85 Hawai'i 7, Furukawa v. Honolulu Zoological Soc., 18735

• Decision Date: 09 April 1997
• Docket Number: No. 18735,18735
• Citation: 85 Hawaii 7,936 P.2d 643
• Parties: 85 Hawai'i 7, 70 Empl. Prac. Dec. P 44,679 George H. FURUKAWA, Plaintiff-Appellant/Cross-Appellee, v. HONOLULU ZOOLOGICAL SOCIETY, Defendant-Appellee/Cross- Appellant, and John Does 1 to 10, and Jane Does 1 to 10, Defendants.
• Court: Hawaii Supreme Court

Page 643

936 P.2d 643

85 Hawai'i 7, 70 Empl. Prac. Dec. P 44,679

George H. FURUKAWA, Plaintiff-Appellant/Cross-Appellee, v. HONOLULU ZOOLOGICAL SOCIETY, Defendant-Appellee/Cross- Appellant and John Does 1 to 10, and Jane Does 1 to 10, Defendants.

No. 18735.

Supreme Court of Hawai'i.

April 9, 1997.

Reconsideration Denied May 6, 1997.

Clayton C. Ikei and April Wilson-South, Honolulu, for plaintiff-appellant.

Lynne T. Toyofuku (Barbara A. Petrus with her on the briefs), Honolulu, for defendant-appellee.

Richard M. Rand, Honolulu, for amicus curiae Hawai'i Chamber of Commerce.

John Ishihara, Honolulu, for amicus curiae Hawai'i Civil Rights Commission.

Elizabeth Jubin Fujiwara, Honolulu, for amicus curiae National Employment Lawyers Association.

Before MOON, C.J., and KLEIN, LEVINSON, NAKAYAMA and RAMIL, JJ.

KLEIN, Justice.

In this employment discrimination lawsuit alleging violation of Hawai'i Revised Statutes (HRS) § 378-2(1) (Supp.1996) ¹ and HRS Chapter 368, Plaintiff-Appellant George Furukawa appeals the granting of Defendant-Appellant Honolulu Zoological Society's (Society) motion for a directed verdict. The Society cross-appeals the trial court's denial of its motion for attorneys' fees. Because we hold that the trial court erred in directing a verdict against Furukawa, we vacate the grant of the Society's motion for directed verdict and remand for proceedings consistent with this opinion. ²

I. BACKGROUND

The Society is a private, non-profit corporation which supports the Honolulu Zoo by raising funds and providing volunteer services. In November 1990, Furukawa submitted his resume to the Society for the position of administrative assistant to the executive director, then Dan Durbec. After first being told that another candidate had been selected, Furukawa took a job with a local law firm. But shortly thereafter the position was offered to Furukawa because the other candidate had not reported to work; Furukawa resigned from the firm and accepted the higher-paying position at the Society.

The Society is governed by a Board of Directors consisting of two dozen volunteers. The board is headed by a president. At the time Furukawa was hired by the Society, the president was Eric Ako, a male veterinary doctor of Asian descent. In July 1991, the presidency was assumed by Sue Pruett, a female Caucasian; after Pruett's premature resignation in December, the position of president of the board was filled by Linda Ross, also a female Caucasian.

Furukawa was employed as administrative assistant from December 1990 until January 1992. His responsibilities included maintaining the Society's membership files, handling membership donations, increasing membership, producing the Society newsletter, and assisting with fund raising and public relations. At the time of Furukawa's employment the Society had five regular employees: Executive Director Dan Durbec, a male Caucasian; "Zootique" Manager Jenny Kaulupali, a female Caucasian; Betsy Robertson, assistant manager of the Zootique, a female Caucasian; Furukawa, an Asian male; and Adoption Coordinator Susan Kroe, a female Caucasian. Durbec joined the Society in August 1990; Kroe had been hired in July 1990. Kaulupali had worked at the Society for a number of years. Durbec, Furukawa and Kroe shared the Society's offices; Kaulupali and Robertson worked in the Zootique. All of these employees were full-time, with the exception of Kroe, who worked twenty hours weekly on a flexible schedule--to accommodate both her physical rehabilitation following an accident (which preceded her employment at the Society), as well as her other work as a sign language interpreter.

Upon being hired, Furukawa received a copy of the Society's personnel policy manual. At the end of his three-month probationary "orientation" period, in March 1991, Furukawa was evaluated, pursuant to the manual's "Employee Evaluations, Goals and Salary Review" section. His supervisor, Executive Director Durbec, gave him a positive evaluation, rating Furukawa as "Very Good" overall. Furukawa testified that during this period he was not informed of any dissatisfaction with his job performance. On the contrary, in April 1991, the Society's board voted Furukawa a raise, from $18,000 to $21,500 annually. Furukawa also received a "Very Good" rating at his six-month performance review, in June.

In support of his claim of discrimination, Furukawa attempted to show that, although the policy manual provided for regular evaluation of employees by their immediate supervisor, the executive director was not allowed to perform such reviews of any Society employees except Furukawa. The Society in its brief admits that "Durbec inquired about evaluating the manager of the Zootique and was told by Dr. Ako, the President of the Society, that he would be permitted to evaluate her later." Evaluation of the two Zootique employees was performed by the personnel committee, without Durbec in attendance. Furthermore, after Durbec expressed concern regarding Kroe's hours to then-Board President Ako, Dr. Ako told him to treat Kroe with "kid gloves." Furukawa claims that this "disparate application of the Policy Manual's performance evaluation procedures resulted in the female/Caucasian employees of the Society not being subjected to the risk of a negative performance evaluation while Mr. Furukawa was regularly subjected to that risk."

Additionally, there was testimony to the effect that relationships among Pruett, Irvine, Kroe and Kaulupali, on the one hand, and Durbec and Furukawa, on the other were strained. Durbec and Furukawa each testified that Kroe was hostile towards them. During his first week of employment, Furukawa was told by one board member, Victoria Calvert, that "you're a brave man, George, I admire you for accepting this position, those women on the board are hard to please." Furukawa testified that board member Candy Irvine, another female Caucasian, who assisted with the production of the newsletter, once told him--"not verbatim"--that "I realize that because of your ethnic background and your culture and where you were raised you are taught to be polite and agreeable and that's inherent to the local Japanese culture, but I really think you should be more forceful in your deadlines." Furukawa testified that Pruett told him, on one occasion, that "I hope you are not intimidated by me, but ... I am the Society, therefore, you take directions from only me and not Mr. Durbec," a statement Pruett admitted to making.

As relationships deteriorated, at some point Kroe and Kaulupali began reporting on the two men's activities to Pruett--first verbally and then in writing. Pruett then communicated this information--including detailed factual accusations--along with her concerns and those of board member Irvine, to the personnel committee in preparation for Durbec's annual performance review. This documentation was unknown to Durbec or Furukawa until discovered amongst papers left by Pruett subsequent to her resignation as president.

In preparation for Durbec's review, the chair of the personnel committee requested that Durbec turn over his and Furukawa's personnel files. When Durbec asked if he should include the files of Kaulupali and Robertson, who were also due for a review, he was told that "the committee was looking at George [Furukawa] and me." Durbec's review took place over two days in late November 1991. Although Furukawa was himself due for an annual performance review in December 1991, the personnel committee's review of Durbec in fact focused largely on the absent Furukawa rather than on Durbec, resulting in Durbec's being instructed to "find a more competent, efficient assistant." This recommendation was based not on the formal performance reviews of Furukawa by Durbec, but on the comments on Furukawa's performance made by Pruett, Irvine, Kaulupali and Kroe. Durbec testified that, although he understood at the time that the board wanted him to begin termination proceedings against Furukawa, he declined to do so because he felt such action was not justified.

Cross-examining Furukawa's witnesses, the Society sought to show that concerns about Furukawa's job performance began to be expressed soon after he was hired; that he was uncommunicative, passive, and lacked initiative; that his April 1991 raise was meant as an "incentive" and was not based on merit; that he was slow in learning the office's computer software and accidentally deleted a number of files from the database; and that his work on the newsletter was deficient and "an embarrassment to the Society." In support of this allegation, there was testimony that Furukawa had misspelt a reference to "ruffed lemurs" in the newsletter, calling them "ruffled lemurs."

On learning of the personnel committee's action from Durbec, Furukawa filed a grievance with the Society. By letter of December 1, 1991, Board President Pruett scheduled a December 5 meeting to discuss the grievance; she later canceled the meeting on the advice of an attorney. Pruett resigned from the board on December 7, 1991. The Board's executive committee met without Furukawa to discuss the grievance on December 18. Furukawa was then informed that the Board wanted to meet with him and "to establish new performance goals." However, no such meeting took place. Feeling that the conditions of his employment had become "intolerable," Furukawa resigned from the Society on January 15, 1992.

On February 7, 1992, Furukawa filed a discrimination charge against the Society with the Hawai'i Civil Rights Commission (Commission), alleging that he had been discriminated against on the basis of his race and gender in that similarly-situated female Caucasian co-workers were not subjected to the same work standards as he was. On May 27, Furukawa requested and received a Notice of Dismissal and Right to Sue from the commission. On June 9, 1992, Furukawa filed this complaint in the First Circuit Court...