Andrade v. Cnty. of Hawai‘i

• Decision Date: 30 September 2019
• Docket Number: NO. CAAP-15-0000941,CAAP-15-0000941
• Parties: John J. ANDRADE, IV, Plaintiff-Appellant, v. COUNTY OF HAWAI‘I, Defendant-Appellee, and Doe Persons 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-profit" Corporations 1-10; and Roe Governmental Entities 1-10
• Court: Hawaii Court of Appeals

451 P.3d 1

John J. ANDRADE, IV, Plaintiff-Appellant,

v. COUNTY OF HAWAI‘I, Defendant-Appellee,andDoe Persons 1-10; Doe Partnerships 1-10; Doe Corporations 1-10; Roe "Non-profit" Corporations 1-10; and Roe Governmental Entities 1-10

NO. CAAP-15-0000941

Intermediate Court of Appeals of Hawai‘i.

SEPTEMBER 30, 2019

On the briefs:

Ted H. S. Hong, Hilo, for Plaintiff-Appellant.

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

GINOZA, CHIEF JUDGE, FUJISE AND HIRAOKA, JJ.

OPINION OF THE COURT BY 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.

I.

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 judgment⁵ 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 pleadings⁶ 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).

II.

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 (E03 ) since November 13, 2006. He lives in Honoka‘a and is assigned to the Kealakehe baseyard. The commute⁹ 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 E03 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 E03 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 E03 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 E03 position. On July 20, 2012, that person was observed to be unable to competently operate an end-dumpster truck, which was a basic E03-level task.

On July 20, 2012, Andrade asked Almada why he had not been informed that the E03 position in Waimea had been filled; he was...