Gonsalves v. Nissan Motor in Hawaii, 23505.

• Court: Supreme Court of Hawai'i
• Citation: 58 P.3d 1196,100 Haw. 149
• Docket Number: No. 23505.,23505.
• Parties: Leland GONSALVES, Plaintiff-Appellee/Cross-Appellant, v. NISSAN MOTOR CORPORATION IN HAWAI`I, LTD.; and Infiniti Motor Sales, Inc., Defendant-Appellants/Cross-Appellees, and John Does 1-10; Jane Does 1-10; Doe Corporations 2-10, Doe Partnerships 1-10; or Other Entities 1-10, Defendants.
• Decision Date: 27 November 2002

58 P.3d 1196
100 Haw. 149

Leland GONSALVES, Plaintiff-Appellee/Cross-Appellant,
v.
NISSAN MOTOR CORPORATION IN HAWAI`I, LTD.; and Infiniti Motor Sales, Inc., Defendant-Appellants/Cross-Appellees, and
John Does 1-10; Jane Does 1-10; Doe Corporations 2-10, Doe Partnerships 1-10; or Other Entities 1-10, Defendants

No. 23505.

Supreme Court of Hawai`i.

November 27, 2002.

As Amended December 18, 2002.

Reconsideration Denied December 24, 2002.¹

58 P.3d 1201

Anna M. Elento-Sneed (Terry E. Thomason, and Joanne L. Grimes, Honolulu, with her on the briefs), of Carlsmith Ball LLP, for Defendants-Appellants/Cross-Appellees Nissan Motor Corporation in Hawai`i, Ltd. and Infiniti Motor Sales, Inc

Jerry M. Hiatt, Kamuela, for Plaintiff-Appellee/Cross-Appellant Leland Gonsalves.

Paul T. Tsukiyama and Reid M. Yamashiro, Deputies Corporation Counsel, on the briefs, for Amicus Curiae City and County of Honolulu.

Kenneth B. Hipp and Sarah O. Wang, Honolulu, of Marr Hipp Jones & Pepper, on the briefs, for Amicus Curiae Hawai`i Employers Council.

Jared H. Jossem, Honolulu, and Lynne T. Toyofuku, of Jossem & Toyofuku, on the briefs, for Amicus Curiae Society of Human Resource Management.

Ted H.S. Hong, Hilo, Assistant Corporation Counsel, on the briefs, for Amicus Curiae County of Hawai`i.

Blaine J. Kobayashi, Deputy Corporation Counsel, on the briefs, for Amicus Curiae County of Maui.

James T. Leavitt, Jr., Honolulu, on the briefs, for Amicus Curiae Consumer Lawyers of Hawai`i.

David F. Simons and Matthew J. Viola, Honolulu, of Simons Wilson Viola, on the briefs, for Amicus Curiae Hawai`i Chapter of the National Employment Lawyers Association.

John Ishihara, Honolulu, on the briefs, for Amicus Curiae Hawai`i Civil Rights Commission.

Magali V. Sunderland, Honolulu, on the briefs, for Amicus Curiae Hawai`i Women Lawyers.

Daphne Barbee-Wooten, Honolulu, on the briefs, for Amicus Curiae United States Equal Employment Opportunity Commission.

MOON, C.J., LEVINSON, NAKAYAMA, AND RAMIL, JJ., and ACOBA, J., Concurring in Part and Dissenting in Part.

Opinion of the Court by RAMIL, J.

I. INTRODUCTION

58 P.3d 1202

On appeal,² Defendants-Appellants/Cross-Appellees Nissan Motor Corporation in Hawai`i, Ltd. and Infiniti Motor Sales, Inc.<sup>3</sup> (collectively, "Nissan") argue that the circuit court erred by denying Nissan's motion for summary judgment, two motions for judgment as a matter of law,<sup>4</sup> and renewed motion for judgment as a matter of law<sup>5</sup> because Plaintiff-Appellee/Cross-Appellant Leland Gonsalves ("Gonsalves") is unable to maintain his sex discrimination, implied contract, and promissory estoppel claims. For the reasons discussed herein, we remand for entry of a judgment in favor of Nissan with respect to the sex discrimination, implied contract, and promissory estoppel claims. Furthermore, we affirm: (1) the circuit court's denial of Gonsalves's ex parte request for entry of default of Nissan as to Gonsalves's first amended and supplemental complaint because Nissan "defended" itself for purposes of Hawai`i Rules of Civil Procedure (HRCP) Rule 55; (2) the circuit court's denial of Gonsalves's motion for leave to file a second amended and supplemental complaint because Gonsalves's claims were sufficiently articulated in his first amended complaint; (3) the circuit court's dismissal of Gonsalves's claim for defamation because the publication requirement of defamation cannot be based on compelled self-publication; (4) the circuit court's granting of sanctions against Gonsalves; and (5) the circuit court's denial of Gonsalves's motion for sanctions. All other points of error brought by Gonsalves and Nissan need not be addressed

II. BACKGROUND

On February 27, 1998, after working for about ten months at Nissan as a service department manager, Gonsalves was fired. On November 6, 1998, Gonsalves filed a complaint against Nissan, alleging (1) sex discrimination, (2) defamation, (3) promissory estoppel, and (4) intentional and negligent infliction of emotional distress.⁶

On September 28, 1999, Nissan filed a motion for summary judgment on all claims. On November 15, 1999, the circuit court denied the motion. On November 19, 1999, the court sua sponte reconsidered its ruling and granted summary judgment in favor of Nissan on the negligent infliction of emotional distress claim.

58 P.3d 1203

On October 7, 1999, Gonsalves filed his first amended and supplemental complaint. Nissan had filed an answer to Gonsalves's original complaint on November 30, 1998, but did not file an answer to Gonsalves's first amended and supplemental complaint. On October 21, 1999, Gonsalves requested an entry of default as to his amended and supplemental complaint. The circuit court denied the motion

At trial, Neldine Torres testified that Gonsalves made sexual comments to her,⁷ blew on her neck, poked her sides near her braline, and touched her between her knee and thigh. There was testimony that Kevin Kualapai, who replaced Gonsalves as a service manager, made inappropriate comments to Torres, and Torres did not report him for sexual harassment.⁸ In addition, a male employee had passed out lingerie calendars to other employees, with no objection.

Gonsalves testified that, in January 1998, Wayne Suehisa, vice president, administrator, and treasurer of Nissan Motor Corporation in Hawai`i, Ltd., informed him of Torres's sexual harassment allegations against him. Gonsalves denied the complaints. Suehisa admitted telling Gonsalves that he would get a "thorough and fair investigation," that he did not "need to get a lawyer," and that "because [Nissan was] planning on continuing to do an investigation at that point in time, [Suehisa] wasn't planning on terminating [Gonsalves]." Gonsalves testified that Suehisa also apprised him that he "didn't have to worry about losing [his] job."

On January 26, 1998, Suehisa drafted an inter-office memorandum detailing Torres's claims against Gonsalves. The next day, Suehisa composed another inter-office memorandum including Gonsalves's denial of the accusations. On January 28, 1998, Suehisa stated in an inter-office memorandum that "[Torres] will maintain her position, as well as, [Gonsalves]."

On February 15, 1998, Gonsalves wrote a memorandum to Nissan regarding the "hostile work environment" created by Torres. He testified that "her attitude towards work was just zero" and that she "was insubordinate by not performing the duties that she was supposed to." Although Suehisa received Gonsalves's memorandum, he did not investigate the claim. Suehisa stated that he did not think he had a "legal duty" because the complaints were "performance related." Moreover, he stated that he had already moved supervisory duties over Torres from Gonsalves to Roderick Morrison, vice president and general manager of Infiniti Motor Sales, Inc.

Suehisa hired Linda Kreis to investigate Torres's allegations. Kreis testified that she interviewed and prepared statements for ten employees, including Torres and Gonsalves. After interviewing the witnesses, Kreis prepared a report summarizing the results of her investigation. She concluded that Gonsalves's "behavior ... at the time of writing the report already could be construed as creating a hostile environment" and recommended that Gonsalves "be counseled about his unacceptable behavior and disciplined in a manner to assure there's no reoccurrence." Because Kreis had not received all of the signed statements, she termed this report an "interim report of investigation."

On February 21, 1998, Kreis sent the interim report to Suehisa. Suehisa responded to the report with "major disappointment":

You know, here we had a manager that I guess was performing our game plan, like I had mentioned, who had a game plan to grow the business, he was executing on that. He seemed to be going in the right direction operationally. And, you know, as

58 P.3d 1204

I had said earlier this morning, we were trying to, well, what I was hoping for was that we could come to a different resolution. But as you read each paragraph, as you came to find out that allegation after allegation was being corroborated by not only one witness but a number of witnesses, and that those witnesses were also bringing up things that they saw, they heard, it was very disappointing. It was d[is]heartening, actually.

On February 24, 1998, Suehisa decided to terminate Gonsalves. Given the evidence already adduced from various witnesses, Suehisa determined that he did not need the final report. At the time of Suehisa's decision, four of the affidavits, including one from Torres, had not yet been signed. One of the later-received signed affidavits was actually supportive of Gonsalves.

On February 27, 1998, Nissan terminated Gonsalves. Suehisa explained that he waited until February 27, 1998 because he wanted to see whether receipt of any of the outstanding statements would "substantially change[ ]" the facts already established. Suehisa testified that he believed he was required to "do a fair job" in investigating any alleged misconduct. In addition, Suehisa stated that Nissan's termination letter explained all of the reasons for Gonsalves's termination. The termination letter articulated that "[b]ased on Ms. Torres'[s] allegations and the corroborating statements of the witnesses, [Nissan had] concluded that [Gonsalves's] conduct toward Ms. Torres could be construed as sexual harassment and warrants disciplinary action." The letter further expounded that Gonsalves had retaliated against Torres and other employees, contrary to Nissan's harassment and discrimination policy. On cross-examination, Gonsalves admitted that he had received a copy of Nissan's Policies and Guidelines Manual.

Gonsalves testified that he applied for about forty to fifty jobs after being terminated by Nissan, but was rejected from each one. On the applications, he was required to explain the reasons for his termination by Nissan.

On December 28, 1999, at...