Gomes v. Cnty. of Hawai'i

• Docket Number: CAAP-20-0000561
• Decision Date: 29 August 2024
• Parties: ROBERT G. GOMES, JR., Plaintiff-Appellant, v. COUNTY OF HAWAI'I, DEPARTMENT OF PUBLIC WORKS, HIGHWAYS DIVISION, Defendant-Appellee, and DOE PERSONS 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, ROE "NONPROFIT" CORPORATIONS 1-10, ROE GOVERNMENTAL ENTITIES 1-10, Defendants
• Court: Hawaii Court of Appeals

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ROBERT G. GOMES, JR., Plaintiff-Appellant, v. COUNTY OF HAWAI'I, DEPARTMENT OF PUBLIC WORKS, HIGHWAYS DIVISION, Defendant-Appellee, and DOE PERSONS 1-10, DOE PARTNERSHIPS 1-10, DOE CORPORATIONS 1-10, ROE "NONPROFIT" CORPORATIONS 1-10, ROE GOVERNMENTAL ENTITIES 1-10, Defendants

No. CAAP-20-0000561

Intermediate Court of Appeals of Hawaii

August 29, 2024

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT(CIVILNO 3CC171000213)

Ted H.S. Hong for Plaintiff-Appellant.

Dakota K. Frenz Deputy CorporationCounsel for Defendant-Appellee.

(By Leonard, Acting Chief Judge, Wadsworth and Nakasone, JJ.)

SUMMARY DISPOSITION ORDER

This appeal concerns whether summary judgment was properly granted on Plaintiff-AppellantRobert G. Gomes, Jr.'s (Gomes) disability discrimination claim under Hawaii Revised Statutes (HRS) § 378-2.^[1] Because there were genuine issues of material fact regarding whether Gomes was qualified to perform the essential functions of his position with or without reasonable accommodation, we conclude summary judgment was erroneously granted on that basis.

Gomes appeals from the September 8, 2020"Findings of Fact, Conclusions of Law [(FOFs/COLs)], and Decision and Order Granting Defendant County of Hawai'i, Department of Public Works, Highways Division's Motion for Summary Judgment Filed Herein on July 10, 2020"(Order Granting MSJ) and from the September 8, 2020"Final Judgment," both filed and entered by the Circuit Court of the Third Circuit (Circuit Court).^[2]

On appeal, Gomes raises two points of error,^[3]contending that the Circuit Court erred in (1) granting summary judgment despite the existence of genuine issues of material fact on whether Gomes "was qualified to perform the essential duties of his . . . job with or without reasonable accommodation";^[4] and (2) awarding costs against him without a hearing.

Upon careful review of the record and the briefs submitted by the parties and having given due consideration to the arguments advanced and the issues raised, we resolve Gomes's points of error as follows, and vacate and remand.

On July 3, 2017, Gomes filed a Complaint of disability discrimination against Defendant-Appellee County of Hawai'i, Department of Public Works, Highways Division(County), alleging that: despite a pre-existing disability (diabetes), he had capably performed the essential functions of his position as Street Cleaning Supervisor (Supervisor) for over eight years; his diabetes never interfered with his duties; and the County retaliated against him--for his criminal complaint against a co-worker--by amending his position's job specifications such that he would no longer be qualified due to his disability.

The record of the summary judgment hearing reflects that Gomes was an insulin-dependent diabetic since at least 1995.Under state and federal law, a medical examiner's certificate (MEC) is required to operate equipment and vehicles with a gross vehicle weight rating (GVWR) of over 10,000 pounds, but insulin-dependent diabetics are prohibited from obtaining an MEC.^[5] Because of Gomes's diabetes, he never obtained an MEC.

Gomes was initially hired by the County as a temporary Laborer II in 1998, and had disclosed to the County that he was an insulin-dependent diabetic prior to his hiring.On May 1, 2008, the County promoted Gomes to Supervisor.According to the County's January 3, 2008 Supervisor specifications document (2008 Specifications), the Supervisor position was "distinguished by its responsibility to supervise and participate in the work activities of the street cleaning crew, which includes the street sweeper operators, equipment operators, and laborers"; and the position's minimum qualification requirements included at least one year of experience operating a "motorized equipment comparable to that of the class."

After his promotion to Supervisor in 2008, Gomes mainly used a 1999 pick-up truck with a GVWR less than or equal to 10,000 pounds, although on at least ten occasions during 2014 to 2015, Gomes used a heavier pick-up truck (over 10,000 pounds) when his usual truck was under repair.Since 2006, the County's street cleaning crews used a Model 151 Tennant Sentinel Street Sweeper (Street Sweeper) with a GVWR of 20,000 pounds.Gomes generally did not use the Street Sweeper, but admitted to operating it "on more than one occasion."

On June 4, 2015, Gomes accidentally damaged a co-worker's van while moving the Street Sweeper^[6] in the County's baseyard.One week later, Gomes had an altercation with the co-worker regarding the co-worker's demand for repair costs.On June 23, 2015, Gomes took an extended leave of absence, claiming stress related to the incident.

In January 2016, while Gomes was out on leave, the County replaced the 1999 pick-up truck Gomes mainly used, with a new Ford F350 Crew Cab (GVWR over 10,000 pounds) for safety reasons.

On March 10, 2016, while Gomes was out on leave, the County revised its specifications document (2016 Specifications) to explicitly state that the Supervisor position required a current MEC (previous versions did not contain such a statement).

On March 14, 2016, the County notified Gomes that because he was "not able to perform the essential functions of the Street Cleaning Supervisor job[,]"he was "being referred to the County's Job Search Program."

In April 2016, the County offered Gomes a Custodian/Groundskeeper I position with the same salary and benefits that he previously received as Supervisor.

On September 7, 2016, Gomes returned to work at the new position, but after one month, he took another stress-related leave of absence.He subsequently never returned to work at the County, and filed his Complaint in 2017.

On July 10, 2020, the County filed a Motion for Summary Judgment(MSJ) on the Complaint, arguing that there were no genuine issues of material fact, and that under Suzuki v. State, 119 Hawai'i 288, 297-98, 196 P.3d 290, 299-300(App.2008),^[7] Gomes could not show that he was able to perform the essential duties of the Supervisor position (Element 2), or that he had suffered an adverse employment decision due to his diabetes (Element 3)--both of which were essential elements of a prima facie disability discrimination claim.

The September 8, 2020 Order Granting MSJ concluded that Gomes failed to establish Suzuki Element 2, "that he was qualified, with or without a reasonable accommodation, to perform the essential functions of his job[,]" which was "fatal" to Gomes's discrimination claim; and did not reach the County's remaining arguments.See COLs 10, 11, 19-22.

(1) Gomes argues that the Circuit Court erred in granting summary judgment despite the existence of genuine issues of material fact as to Suzuki Element 2, regarding whether operation of the Street Sweeper was an essential function of his Supervisor duties, and whether Gomes was qualified to perform the essential functions of his job with reasonable accommodation.

We review an award of summary judgment de novo under the same standard applied by the circuit court.Adams v. CDM Media USA, Inc., 135 Hawai'i 1, 12, 346 P.3d 70, 81(2015)(citingShoppe v. Gucci Am., Inc., 94 Hawai'i 368, 376, 14 P.3d 1049, 1057(2000)).

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 a 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.

Id.(cleaned up).

The HAR § 12-46-182(2012) definition of "qualified" contains two prongs, as follows:

"Qualified" with respect to a person with a disability means a person with a disability who satisfies:

(1) The requisite skill, experience, education, and other job-related qualification standards of the employment position such person holds or desires;^[8] and

(2) Who, with or without reasonable accommodation, can perform the essential functions of such position.

(Footnote added);seeSuzuki, 119 Hawai'i at 300, 196 P.3d at 302(quoting two-pronged definition of "qualified" under HAR § 12-46-182).Suzuki Element 2, that a plaintiff be qualified "to perform the essential duties" of the position, is the second prong referring to "essential functions" set forth above.

HAR § 12-46-182(2012) defines "[e]ssential functions" as "[t]he fundamental job duties of the employment position the person with a disability holds or desires[,]" and provides guidelines for the analysis of whether a job function is "essential," as follows:

(1) . . . The term "essential functions" does not include the marginal functions of the position.

(2) In determining whether a job function is essential, the focus should be on the purpose and importance of the function as it relates to the result to be accomplished rather than on the manner in which the function is presently performed. . . .

(3) A job function may be considered essential for any of several reasons, including, but not limited to, the following:

(A)The function may be essential because the reason the position exists is to perform that function;

(B) The function may be essential because of the limited number of employees available among whom the performance of that job function can be distributed; or (C) The function may be highly specialized so that the incumbent in the position is hired for his or her expertise or ability to perform the particular

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