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Andrade v. County of Hawai'i

Intermediate Court of Appeals of Hawaii

September 30, 2019

JOHN J. ANDRADE, IV, Plaintiff-Appellant,


          On the briefs: Ted H. S. Hong, for Plaintiff-Appellant.

          Lerisa L. Heroldt, Lauren L. Martin, for Defendant-Appellee.



          HIRAOKA, J.

         Plaintiff-Appellant John J. Andrade, IV (Andrade) appeals from the Final Judgment (Judgment) in favor of Defendant-Appellee County of Hawai'i (County) entered by the Circuit Court of the Third Circuit (Circuit Court)[1] on November 19, 2015. The Circuit Court granted the County's motion to dismiss Andrade's complaint. Andrade contends that the Circuit Court erred by ruling that: (1) his rights under the County's rules for internal complaint procedures were not liberty or property interests under article I, section 5 of the Hawai'i Constitution; (2) his whistleblower claim was time-barred; (3) he failed to exhaust his administrative remedies by not pursuing his claim for retaliation with the Hawai'i Civil Rights Commission (HCRC); (4) his negligence claims were barred by the exclusive remedy provisions of the Hawai'i Workers' Compensation Law; and (5) he had no claim for wilful and wanton conduct. For the reasons explained below, we vacate the Judgment as to Counts I and II of the complaint, affirm the Judgment as to Counts III, IV, V, VI, and VII of the complaint, and remand for further proceedings consistent with this opinion.


         Andrade is a County employee. He sued the County for relief related to his employment. The County moved to dismiss the complaint pursuant to Hawai'i Rules of Civil Procedure (HRCP) Rule 12(b) (6) (eff. 2000).[2] Andrade's memorandum in opposition included a nineteen-page declaration signed by Andrade, but did not include a cross-motion for summary judgment. The County did not object to Andrade's declaration or to the testimony it proffered. The County did not submit declarations or any other evidence with its reply memorandum. The transcript of the hearing on the County's motion does not show that the Circuit Court excluded any of Andrade's evidence. The order granting the County's motion does not state that matters outside the pleadings were excluded.[3] Under such circumstances HRCP Rule 12(b) provides, in relevant part:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.

Accordingly, we apply the standard of review applicable to a motion for summary judgment under HRCP Rule 56 (eff. 2000) .

         The grant or denial of summary judgment is reviewed de novo. Ralston v. Yim, 129 Hawai'i 46, 55, 292 P.3d 1276, 1285 (2013).

Summary judgment is appropriate if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. A fact is material if proof of that fact would have the effect of establishing or refuting one of the essential elements of a cause of action or defense asserted by the parties. The evidence must be viewed in the light most favorable to the non-moving party. In other words, we must view all of the evidence and inferences drawn therefrom in the light most favorable to the party opposing the motion.

Id. at 55-56, 292 P.3d at 1285-86 (cleaned up).[4] Ordinarily on a motion for summary judgment the moving party has the burden of either (1) presenting evidence negating an element of the non- moving party's claim or affirmative defense, or (2) demonstrating that the non-moving party will be unable to carry its burden of proof at trial. Where the movant attempts to meet its burden through the latter means, the movant must show not only that the non-moving party has not placed proof in the record, but also that the non-moving party will be unable to offer proof at trial; generally, if discovery has not concluded, a summary judgment movant cannot point to the non-moving party's lack of evidence to support its initial burden of production. Ralston, 129 Hawai'i at 60-61, 292 P.3d at 1290-91.

         In this case, however, the County did not move for summary judgment[5] and its motion to dismiss required only that the Circuit Court view the facts alleged in the complaint (and the inferences to be drawn therefrom) in the light most favorable to Andrade. Bank of Am., N.A. v. Reyes-Toledo, 143 Hawai'i 249, 257, 428 P.3d 761, 769 (2018). The parties have not cited, nor have we found, any Hawai'i appellate decision describing the parties' respective burdens when a defendant files an HRCP Rule 12(b)(6) motion to dismiss and the plaintiff converts the motion into one for summary judgment by introducing matters outside the pleadings[6] that are not excluded by the trial court.

         In such a situation the moving defendant could argue that (a) the plaintiff's evidence is inadmissible, (b) even if the plaintiff's evidence were admissible, the facts established are not material and the defendant is still entitled to judgment as a matter of law, and/or (c) even if the plaintiff's evidence were admissible and material, the facts are controverted (by a declaration or other evidence submitted with the defendant's reply memorandum). Pursuing option (c) would, of course, result in a denial of the defendant's own motion on the grounds that there were genuine issues of material fact. Accordingly, we hold that when a plaintiff converts a defendant's HRCP Rule 12(b)(6) motion into a HRCP Rule 56 motion for summary judgment by presenting matters outside the pleadings that are not excluded by the trial court, without filing a cross-motion for summary judgment, [7] the court should view the facts presented in the pleadings and the evidence submitted by the plaintiff (and the inferences to be drawn therefrom) in the light most favorable to the plaintiff. Ralston, 129 Hawai'i at 56, 292 P.3d at 1286. If the court concludes (based on the factual allegations in the complaint and the plaintiff's proffered evidence) that the defendant is entitled to judgment as a matter of law, the court should grant summary judgment in favor of the defendant; if not, the court should deny the defendant's motion;[8] where the plaintiff does not file a cross-motion for summary judgment, the defendant's failure to controvert the plaintiff's evidence (offered in opposition to the motion to dismiss) does not constitute a concession or admission as in Smith v. New England Mut. Life Ins. Co., 72 Haw. 531, 541, 827 P.2d 635, 640 (1992) (noting that a party cannot "condition an admission of fact only for purpose of its motion for summary judgment") (citation omitted).


         Andrade's complaint and uncontroverted declaration made the following allegations which, for purposes of this appeal only, we deem to be true:

         Andrade has been employed by the County's Department of Environmental Management (Department) as an Equipment Operator III (EO3) since November 13, 2006. He lives in Honoka'a and is assigned to the Kealakehe baseyard. The commute[9] is a hardship to him due to the cost, time, and not being able to assist in the care of his children. On July 29, 2007, he requested a transfer to the Waimea baseyard, which is closer to Honoka'a. The Department did not respond to his request.

         On November 9, 2009, Andrade applied for an EO3 Sewer Maintenance Repairer position. On December 30, 2009, he was informed by the Department's human resources program specialist Margaret Almada (Almada) that he had not been selected for the position. On December 13, 2010, he was informed by Almada that he had also not been selected for any of the EO3 vacancies in Hilo, Kona, or Pu'uanahulu. On May 12, 2011, he wrote to the Department expressing the hardship he and his family were experiencing because he was not able to transfer to the Waimea baseyard. On May 24, 2011, he was informed that the Department rejected his transfer request based on personal hardship. He was instructed to apply for a transfer only during periods of recruitment for a vacant position.

         On December 6, 2011, Andrade sent the Department another letter expressing interest in a lateral transfer to the Waimea baseyard due to personal hardship; on December 16, 2011, Almada instructed him to apply when recruitment to fill the EO3 position in Waimea was announced. The vacancy was announced on March 7, 2012. Andrade submitted a timely application. On April 2, 2012, Almada informed Andrade that candidates for the position would be interviewed and the top three candidates would have to take a driving test. On April 23, 2012, Andrade was notified that his driving test would be conducted on May 9, 2012, at the Pu'uanahulu Landfill and on May 10, 2012, at the Waimea baseyard. The notice stated, "Once we have tabulated your interview and driving test scores we will begin to perform the background check on the top candidate." On May 15, 2012, Andrade was required to take a third driving test, even though Almada was unaware of it and questioned why it was necessary.

         On June 18, 2012, Andrade was attending a safety meeting in Hilo when he learned that another person had been selected for the Waimea baseyard EO3 position. On July 20, 2012, that person was observed to be unable to competently operate an end-dumpster truck, which was a basic EO3-level task.

         On July 20, 2012, Andrade asked Almada why he had not been informed that the EO3 position in Waimea had been filled; he was concerned that the time for him to file an internal complaint may have expired. Almada was not able to give him a satisfactory response but on July 24, 2012, Andrade received written notice that he had not been selected to fill the Waimea baseyard EO3 position.

         On August 1, 2012, Andrade asked Almada for information on the recruitment process for the Waimea baseyard EO3 position. Almada refused to provide any information. Andrade then asked to meet with division chief Greg Goodale (Goodale) to discuss the situation. He made an appointment for August 2, 2012, but was kept waiting for over an hour and had to leave to pick up his children. When he tried to reschedule the meeting, he was told that Goodale would not meet with him. He tried again, several times, but his calls were not returned. On August 27, 2012, he asked Almada for copies of his interview and performance test scores. Almada denied the request. On August 29, 2012, he was told by a United Public Workers (UPW) business agent that matters involving recruitment were not subject to the collective bargaining agreement between UPW and the County.[10] That same day, he reviewed his personnel file and saw that his annual job performance reviews, his May 12, 2011 hardship letter, the notification that he was not selected for the Waimea baseyard EO3 position, and the scores from his three driving performance tests were missing from the file.

         The Department had adopted a formal, written policy concerning internal complaints (Internal Complaint Policy) to "provide a means for employees . . . to . . . rectify problems relating to the violation, misinterpretation or misapplication of certain personnel laws, regulations, rules or policies, while being assured freedom from coercion, discrimination, or reprisal." On August 30, 2012, Andrade submitted an internal complaint form and letter detailing how the Department had failed to follow its own policies and guidelines for recruitment for the Waimea baseyard EO3 vacancy. He wanted to ask about test scores, qualifications, and final decision making for the March 7, 2012 EO3 job posting. On October 16, 2012, he met with his supervisors and a UPW shop steward as part of the internal complaint process. One of the supervisors acknowledged that he had been aware of Andrade's August 2012 request for a meeting, but intentionally did nothing about it. Andrade informed the supervisors that they had violated the Internal Complaint Policy. He then left the office.

         On October 19, 2012, Andrade again requested a copy of his personnel file. On October 31, 2012, he received a portion of his file. On that day the Department also rejected his internal complaint on the grounds that the recruitment process involved the collective bargaining grievance procedure.

         Andrade wanted to appeal to the merit appeals board, but the Department would not accept his appeal form. He was told that he could only file an appeal with the merit appeals board if he received a letter from UPW stating that the recruitment process did not fall within the collective bargaining agreement grievance process. A UPW business agent later informed Andrade that no such letter was needed to file an appeal with the merit appeals board.

         On September 17, 2012 (while his internal complaint was pending), Andrade was notified that he was the subject of an internal investigation for a confrontation with a co-worker on July 30, 2012, at the Ke'ei Transfer Station. He was later absolved of any wrongdoing.

         On February 11, 2013, Andrade submitted another hardship letter asking to be considered for a transfer to the Waimea baseyard, and another internal complaint form alleging that he had been subject to unlawful discrimination and harassment by his supervisor because of his age. On February 21, 2013, Andrade received a memorandum from Almada rejecting his age discrimination complaint because he had failed to detail how he was disparately treated based on age. Almada sent another letter on March 12, 2013, repeating the rejection of his internal complaint. No mention was made of any appeal process.

         On February 7, 2013, Andrade was informed by his supervisor James Vasconcellos (Vasconcellos) that he was being investigated for a December 8, 2012 incident involving "unsafe work conditions." On February 14, 2013, Andrade submitted an internal complaint form, claiming to have been the victim of a false report concerning the December 8, 2012 incident. Vasconcellos rejected the internal complaint as untimely, and ordered Andrade to attend an investigative interview about the December 8, 2012 incident. On March 4, 2013, Andrade sent a letter to Vasconcellos explaining why he felt his internal complaint was timely. On March 8, 2013, Vasconcellos again rejected the February 14 internal complaint as untimely and again demanded that Andrade appear for an interview about the incident involving unsafe work conditions. Andrade attended the investigative interview on April 2, 2013. On April 8, 2013, Andrade submitted another internal complaint, alleging that instead of investigating the alleged incident, Vasconcellos cursed at him and called him names. On April 16, 2013, Goodale ordered Vasconcellos to appear for an investigative interview. Andrade has never been informed of the disposition of his April 8, 2013 internal complaint.

         On July 24, 2013, Andrade was informed by Vasconcellos that he was the subject of possible disciplinary action relating to a scrap metal delivery on July 20, 2013. On August 6, 2013, Vasconcellos told Andrade that he (Andrade) would no longer be eligible to serve in temporary supervisory positions. On August 9, 2013, Vasconcellos ordered Andrade to appear for a disciplinary investigative interview. On August 13, 2013, Andrade contacted the Department's director (Director), told her he was being harassed and retaliated against by his supervisor, and asked to meet to discuss his concerns. On August 14, 2013, Andrade was suspended without pay and prohibited from being at any County work sites. His suspension letter cited three incidents: the July 20, 2013 scrap metal delivery; his alleged discrimination and harassment of a co-worker, creating a hostile work environment; and his walking off the job on August 10, 2013.

         On August 26, 2013, Andrade was ordered by Almada to appear for an interview on September 3, 2013, after which he could return to work. On September 5, 2013, he returned to work and his eligibility for temporary supervisory positions was reinstated. He asked Vasconcellos for documentation but Vasconcellos refused, stating that according to Almada no written notice was necessary.

         On November 6, 2013, he was notified by Vasconcellos that the scrap metal delivery incident had become a case of failing to follow instructions; that the discrimination and harassment complaint against him had become a sexual harassment/ discrimination complaint, but was being dismissed for lack of evidence; and that the charge of walking off the job was changed to leaving a work assignment and was also being dismissed for lack of evidence. On November 20, 2013, Andrade received written notice from Almada that the investigation had been concluded, he would receive back pay for the period of time he had been suspended, he could resume his full duties, and he would resume being entitled to temporary supervisory assignments.

         On November 7, 2013, Andrade was informed that he was being investigated for sick leave abuse. The disposition of the investigation was not mentioned either in Andrade's Complaint for Declaratory Relief or in Andrade's declaration.

         On December 19, 2013, Andrade learned that a co-worker had been transferred to the Waimea baseyard without a vacancy having been posted. He also discovered that another recruitment for island wide positions had been available, but had not been posted and had closed two days earlier.

         Vasconcellos continued to harass Andrade in the workplace on a daily basis by using harsh words, cursing, giving him the least desirable assignments, and refusing to allow him to transfer to the Waimea baseyard.

         On October 23, 2014, Andrade met with temporary supervisor Dennis Gibo (Gibo). During that meeting, Gibo made sexually explicit, unwanted, and inappropriate statements. Andrade submitted a discrimination and harassment complaint form about the incident, and a letter to the Director describing the incident. Neither the ...

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