Bitney v. Honolulu Police Dept., 22981.

• Decision Date: 23 August 2001
• Docket Number: No. 22981.,22981.
• Citation: 96 Haw. 243,30 P.3d 257
• Parties: Estella Murphrey BITNEY, Plaintiff-Appellant, v. HONOLULU POLICE DEPARTMENT, Michael S. Nakamura, individually and in his official capacity as Chief of Police, Robert Prasser, in his capacity as Major, Honolulu Police Department, Marc Greenwell, in his capacity as Captain, Honolulu Police Department, Sam Keliinoi, individually and in his official capacity as Lieutenant, Honolulu Police Department, Barbara Wong, in her capacity as Major, Honolulu Police Department, Joseph Ledbetter, individually and in his capacity as Lieutenant, Honolulu Police Department, City and County of Honolulu, State of Hawaii, Defendants-Appellees, and Monamae N. Kanamu, individually and in her capacity as Supervising Dispatcher, Honolulu Police Department, Betty Sakoda, individually and in her capacity as Supervising Police Dispatcher, Defendants.
• Court: Hawaii Supreme Court

30 P.3d 257

96 Haw. 243

Estella Murphrey BITNEY, Plaintiff-Appellant, v. HONOLULU POLICE DEPARTMENT, Michael S. Nakamura, individually and in his official capacity as Chief of Police, Robert Prasser, in his capacity as Major, Honolulu Police Department, Marc Greenwell, in his capacity as Captain, Honolulu Police Department, Sam Keliinoi, individually and in his official capacity as Lieutenant, Honolulu Police Department, Barbara Wong, in her capacity as Major, Honolulu Police Department, Joseph Ledbetter, individually and in his capacity as Lieutenant, Honolulu Police Department, City and County of Honolulu, State of Hawaii, Defendants-Appellees, and Monamae N. Kanamu, individually and in her capacity as Supervising Dispatcher, Honolulu Police Department, Betty Sakoda, individually and in her capacity as Supervising Police Dispatcher, Defendants.

No. 22981.

Supreme Court of Hawai`i.

August 23, 2001.

William Tagupa, Honolulu, for the plaintiff-appellant Estella Murphrey Bitney, on the briefs.

James C. Butt and Reid M. Yamashiro (Deputy Corporation Counsel, City and County of Honolulu) for the defendants-appellees Honolulu Police Department, Michael S. Nakamura, Robert Prasser, Marc Greenwell, Sam Keliinoi, Barbara Wong, Joseph Ledbetter, City and County of Honolulu, State of Hawai`i, on the briefs.

MOON, C.J., and LEVINSON, NAKAYAMA, RAMIL, and ACOBA, JJ.

Opinion of the Court by LEVINSON, J.

The plaintiff-appellant Estella Murphrey Bitney appeals from the judgment of the first circuit court, the Honorable Virginia Lea Crandall presiding, filed on December 22, 1999, pursuant to the summary judgment order of the first circuit court, the Honorable Bode A. Uale presiding, filed on October 15, 1999, in favor of the defendants-appellees Honolulu Police Department, Michael S. Nakamura, individually and in his official capacity as Chief of Police, Robert Prasser, in his capacity as Major, Honolulu Police Department, Marc Greenwell, in his capacity as Captain, Honolulu Police Department, Sam Keliinoi, individually and in his official capacity as Lieutenant, Honolulu Police Department, Barbara Wong, in her capacity as Major, Honolulu Police Department, Joseph Ledbetter, individually and in his capacity as Lieutenant, Honolulu Police Department, City and County of Honolulu, and the State of Hawai`i ("collectively, HPD") and against Bitney. Bitney argues (1) that the circuit court erred in concluding that she was not a disabled person within the meaning of the Americans with Disabilities Act, 42 U.S.C. §§ 12101 through 12213¹ (ADA) and (2) that a genuine issue of material fact as to whether the HPD took appropriate steps to provide her with a reasonable accommodation with respect to her alleged disability, as required by the ADA, precluded summary judgment. We hold that Bitney failed to meet her burden of producing evidence of sufficient probative value as to give rise to a genuine issue of material fact regarding whether her dyslexia substantially restricted her ability in any major life activity. Because she relied on 42 U.S.C. § 12102(2)(A) to establish that she was disabled within the meaning of the ADA, proof that her impairment substantially limited her in a major life activity was an essential element of a prima facie case of employment discrimination based on disability under the ADA. Accordingly, the circuit court did not err in granting the defendants-appellees' motion for summary judgment with respect to Bitney's ADA claim on the ground that she was not a disabled individual within the meaning of the Act. Inasmuch as Bitney did not have a disability within the meaning of the ADA, her claims arising under the ADA were not viable and her second point of error is moot. Accordingly, we affirm the circuit court's judgment.

I. BACKGROUND

Both parties rely almost verbatim on the circuit court's findings of fact (FOFs) with respect to the background of the present matter. These FOFs were as follows:

1. [O]n April 16, 1992, [Bitney] was hired for the position of police radio dispatcher ("PRD") at the Honolulu Police Department ("HPD").

2. At the time of her hiring, [Bitney] was 31-years old and had been living in Hawai`i since 1989.

3. [Bitney's] qualifications for the position included living independently since high school, maintaining continuous employment of various occupations and skills (spanning 1978 through 1992), receiving a high school diploma and attending several years of college and having special skills at first aid, sign language, and music. In [Bitney's] application for the position with the HPD, she declared that she was physically and mentally fit for the position. She further declared that she was not aware of any reason that would prevent her from fully performing the duties of a PRD.

4. Prior to working for [the] HPD, [Bitney's] high school transcripts showed she made average to above average grades in college and particularly excelled in music.

5. Prior to working for [the] HPD, [Bitney's] employment history demonstrated that she has successfully progressed in job responsibilities and pay. With the increase in responsibility and pay came improvement in skills, training, and experience. At 24-years old, in 1985, she applied at Associated Grocers. She was hired as a clerk and made $6 an hour. She could type, do shorthand and basic calculations using machines. At age 27, in 1987, she applied and was hired by Nordstroms to work on accounts receivable. She became a salaried worker. At Nordstroms, [Bitney] successfully passed various writing, spelling, grammar, accounting, and clerical skills tests. Notably, in a performance review, her evaluator had high praise for her improvement and learning capacity. At age 29 in 1989, she moved to Hawai`i by herself and worked at JN Chevrolet as a car salesman. In her resume, she listed areas of experience and special awards. She fared quite well in a personnel/competency test. At age 30, she worked at Sheraton Princess Kaiulani as a PBX operator. She made over $9 an hour. By this time, she could do anything and everything asked by her employer. She checked off every box in listing her skills/abilities. She left Sheraton with an evaluation of average to above average marks.

6. Prior to working for [the] HPD, [Bitney's] past residences showed [that] she has traveled and lived in various states independently. She has resided in the states of Oregon, Washington, and Oklahoma, as well as Hawai`i.

7. In her attempt to become a PRD, [Bitney] had trouble [completing her training and] qualifying for the position of [a] PRD because she was inaccurate when receiving and transmitting information from callers, misspelling and mispronouncing Hawaiian words, and indecisiveness. [Bitney's] inaccuracies increased when the number of calls increased.

8. Beyond her probationary period of one year and during training, it was discovered that she [might] be dyslexic.²

HPD had her tested with the Department's Psychologist, Dr. Eva Stamper, as well as with Assets School. Both Dr. Stamper and Assets School reported that [Bitney] was mildly dyslexic, if at all, and within the context of good general intellectual functioning and with many well-developed compensatory techniques. Dr. Stamper offered suggestions to help [Bitney] qualify [for the position of a PRD] but stated that any final decision can only be based on [Bitney's] actual record and her teachers' and supervisors' observations.

9. Due to [Bitney's] continued determination to qualify and the fact that she could practically do everything required to qualify, [the] HPD implemented some of Dr. Stamper's suggestions to assist [Bitney].³ [Bitney], however, still made critical errors in receiving and transmitting information while on the radio, which could jeopardize the safety of the public and the police officers.

10. [O]n August 15, 1994, [Bitney] resigned. [The] HPD did not terminate [Bitney].

On August 12, 1996, Bitney filed a complaint in the first circuit court, which was amended on March 17, 1997 to allege (1) a violation of the ADA, (2) constructive discharge in violation of public policy, (3) a violation of Bitney's right to freedom of speech, (4) deprivation of a property interest in violation of Bitney's due process rights, (5) conspiration to injure Bitney, (6) aiding and abetting in wrongful acts against Bitney, (7) negligence, (8) wrongful interference with economic relationship, (9) invasion of privacy, (10) negligent infliction of emotional distress, and (11) intentional infliction of emotional distress. On July 19, 1999, the HPD filed a motion for summary judgment on all counts of Bitney's complaint. With respect to Bitney's ADA claim, the HPD argued that the evidence did not support Bitney's claim that she suffered from dyslexia to a degree that substantially limited her in the major life activities of reading and writing, and, therefore, that she failed to establish a prima facie case of an ADA violation.

In opposition to the HPD's motion, Bitney argued that there were genuine issues of material fact as to whether she was dyslexic at all and, if she were dyslexic, whether and how her dyslexia impaired her and whether the HPD had accommodated her disability in accordance with the requirements of the ADA. In support of her memorandum in opposition, Bitney filed a declaration, in which she averred, inter alia, that: (1) she had received satisfactory performance evaluations during her probationary period of employment with the HPD, but that her supervisor, Monamae N. Kanamu, had stated that, "because [she] was a "haole", Kanamu would make sure that she [would] not pass training to become a [PRD and] informed her that [she] would never understand the local people or the Hawaiian way"; (2) on March 23, 1993, her status had changed from probationary to permanent; (3) in July 1993, her trainer "noted that [she] had problems with displacing of letters and numbers, as well as punctuation problems with Hawaiian...