As corrected March 11, 2015.
[Copyrighted Material Omitted]
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS. CIV. NO. 11-1-0931.
Charles H. Brower, for petitioner.
Diane W. Wong, for respondent.
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.
[135 Hawai'i 4] POLLACK, J.
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 Hawai'i Revised Statutes (HRS) § 378-2. The discriminatory 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 [135 Hawai'i 5] 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 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:
o Competitive starting salary aggressive commission and bonus package (Realistic first year OTE 70k)
o First-class Sales Training Program from the best in the industry
o Lucrative sales prizes for top-performers
o Generous paid time off programs ' Comprehensive training sessions
o Health/Dental benefits
o Career development opportunities
o Referral bonuses for bringing in new sales talent
o Being a contributor to REAL growth
o Sales experience preferred
o Detail-oriented and organized
o Strong communication skills
o Willingness to take on new challenges
o 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.
CDM's hiring procedure at the time was as follows:
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 [135 Hawai'i 6]
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 Hawai'i, 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 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 ...