ARLEY H. NOZAWA, Petitioner/Plaintiff-Appellant,
OPERATING ENGINEERS LOCAL UNION NO. 3, Respondent/Defendant-Appellee,
CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
(CAAP-14-0000021; CIVIL NO. 11-1-2 623-10)
Charles H. Brower and Michael Healy for petitioner.
K. Ikeda and David A. Rosenfeld for respondent.
RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON,
case involves a claim brought by an employee against her
former employer for allegedly terminating her on the basis of
her gender. The circuit court granted summary judgment in
favor of the employer, striking a declaration submitted in
opposition and also rejecting the employee's own
declarations as uncorroborated, self-serving, and conclusory.
We hold that Rule 56(e) of the Hawai'i Rules of Civil
Procedure does not preclude an affidavit from being
self-serving, nor does it require an affidavit to be
corroborated by independent evidence. In addition, unlike the
employee's declarations in this case, an affidavit is
conclusory if it expresses a conclusion without stating the
underlying facts or reaches a conclusion that is not
reasonably drawn from the underlying facts.
hold that the circuit court abused its discretion in striking
a declaration submitted by the employee that complied with
the circuit court's order allowing supplemental briefing.
Accordingly, in light of the admissible evidence, there was a
genuine issue of material fact as to whether the
employer's proffered reasons for the employee's
termination were based on pretext, and thus we conclude that
the circuit court erroneously granted summary judgment in
favor of the employer.
Engineers Local Union No. 3 (Local 3) is a labor organization
with headquarters in Alameda, California. Local 3 operates a
hiring or referral hall in accordance with its collective
bargaining agreement with signatory contractors. Local 3 has
a district office in the State of Hawai'i (district
office) that is managed by the local district representative
with the assistance of an Officer-in-Charge, who is
physically located in California.
September 11, 2006, Arley Nozawa was hired as an at-will
employee for the single hiring hall dispatcher position in
the district office. As a dispatcher, Nozawa was responsible
for referring union members to employers in accordance with
Local 3's Job Placement Regulations (JPR). In July 2010,
Dan Reding became the Officer-in-Charge of the district
office, responsible for the hiring and firing decisions for
Local 3 with the approval of the business manager, Russell
January 2011, Pane Meatoga was appointed as the district
representative. Meatoga expressed a desire to bring in his
own secretary and organizer. At the time, the district
office's sole organizer was Donald Gentzler, who also
performed the role of dispatcher when Nozawa was absent. Two
days after Meatoga's effective start date, on February 3,
2011, Nozawa received a termination letter dated January 27,
2011. The termination letter read in pertinent part as
follows: "I regret to inform you that due to a
reorganization and restructuring of the Hawaii district
office operations, your employment with Operating Engineers
Local Union No. 3 will be terminated as of February 3,
2011." Gentzler replaced Nozawa as dispatcher effective
February 4, 2011, and remained in that position until July
31, 2012--when he was reassigned to the organizer position.
October 31, 2011, after exhausting her administrative
remedies, Nozawa filed a complaint against Local 3 in the
Circuit Court of the First Circuit (circuit court), alleging
inter alia that Local 3 violated Hawaii Revised Statutes
(HRS) § 378-2 by terminating her on the basis of her
gender. The complaint asserted that Nozawa was
suddenly and without cause terminated from her position as
dispatcher by Local 3 and immediately replaced with a male
dispatcher who received a pay raise and an increase in work
hours, despite work hours having been previously reduced for
all dispatchers. In addition, the complaint contended that at
the time of her termination, Nozawa did not have any
performance problems and was fully capable of performing her
dispatcher duties in an exemplary manner. Local 3 denied the
allegations of gender discrimination in its answer to
February 12, 2013, Local 3 filed a motion for summary
judgment, which included declarations from Toni Mendes and
Reding. Mendes identified herself as Local 3's office
systems and job placement center coordinator and stated that
her workplace was in Sacramento, California. Mendes declared
that she began closely monitoring the technical aspects of
Nozawa and other dispatchers' work performance in late
2008. Attached to Mendes' declaration was a JPR provision
providing that, subject to some exceptions, a dispatched
employee who does not work at least forty-eight hours
straight is entitled to return to the employee's former
position on the out-of-work list. Mendes stated that Nozawa
committed a serious dispatching error in January 2010 when
she did not properly restore an employee, Richard Conradt, to
his former place on the list in accordance with the JPR.
declaration, Reding stated that Conradt subsequently filed an
unfair labor practice claim against Local 3, which it settled
by paying Conradt $19, 866.40 in lost wages and fringe
benefits and $5, 500 in legal fees. Reding maintained that no
other dispatcher had ever committed an error of this nature.
Reding further stated that he sought and received Burns'
approval to terminate Nozawa as a result of the error, but
Eugene Soquena, the district representative at the time,
requested that Nozawa be given a last chance to improve.
Hence, Reding continued, Nozawa was given a Final Written
Warning (Warning letter), dated April 19, 2010. The Warning
letter read as follows:
It has come to our attention that you continue to make
numerous mistakes in the discharge of your duties as
Dispatcher. Among others, key areas of deficiencies is your
lack of a clear grasp and understanding of the Hawaii Job
Placement Regulations (JPR). Consequently, this has caused
you to dispatch members improperly. Additionally, there is an
inordinate amount of registration overrides caused by errors.
Some of these overrides used incorrect dates which allowed
our members and others to be dispatched incorrectly,
seriously exposing our local to potential legal liability.
Recently, this transgression manifested itself in the
dispatch of member Richard Conrad, Jr. We are still assessing
the potential damage this error may ultimately cause.
This will serve notice to you that any further mistakes on
your behalf in carrying out your duties, will result in the
immediate termination of your employment with OE3.
Additionally, if in the course of our investigation in the
processing of Mr. Conrad's registration and dispatch, we
find additional errors, you will be subject to immediate
termination of employment.
also stated in her declaration that, even prior to the error
involving Conradt and after the Warning letter, Nozawa made a
number of recurring errors related to registration overrides
and the placement of employees on the out-of-work list.
According to Mendes, from late 2008 until Nozawa's
termination, Mendes engaged in an effort to train Nozawa but
she continuously failed to fully comprehend the dispatching
rules and procedures. As examples, Mendes attached email
correspondences between herself and Nozawa from June to
August 2010 in which they discussed the timing of monthly
registration lists, an override adjustment for an employee,
and the dues for retirees.
declared that his suggestion to Meatoga to replace Nozawa
with Gentzler was based on Gentzler's impending
displacement as organizer and the reports of Mendes that
Nozawa continued to make dispatching errors following the
Warning letter. Gentzler was hired in September 2007 as an
organizer, Reding stated, and he had extensive experience
with the JPR and the collective bargaining agreement and had
not received any written warnings for deficient work
performance. Reding also explained that the increase in work
hours for Gentzler was based on a preexisting plan to return
dispatchers to the forty-five-hour week, as well as the lack
of a backup dispatcher.
on these declarations, Local 3 argued that in reorganizing
the district office, it decided to terminate Nozawa in order
to retain Gentzler, an experienced dispatcher with no history
of work performance problems and a clean disciplinary record.
Local 3 thus maintained that it had articulated legitimate,
nondiscriminatory reasons for Nozawa's termination.
opposition, Nozawa averred in her declaration that she was
falsely accused of making an error regarding the placement of
Conradt and that she had followed proper protocol. Nozawa
stated that her supervisor at the time, Soquena, never
informed her during her employment of any work performance
problems that he had perceived. Soquena stopped the impending
termination because she had not made a mistake, Nozawa
explained, and she signed the Warning letter but disputed
that she had made a mistake.
Nozawa stated in her declaration that she had always received
excellent employment evaluations, she did not have work
performance problems when she was terminated, and she was
fully capable of performing her job at the time of
termination. Pointing to the termination letter she received,
Nozawa attested that her termination was the result of an
alleged reorganization and restructuring, not disciplinary
action, and that she was terminated without cause. Nozawa
also declared that Gentzler had little experience as a
dispatcher and that when he replaced her, his work hours
increased at an increased pay.
argued in her opposition that she received no further
write-ups or warnings following the Warning letter and that,
based on the record, there were issues of material fact
related to her termination that required denial of Local
replied, attaching a supplemental declaration from Mendes
stating that she supervised the technical aspects of
Nozawa's work performance and it was her honest
assessment that Nozawa had performance issues. Mendes
disputed that Nozawa had always received excellent employment
evaluations, that she did not have performance problems and
was fully capable of performing her job at the time of
termination, and that she was falsely accused of the error
argued in its reply that Nozawa provided
"uncorroborated, self-serving, conclusory
statements" that did not satisfy the requirements of
Hawai'i Rules of Civil Procedure (HRCP) Rule 56(e) and
were insufficient to defeat summary judgment. Local 3 also
contended that Nozawa was not competent to testify to matters
related to her own work performance and qualifications.
Local 3 submitted that Nozawa's termination was based on
its honest belief that reorganization was the most practical
method of accommodating Meatoga's desire to hire a new
organizer. Local 3 added that there was no evidence anyone
other than Nozawa committed the error involving Conradt and
that, in any event, Nozawa was not terminated because of this
error. Local 3 also asserted that the fact that Nozawa did
not receive a further write-up after the Warning letter did
not establish pretext because Nozawa was an at-will employee
who could be terminated at any time, "for any reason,
fair or unfair, with or without notice or warning."
the initial hearing on the motion for summary judgment,
Local 3 moved for leave to submit supplemental briefing,
contending that it was necessary for the court to receive
documents pertinent to certain declarations made by Nozawa.
The circuit court granted the motion and issued an order,
stating that Local 3 "has leave to file a Supplemental
Memorandum in Support of its Motion" and Nozawa
"may file a Supplemental Memorandum in Opposition
addressing Defendant's Supplemental Memorandum."
3's supplemental reply, which included exhibits and a
declaration from Mendes,  argued that Nozawa had committed
placement errors involving Conradt, that Nozawa made
subsequent errors, and that Reding recommended that Nozawa be
terminated as part of a staffing reorganization. Local 3
maintained that, based on these facts, there was no evidence
of dishonesty or pretext and that an employer's belief
that an employee committed misconduct is a legitimate,
nondiscriminatory reason for termination.
filed a supplemental opposition supported by her declaration
and a declaration from Local 3's former treasurer,
William Mahoe (Mahoe Declaration). In his declaration, Mahoe
stated that he was appointed treasurer of Local 3 in January
2009. He averred that, while serving as treasurer, he
attended union meetings in 2009 and 2010 at which Burns,
Reding, and other Local 3 officers were present. Mahoe stated
that at these meetings the officers of Local 3 discussed
replacing women dispatchers with men, to which he objected.
Mahoe also stated that he wanted Nozawa to remain in her
position as dispatcher; he felt that she was doing a good
job. Mahoe indicated that he resigned from Local 3 on January
23, 2011, and that he understood Nozawa was replaced by a
male dispatcher shortly thereafter.
declaration, Nozawa explained that Conradt constantly worked
jobs of short duration and that, in accordance with the JPR,
she placed him at the bottom of the out-of-work list until he
provided the necessary paperwork showing that he was laid off
prior to working forty-eight hours straight. When Conradt
provided the required documentation, Nozawa averred, she
would perform an override to return him to his former
position on the list after obtaining the requisite
authorization code from Mendes. Nozawa argued in her
supplemental opposition that the alleged mistakes asserted by
Local 3 were merely a pretext for gender discrimination.
Nozawa's argument at a second hearing on the motion for
summary judgment, the circuit court raised sua sponte the
propriety of the submission of the Mahoe Declaration. The
court stated that it seemed to go beyond the scope of the
supplemental briefing, which the court believed "was
just for the purposes of the false accusation." Nozawa
explained that she was not able to obtain the Mahoe
Declaration when she initially filed her opposition and that,
in any event, the ...