HHSC/HMC alleged that radtechs have access to crash carts, drug reaction boxes, and anesthesia carts, and it attached exhibits that listed the contents of crash carts and drug reaction boxes. HHSC/HMC also asserted that radtechs have access to virtually all areas of the hospital, and that many of those areas contain stored quantities of drugs and related supplies.
Based on these factual assertions, HHSC/HMC argued that it was entitled to summary judgment because a rational relationship existed between Shimose's conviction and the duties of a radtech. First, although HHSC/HMC did not specify what controlled substances a radtech might access, it argued that individuals with a felony drug conviction are unfit to handle controlled substances. Further, HHSC/HMC argued that individuals with a felony drug conviction are unfit to handle the non-controlled pharmaceuticals that were listed on the exhibits attached to the declaration of Reynold Cabarloc, as well as syringes and needles. Second, HHSC/HMC argued that individuals with a felony drug conviction are unfit to interact with patients who are currently taking medicine or are otherwise vulnerable. HHSC/HMC
[134 Hawai'i 483] stated: " [T]here is an opportunity and risk that a vulnerable patient, who may be taking prescribed drugs and may be in significant pain, would have their medication taken from them and/or would be sold an illegal drug."
Shimose disputed several of the material facts that HHSC/HMC had alleged. First, Shimose disputed that radtechs have access to controlled substances and/or areas of the hospital where controlled substances are kept. Although Shimose admitted that radtechs have access to crash carts and drug reaction boxes, he asserted that neither crash carts nor drug reaction boxes contain controlled substances. Shimose attached the DEA's list of federally controlled substances to his motion and noted that none of the substances contained in crash carts or drug reaction boxes appeared on that list. See 21 U.S.C. § 812 (2012); 21 C.F.R. § § 1308.11-1308.15 (2014). Shimose asserted that anesthesia carts do not contain controlled substances and that they are locked and controlled by an anesthesiologist at all times. Shimose also asserted that all controlled substances at HMC are strictly secured in the hospital pharmacy and that radtechs do not have access to the pharmacy. Finally, Shimose contended that even " non-addictive drugs which are not restricted. .. are still strictly locked and supervised."
Second, Shimose asserted that radtechs do not have greater access to vulnerable patient groups than visitors to the hospital, and that the level of contact with such groups is equal to that of any other profession. Specifically, Shimose asserted that radtechs are not often alone with vulnerable patients because those patients usually require the assistance of one or more additional hospital care workers. Shimose also asserted that contact with in-patients does not provide access to controlled substances because those substances are administered exclusively from authorized sources and are never left unattended in an in-patient's room. Finally, Shimose asserted ...