French v. Hawaii Pizza Hut, Inc.

• Decision Date: 30 September 2004
• Docket Number: No. 23985.,23985.
• Parties: Bobbie L. FRENCH, Plaintiff-Appellant, v. HAWAII PIZZA HUT, INC., Defendant-Appellee.
• Court: Hawaii Supreme Court

99 P.3d 1046

105 Haw. 462

Bobbie L. FRENCH, Plaintiff-Appellant, v. HAWAII PIZZA HUT, INC., Defendant-Appellee.

No. 23985.

Supreme Court of Hawai`i.

September 30, 2004.

Reconsideration Denied November 5, 2004.

Kirk H. Cashmere, on the briefs, for plaintiff-appellant.

John L. Knorek and Karen R. Tashima (Torkildson, Katz, Fonseca, Jaffe, Moore & Hetherington), on the briefs, Honolulu, for defendant-appellee.

LEVINSON, ACOBA, and DUFFY, JJ.; with MOON, C.J., concurring separately and dissenting; and NAKAYAMA, J., dissenting. Opinion of the court by ACOBA, J.

We hold that the record in this case on the issue of whether a lifting restriction substantially restricts a major life activity for purposes of determining a disability pursuant to Hawai`i Revised Statutes (HRS) § 378-1 (1993) was inappropriate for summary judgment. Determination of this issue requires an individualized inquiry. Because, contrary to this precept the circuit court of the first circuit<sup>1</sup> (the court) granted summary judgment to Defendant-Appellee Hawaii Pizza Hut Inc. (Pizza Hut) with respect to the HRS § 378-2 (Supp.1998) disability discrimination claim of Plaintiff-Appellant Bobbie L. French (Appellant), we vacate that aspect of the November 29, 2000 judgment and remand that part of the case to the court. However, we further hold that Appellant failed to make a prima facie showing of age discrimination on her theories of "pattern or practice" and/or "disparate treatment" by Pizza Hut, and thus the court was right in granting summary judgment as to this claim. Additionally, we hold that the court was correct in granting summary judgment as to Appellant's gender discrimination claim because her administrative complaint submitted to the Hawai`i Civil Rights Commission (the HCRC) did not specify such discrimination, and such a claim was not consistent with Appellant's original theory of the case as submitted to the HCRC. Finally, we conclude the court erred in denying portions of Appellant's Motion to Compel Discovery.

I.

In June 1994, Appellant was hired by Pizza Hut as an assistant restaurant manager and was promoted to restaurant manager in August 1994. In February 1995, Appellant was transferred to the Kaimuk Pizza Hut restaurant. In April 1995, Appellant notified her supervisor that she would undergo bladder surgery and a vaginal hysterectomy. Appellant informed Pizza Hut that she would have certain work restrictions when she returned. Pizza Hut recommended that Appellant be transferred to the Stadium Mall Pizza Hut restaurant to accommodate her condition because that location purportedly had a substantially lower sales volume and less staff than the Kaimuk restaurant.

Appellant's medical leave commenced May 9, 1995, and she underwent surgery on May 19, 1995. Appellant returned to work on August 19, 1995, on medical orders not to lift over twenty pounds and not to work more than eight hours a day. Before returning to work, Appellant requested assignment to the Kaimuk restaurant, but this was denied and she transferred to the Stadium Mall location.

The Stadium Mall restaurant was allegedly chronically understaffed. Appellant confronted her supervisor regarding the inability to comply with her work restrictions due to understaffing. Despite these concerns, Appellant's supervisor instructed her to decrease the employee hours to keep labor costs at a minimum. Because other employees were unavailable to assist her, Appellant was occasionally required to work fourteen or fifteen hours a day and was frequently required to lift more than twenty-five pounds. Appellant claimed that she experienced pain lifting in excess of twenty pounds.

On September 27, 1995, Appellant met with the Director of Operations, Randall Omoto, to inform him of the effects of her health and inquire about a raise in her salary. Omoto recommended that Appellant demote herself or quit employment. Approximately one week later, Appellant's physician renewed her restriction against working more than eight hours a day and increased the lifting restriction to twenty-five pounds. On December 6, 1995, Appellant met a second time with Omoto regarding her health problems. After the meeting, Appellant informed Omoto that she would immediately take vacation leave for two weeks. On December 18, 1995, Pizza Hut terminated Appellant for taking a vacation without authorization and adequate notice.

On March 19, 1996, Appellant filed a "Charge of Discrimination" against Pizza Hut with the HCRC for disability and age discrimination. On March 13, 1998, the HCRC issued a right-to-sue letter based on a finding of no cause. Appellant filed her complaint with the court on June 15, 1998. She alleged two claims for relief: (1) discrimination based on disability or perceived disability because of Pizza Hut's failure to reasonably accommodate her disability or perceived disability; and (2) discrimination in compensation based on age, gender, race and/or national origin.

On March 23, 2000, Appellant served her First Request For Production of Documents to Pizza Hut. Pizza Hut refused, inter alia, to produce (1) documents relating to (a) employee medical leaves, (b) employee transfers, (c) sales volume, and (d) Stadium Mall shift schedules; (2) Stadium Mall Pizza Hut personnel files; and (3) termination or resignation records of Stadium Mall employees. On August 22, 2000, Appellant filed a motion to compel discovery as to her request. On September 13, 2000, the court denied the motion in part.

On August 28, 2000, Pizza Hut filed its motion for summary judgment which was granted on October 10, 2000. Judgment was entered on November 29, 2000 in favor of Pizza Hut on all claims on the grounds that: (1) Appellant's impairment did not constitute a disability within the meaning of HRS § 378-2; (2) Appellant failed to establish a prima facie showing of age discrimination to establish a violation of HRS § 378-2; and (3) Appellant was precluded from bringing a claim of gender discrimination under HRS § 378-2 because she had neglected to raise the claim with the HCRC.²

II.

On December 29, 2000, Appellant appealed from the judgment to this court. An award of summary judgment is reviewed de novo under the same standard applied by the circuit court. Amfac, Inc. v. Waikiki Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22, reconsideration denied, 74 Haw. 650, 843 P.2d 144 (1992); see also Bitney v. Honolulu Police Dep't, 96 Hawai`i 243, 250, 30 P.3d 257, 264 (2001); Shoppe v. Gucci Am., Inc., 94 Hawai`i 368, 376, 14 P.3d 1049, 1057 (2000). Summary judgment "is appropriate where there is no genuine issue as to the material fact and the moving party is entitled to judgment as a matter of law." Ross v. Stouffer Hotel Co., 76 Hawai`i 454, 457, 879 P.2d 1037, 1040 (1994). All evidence and inferences must be viewed in the light most favorable to the non-moving party. Maguire v. Hilton Hotels Corp., 79 Hawai`i 110, 112, 899 P.2d 393, 395 (1995).

III.

As to her claim of disability discrimination, Appellant maintains that the court erred (1) in concluding that Appellant's limitation on lifting over twenty-five pounds did not constitute an impairment under HRS § 378-2, (2) in deciding that a twenty-five-pound lifting restriction does not constitute a substantial limitation of a major life activity, (3) in not ruling on Appellant's claim that she was regarded by Pizza Hut as having a disability,³ and (4) in failing to reach the issue of whether Appellant's transfer to the Stadium Mall restaurant constituted a reasonable accommodation of her disability.

As to her claims of compensation discrimination based on age, gender, race and national origin, Appellant contends that the court erred in concluding that: (1) Appellant failed to exhaust her administrative remedies regarding her claims of gender, race, and national origin discrimination because they were not raised in her "Charge of Discrimination" filed with the HCRC, (2) evidence submitted by Appellant was not sufficient to establish a prima facie showing of disparate treatment based on age, (3) Appellant improperly grouped together fifteen managers as one class to establish disparate treatment,⁴ and (4) Appellant did not meet her burden of properly authenticating certain documents appended to her motion in support of her age discrimination claim.⁵

As to Appellant's motion to compel discovery, Appellant maintains that the court erred: (1) in limiting production of documents relating to employee medical leaves, employee transfers, sales volume, and Stadium Mall shift schedules and (2) in denying production of documents regarding the personnel files of all Stadium Mall employees from July through December 1995 and (3) documents related to the termination or resignation of Stadium Mall employees between July 1995 and July 1996, on the ground that there were less invasive means of discovery.

IV.

As to points (1) and (2) of Appellant's disability claim, we consider whether a twenty-five-pound lifting restriction is a disability within the meaning of HRS § 378-2. HRS 378-2 makes it an unlawful discriminatory practice "for any employer to refuse to hire or employ or to bar or discharge from employment, or otherwise to discriminate against any individual in compensation or in the terms, conditions, or privileges of employment" because of a person's race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record. HRS § 378-2(1)(A). In line with HRS § 378-2, HAR § 12-46-181 (1995) prohibits an employer from discriminating against an employee because of his or her disabilities.

The Hawai`i statutes and HAR prohibiting discrimination based on disability are textually similar to the Americans With Disabilities Act of 1990(ADA), 42 U.S.C. § 12101. Because of the similarities between the ADA and our own HRS chapter 378, we adopt the analysis for establishing a prima facie case of disability discrimination...