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Nozawa v. Operating Engineers Local Union No. 3

Supreme Court of Hawaii

April 24, 2018

ARLEY H. NOZAWA, Petitioner/Plaintiff-Appellant,
OPERATING ENGINEERS LOCAL UNION NO. 3, Respondent/Defendant-Appellee,


          Charles H. Brower and Michael Healy for petitioner.

          Ashley K. Ikeda and David A. Rosenfeld for respondent.



          POLLACK, J.

         This 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.

         We also 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.

         I. BACKGROUND

         Operating 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.

         On 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 Burns.

         In 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.

         A. Circuit Court

         On 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.[1] 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 Nozawa's complaint.

         On 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.[2] 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.

         In his 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.

         Mendes 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.

         Reding 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.[3]

         Based 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.

         In 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.

         Additionally, 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.

         Nozawa 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 3's motion.[4]

         Local 3 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 involving Conradt.

         Local 3 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.

         Additionally, 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."

         After the initial hearing on the motion for summary judgment, [5] 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."

         Local 3's supplemental reply, which included exhibits and a declaration from Mendes, [6] 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.

         Nozawa 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.

         In her 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.

         During 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 ...

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