Hac v. University of Hawaii

• Decision Date: 17 July 2003
• Docket Number: No. 22357.,22357.
• Citation: 73 P.3d 46,102 Haw. 92
• Parties: Anna HAC, Plaintiff-Appellant, v. UNIVERSITY OF Hawai`i; Paul Yuen; Shu Lin; Bharat Kinariwala; N. Thomas Gaarder; James Holm-Kennedy; Frank Koide; Anthony Kuh; David Yun and Kazutoshi Najita, Defendant-Appellees.
• Court: Hawaii Supreme Court

73 P.3d 46

102 Haw. 92

Anna HAC, Plaintiff-Appellant, v. UNIVERSITY OF Hawai`i; Paul Yuen; Shu Lin; Bharat Kinariwala; N. Thomas Gaarder; James Holm-Kennedy; Frank Koide; Anthony Kuh; David Yun and Kazutoshi Najita, Defendant-Appellees.

No. 22357.

Supreme Court of Hawai`i.

July 17, 2003.

Carl H. Osaki, Honolulu, on the briefs, for plaintiff-appellant.

Kathleen N.A. Watanabe and Sarah R. Hirakami, Deputy Attorneys General, State of Hawai`i, on the briefs, for defendants-appellees.

ACOBA, J. and Circuit Judge HIFO, Assigned by Reason of Vacancy, Joining in Parts I-V, VII-VIII and Concurring Separately as to Part VI; With LEVINSON, J., Concurring Separately as to parts IV and V and Joining In Parts I-III and VI-VIII; and MOON, C.J., Concurring in Part and Dissenting in Part, joined by NAKAYAMA, J.

Opinion of the Court by ACOBA, J. as to Parts I, II, III, VII, and VIII and Announcing the Judgment of the Court as to Parts IV, V, and VI.

We hold that the circuit court of the first circuit (the court)¹ did not abuse its discretion in (1) denying a motion to compel discovery by Plaintiff-Appellant Anna Hac (Plaintiff) without prejudice and providing her an opportunity to tailor her discovery request or re-file her motion, and (2) granting the motion in limine of Defendants-Appellees University of Hawai`i, Paul Yuen, Shu Lin, Bharat Kinariwala, N. Thomas Gaarder, James Holm-Kennedy, Frank Koide, Anthony Kuh, David Yun, and Kazutoshi Najita (collectively Defendants) to exclude evidence regarding the performance of the persons who reviewed Plaintiff's promotion application.

But we hold that the court erred in directing a verdict as to Plaintiff's claim of intentional infliction of emotional distress. However, the court's error was harmless, inasmuch as the jury expressly found for the Defendants regarding Plaintiff's other claims, all of which turned on formulations entailing thresholds less stringent than the "outrageous conduct" standard requisite to an intentional infliction of emotional distress claim. In addition, we clarify that the elements of an action for intentional infliction of emotional distress are 1) that the conduct allegedly causing the harm was intentional or reckless, 2) that the conduct was outrageous, and 3) that the conduct caused 4) extreme emotional distress to another. Accordingly, we affirm the March 2, 1999 final judgment in favor of Defendants and against Plaintiff.

I.

On August 1, 1991, Plaintiff was hired as an associate professor in a tenure-track position in the Department of Electrical Engineering (Department) in the College of Engineering (College) at the University of Hawai`i (University). In October 1993, Plaintiff applied for and was granted tenure effective July 1, 1994.

In October 1994, Plaintiff filed an application "for promotion from the rank of associate professor to full professor." In reviewing an application for promotion, a Department personnel committee evaluates a candidate's application according to the Department's "Procedures and Criteria for Promotion"² and writes a recommendation of its findings to the Department Chairperson. The Department Chairperson then reviews the personnel committee's recommendation and issues a decision on the application. Although not clarified in the record, it appears that the Dean of the College may review the Department's recommendations and if the candidate disagrees with the Department's and College's determination, he or she may appeal to the University's Tenure and Promotion Review Committee (review committee) for review of the application and the Department's and College's decisions. From what transpired in the present case, it appears that the review committee may make a final determination, as it may overturn the Department's and College's decisions to reject promotion.

Sometime in November 1994, Plaintiff's application for a full professor position was denied by a personnel committee.³ At that time, the personnel committee members were Kinariwala, the chairperson, Gaarder, Holm Kennedy, Koide, Kuh, and Yun.⁴ Lin was the Chair of the Department from before August 1991 to December 1995.

The personnel committee applied the Department's "Procedures and Criteria for Promotion" in evaluating Plaintiff's application and voted against her promotion on the ground that she, inter alia, "ha[d] not met the departmental requirements for promotion at that level." Lin, the Department chair at the time of Plaintiff's application for promotion, and Yuen, the Dean at the time, agreed with the personnel committee's assessment. The review committee also unanimously agreed with the personnel committee's action because, although Plaintiff had published journal articles, she had unfavorable student evaluations, a low score in effective teaching, and a poor record in obtaining external funding. Thus, according to the personnel committee, Plaintiff did not meet the requirements to obtain full professor status.

In October 1995, Plaintiff submitted a second application for promotion to full professor status. Again, her request for promotion was denied by the personnel committee. Lin, Yuen, and the review committee agreed with this decision.

On November 9, 1995, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC), stating that her October 1994 application for promotion was denied in June 1995 and that "[she] believe[d] that [she] ha[d] been discriminated against because of [her] sex, Female[,] and national origin, Polish[,] in violation of Title VII of the Civil Rights Act of 1964[.]" On August 5, 1996, Plaintiff filed a substantially similar charge of discrimination, claiming that her October 1995 promotion application was denied in May 1996 for the aforementioned reasons.

In October 1996, Plaintiff, for the third time, applied for promotion to a full professor. The personnel committee, Lin, and Yuen again objected to the promotion. The review committee, however, recommended promotion.

Plaintiff filed a third charge of discrimination with the EEOC on November 19, 1996. The charge stated, inter alia, that: (1) "[o]n October 4, 1996, [she] met with Chairman Najita and requested that [she] be placed on the Department Professional Committees"; (2) "[she wa]s not placed on any committee, even though [she was] professionally qualified to be on every committee"; and (3) "[she] ha[s] been denied the same terms and conditions of employment as [her] colleagues, in retaliation for [her] having filed with the EEOC."

Plaintiff was promoted to full professor in July 1997.

On July 2, 1997, Plaintiff filed a complaint in the court against Defendants. Plaintiff asserted: (1) sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (1994) (Title VII);⁵ (2) gender, ethnic, and national origin discrimination under Title VII; (3) retaliation under Title VII; (4) unlawful discrimination under Hawai`i Revised Statutes (HRS) chapter 378;⁶ (5) deprivation of rights under 42 U.S.C. § 1983 (1996);⁷ (6) negligence; (7) defamation; and (8) intentional infliction of emotional distress.

A.

On November 10, 1998, Plaintiff filed a Motion to Compel Discovery (motion to compel). In her motion to compel, Plaintiff requested all documents relating to: (1) "any performance plan and/or appraisal for [Defendants]"; (2) "any evaluation of any member of the College of Engineering by their students"; (3) "any student complaints about [Defendants]"; (4) "any student complaints about any other person who served as a faculty member of the College of Engineering at any time that [Plaintiff] also so served"; (5) "any application for promotion or tenure made by [Defendants]"; (6) "any application for promotion or tenure made from 1987 to the present by any other person who served as a faculty member of the College of Engineering"; and (7) "each and every post-tenure review conducted on a member of [the] College of Engineering[.]"⁸ (Emphases added.)

The court heard the motion on December 22, 1998 and on January 12, 1999, issued an order denying the motion on the grounds that the request was not narrowly tailored and that it did not "establish sufficient similarities between herself and the scope and subject matter of the discovery[.]"⁹

B.

On February 2, 1999, during pre-trial proceedings, Defendants filed a motion in limine to exclude evidence comparing the performance of the persons who had reviewed Plaintiff's promotion dossiers with the promotion criteria that were applied to Plaintiff (motion to exclude). In the motion to exclude, Defendants asserted that Plaintiff should be prevented from seeking and presenting evidence and testimony "concerning the teaching evaluations, research and public records, and/or extramural funding records of the members of the [Department personnel committee] and Department Chair (who are all tenured and full professors) who evaluated Plaintiff's promotion dossier/files and made negative promotion recommendations[.]"

At a hearing on the motion held on February 5, 1999, Plaintiff argued that the requested information would demonstrate that the professors on the personnel committee themselves did not meet the promotion criteria that was applied to Plaintiff. Defendants, on the other hand, maintained that such evidence as applied to the Department personnel committee members and Department Chairs "[wa]s irrelevant and [would] confuse the issues, ... [and] waste the court's and jury's time" because the full professors on the personnel committee were admitted under criteria different than those applied to Plaintiff. Defendants maintained the "real issue [was] whether [Defendants] applied the promotion criteria properly to the [P]laintiff[,]" not whether the professors on the committee met the criteria themselves.

The court orally granted Defendants' motion, reasoning that the issue was "whether or not [P]laintiff met [the] criteria to go from associate professor to...