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Gao v. State

Supreme Court of Hawaii

May 18, 2016

GENBAO GAO, Petitioner/Claimant-Appellant,
STATE OF HAWAI'I, DEPARTMENT OF THE ATTORNEY GENERAL, Respondent/Employee-Appellee, Self-Insured.

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS (CAAP-14-0000694; CASE NO. AB 2009-020 (2-08-40165))

          Louise K. Y. Ing and Zachary M. DiIonno for petitioner

          James E. Halvorson and Maria C. Cook for respondent



          McKENNA, J.

         I. Introduction

         On September 2, 2015, this court accepted an Application for Writ of Certiorari ("Application") submitted by Petitioner/Claimant-Appellant Genbao Gao ("Gao"). The Labor and Industrial Relations Appeals Board ("LIRAB") had found that Gao's workplace psychological injury was attributed to a "Notice to Improve Performance" ("NTIP") issued by Gao's employer, the State of Hawai'i, Department of the Attorney General ("Employer" or "State"), relating to Gao's work as a statistician. LIRAB then concluded in a Decision and Order filed January 31, 2014 ("Decision"), that the NTIP was a "reprimand" as defined in HRS § 386-1 (Supp. 2005), and that therefore his injury was not compensable pursuant to HRS § 386-3(c) (Supp. 1998). The ICA affirmed LIRAB's Decision, concluding, in relevant part, that

LIRAB did not err in concluding that [Gao]'s psychological injury allegedly sustained on January 28, 2008 resulted solely from "disciplinary action" as defined by HRS § 386-1 and therefore that [Gao]'s workers' compensation claim [against Respondent/Employer-Appellee, Department of Attorney General ("Employer")] was barred by HRS § 386-3(c). Furthermore, [Gao] failed to establish that Employer acted without proper cause when it issued the NTIP [Notice to Improve Performance] or held the meeting with Gao to discuss the NTIP.

Gao v. State, No. CAAP-14-0000694, at 5 (App. Apr. 23, 2015) (SDO).

         In his pro se Application, Gao presented two questions:

a. Could groundless accusations be equated to "disciplinary actions taken with good faith";
b. Could [LIRAB] and ICA alter the definition of Work Compensation law?

         These questions were based on Gao's arguments that: (1) any "disciplinary action" taken against him was based on "groundless accusations" and therefore was not taken in "good faith"; and (2) the ICA deviated from the statutory definition of "disciplinary action" when it affirmed LIRAB's Decision because the NTIP was not a "reprimand." After Gao obtained counsel through the Hawai'i Appellate Pro Bono Pilot Project, this court ordered supplemental briefing on the following issue:

Whether the Notice to Improve Performance ("NTIP") issued to Petitioner was "disciplinary action, " as defined in HRS § 386-1 (Supp. 2005) and used in HRS § 386-3(c) (Supp. 1998), when viewed in the light of the statutes' legislative histories.

         The parties timely filed supplemental briefs, and oral argument was heard.

         For the following reasons, this court holds that Gao's NTIP was not "disciplinary action, " as that term is defined and used in HRS §§ 386-1 and 386-3. Accordingly, Gao's workers' compensation claim is not barred by HRS § 386-3(c). The legislative histories of HRS §§ 386-1 and 386-3 (c) indicate that the legislature intended to include reprimands, suspensions, and discharges that impose a sanction or punishment, but not NTIPs, such as Gao's, in its definition of "disciplinary actions." In addition, the State's Performance Appraisal System's ("PAS['s]") Supervisory Manual ("Manual")[1] for civil service employees, mandated by HRS § 76-41 (Supp. 2000), clearly provides that NTIPs are not disciplinary letters. Thus, we vacate the ICA's May 21, 2015 Judgment on Appeal entered pursuant to its April 23, 2015 Summary Disposition Order, and remand this matter to LIRAB for further proceedings consistent with this opinion.

         II. Background

         This case concerns a February 8, 2008 workers' compensation claim filed by Gao, a member of Unit 13 of the Hawaii Government Employees Association ("HGEA" or "Union"). That claim identified "Jan. 28, 2008" as his date of injury. On that date, at a scheduled meeting between Gao and his supervisors, Gao was issued an NTIP dated January 24, 2008. Gao's Union representative was also present at the meeting, as one of Gao's supervisors had informed Gao by e-mail that although Gao did not have a right to union representation at the NTIP meeting, the supervisor was willing to permit a Union representative to attend. The NTIP stated:

Dear Mr. Gao:
Your immediate supervisor, Mr. Paul Perrone, has informed me that your work performance has declined to the point that you are not meeting the performance requirements/expectations of your position. I also understand that your job performance deficiencies and suggestions for improvement have been discussed with you on several occasions.
I am, therefore, placing you on notice that you are being given a period of three months, from January 25, 2008 through April 25, 2008, to bring your performance up to a satisfactory level.
The areas in which your job deficiencies are apparent are noted below. I have included instructions for improving your performance and what your supervisor will do to help you.
1. Assignments are incomplete and not in accordance with instructions.
(A) All instructions of assignments and other duties will be given to you in writing or email by Supervisor Perrone, including, when applicable, the due date. You need to review the instructions and acknowledge receipt in writing or email immediately to Supervisor Perrone and, if necessary, ask in writing or email for any necessary clarification of the instructions within two work days. This will assist you in completing your assignments in accordance with instructions.
(B) To help you understand your assignments better and reduce possible misunderstandings or miscommunication at work, Supervisor Perrone will assist you in enrolling in the Department of Human Resources Development's "Communicating at Work" training class.
(C) Your quarterly projects status reports were not completed as instructed. Each staff member's report is important, as it contributes to the branch's overall research plan and schedule. Your next report will be assigned to you shortly; you are to submit this report on time and as instructed. Mr. Perrone has developed a special template for you to use to report the status of your preparation of the annual Uniform Crime Report.
2. Assignments not completed on time.
(A) If you are unable to complete an assignment on time, you need to inform Supervisor Perrone immediately in order to request an extension. You are to provide the following information: (1) a copy of the work that you have completed to date on the assignment; (2) the specific reason(s) for your delay in completing the assignment; and (3) a suggested, new due date, with the specific, revised timeline for completion. It will be Supervisor Perrone's determination if adjustments are appropriate. These procedures may help to resolve any confusion and ensure completion of your assignments on a timely basis.
(B) To assist you in managing your workload, submit a weekly progress report to Supervisor Perrone, in writing or email due on the last work day of each week. This report shall describe the tasks you have worked on, the number of hours spent on each one, and any new issues and/or developments that may affect your work. The progress reports will facilitate communications with your supervisor and may ensure timely completion of your assignments.
(C) Supervisor Perrone will assist you in enrolling in a Fred Pryor Seminar, "Managing Multiple Priorities, Projects, and Deadlines, " that will be held at the Sheraton Hotel Waikiki on January 31, 2008. This seminar should help you strengthen your ability to plan, schedule, and complete work on concurrent assignments in a timely manner.
(D) Your Identity Theft Data Elements assignment is past due and needs to be completed as previously instructed, no later than ten work days from the date of this letter. Mr. Perrone will discuss the instruction with you again in order to ensure proper completion of your work.
I hope your performance will improve to a satisfactory level. Supervisor Perrone is willing to work closely with you in this effort. However, if your performance remains unsatisfactory, appropriate action may be taken at the end of the three-month period. This may include an extension of the improvement period, transfer ...

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