Marshall v. University of Hawaii, 14728

• Decision Date: 09 December 1991
• Docket Number: No. 14728,14728
• Citation: 9 Haw.App. 21,821 P.2d 937
• Parties: , 71 Ed. Law Rep. 934 Michael D. MARSHALL, Plaintiff-Appellant, v. UNIVERSITY OF HAWAII, Paul Kopecky, Edward J. Kormondy, Charles M. Fullerton and Doe Entities 1-50, Defendants-Appellees.
• Court: Hawaii Court of Appeals

Page 937

821 P.2d 937

9 Haw.App. 21, 71 Ed. Law Rep. 934

Michael D. MARSHALL, Plaintiff-Appellant, v. UNIVERSITY OF HAWAII, Paul Kopecky, Edward J. Kormondy Charles M. Fullerton and Doe Entities 1-50 Defendants-Appellees.

No. 14728.

Intermediate Court of Appeals of Hawai'i.

Dec. 9, 1991.

Syllabus by the Court

1. Rule 56(f), Hawaii Rules of Civil Procedure (1990), should be liberally construed, and where the defendants filed a motion for summary judgment 36 days after the last defendant was served and 43 days after the complaint was filed, and where the plaintiff in his memorandum opposing the motion and at the hearing on the motion informed the court that he needed discovery on several key issues, the court should have allowed plaintiff time to conduct discovery.

2. The plain language of Hawaii Revised Statutes § 661-3 (1985) merely precludes an action against the state where the plaintiff already has an action pending against any person who at the time the claim against the state allegedly arose acted or professed to act, directly or indirectly, under the state's authority. The statute does not operate to prevent a joinder of the state and any such person in one suit.

3. Where the terms of public employment are governed by a collective bargaining agreement whose terms include a grievance procedure to dispose of employee grievances against the public employer, an aggrieved employee is bound by the terms of the agreement and must fully exhaust the contractual remedy bargained for before an action against the public employer may be brought.

4. Where the terms of a collective bargaining agreement provide that any rights and benefits accorded to the employees by policies adopted by the employer relating to wages, hours and terms and conditions of employment existing at the execution of the agreement shall be retained by the employees, the legal nature and effect of such policies is a genuine issue of material fact, since it depends on the intent of the parties to the collective bargaining agreement.

5. Where an employee is asserting a claim against his or her employer for an industrial injury allegedly caused by the employer's negligence, the employer's liability is restricted exclusively to a recovery under the worker's compensation statute.

6. An employee who, by his willful and wanton misconduct, causes injury to another co-employee is not relieved by the worker's compensation statute from liability to the co-employee for such injuries.

7. Where the complaint alleges a claim against a fellow employee for negligent infliction of emotional distress, which is barred by the workers' compensation statutes, and in an affidavit opposing a motion for summary judgment the plaintiff avers that the moving parties' actions were maliciously motivated, which is a claim that is not barred by the worker's compensation statutes, the plaintiff should be allowed to amend his complaint rather than have summary judgment rendered against him.

8. A non-judicial public official is accorded only qualified immunity for his or her tortious acts. If in exercising his or her official authority the public official was motivated by malice, and not by an otherwise proper purpose, the cloak of immunity is lost, and the official must defend the suit the same as any other defendant.

9. The existence of malice is generally for the jury, and summary judgment is only proper on that issue when it has been removed from the case by uncontroverted affidavits or depositions.

10. The elements of the tort of intentional infliction of emotional distress are (1) that the act allegedly causing harm was intentional; (2) that the act was unreasonable; and (3) that the actor should have recognized that the act was likely to result in illness. The question of reasonableness is for the court in the first instance; however, if reasonable persons could differ on the question, it should be left to the jury. The question of whether a defendant should have recognized that his act was likely to cause injury is a jury question.

11. The first inquiry in a claim under 42 U.S.C. § 1983 is whether the plaintiff has been deprived of a right secured by the Constitution and laws of the United States.

12. A probationary university employee has no property interest in obtaining tenure.

13. Reputation alone, apart from some tangible interest such as employment, does not implicate any liberty or property interest sufficient to invoke the protection of the due process clause.

William J. Rosdil (Paul K. Hamano with him on the briefs, William J. Rosdil, Attorney at Law, A Law Corp., of counsel), Hilo, for plaintiff-appellant.

Norma Desantis Titcomb, Deputy Atty. Gen. (Wesley F. Fong, Deputy Atty. Gen., with her on the brief), Honolulu, for defendants-appellees.

Before BURNS, C.J., HEEN, J., and Circuit Judge HUDDY, Assigned by reason of vacancy.

HEEN, Judge.

This is an appeal by Plaintiff-Appellant Michael D. Marshall (Marshall) from a summary judgment entered in favor of Defendants-Appellees University of Hawaii (UH), Paul Kopecky (Kopecky), Edward J. Kormondy (Kormondy), and Charles M. Fullerton (Fullerton). ¹ The dispositive question is whether Marshall should have been accorded time for discovery prior to any ruling on Defendants' motion to dismiss or for summary judgment (Motion). We answer yes as to a part of Count I and as to Counts III, IV and V, and vacate the judgment as to those counts; however, we answer no and affirm the judgment as to Counts II, VI, and VII.

I.

On October 28, 1988, Marshall, then an assistant professor in the College of Arts and Sciences at the UH Hilo campus (UH Hilo), filed an application for tenure and promotion (tenure application). At that time, Kormondy was Chancellor, Kopecky was Dean of Student Services, and Fullerton was Dean of the College of Arts and Sciences at UH Hilo. Marshall's tenure application was in accordance with a memorandum from Fullerton to the faculty establishing deadlines for processing tenure applications. According to Fullerton's memorandum, the deadline for an application to be routed through the tenure review process to Kormondy was March 10, 1989. The terms of Marshall's employment were governed by a collective bargaining agreement entitled "1987-89 Agreement Between the University of Hawaii Professional Assembly and the Board of Regents of the University of Hawaii" (Agreement).

On March 1, 1989, Kopecky, in accordance with his duties under the UH Hilo "Policy Statement on Sexual Harassment" (Policy) ² promulgated by the Chancellor of UH Hilo, ³ interviewed a female UH Hilo student who complained of sexual harassment by Marshall in October 1984. Kopecky determined that "good cause" existed to investigate the complaint. Kormondy also interviewed the student and agreed with Kopecky's assessment.

Kopecky initiated an informal investigation and interviewed Marshall on March 30, 1989. Marshall admitted engaging in romantic activity with the student in her home, but denied that his actions were unwanted or unwelcome. Kopecky told Marshall that he was investigating two complaints against Marshall. Marshall requested the names of the complainants and copies of their written statements. Kopecky would not reveal the names and told Marshall there were no written complaints because the investigations were still in the informal stage.

Kopecky was not able to resolve the complaints because of the conflicting accounts and because he did not have access to any medical or police records. However, after his meeting with Marshall, he felt there was factual support for the first student's complaint and recommended a formal investigation. On the basis of advice from the State Attorney General, Kopecky recommended to Kormondy that a private investigator be engaged to conduct a formal investigation and a committee be appointed to review the results of the investigation. Upon Kormondy's instruction, Fullerton retained an investigator and organized a committee.

On May 12, 1989, Fullerton provided Marshall with a statement of the complaint, but not a statement from the complainant. ⁴ On the same day, Kormondy informed Marshall by letter that if the "formal" hearing was not completed by May 24, 1989, the date on which promotion and tenure recommendations were required to be transmitted to the UH Board of Regents (Board), Marshall's probationary period would be extended for one year.

On May 22, 1989, Marshall filed a grievance in accordance with the Agreement alleging that Kormondy did not properly evaluate Marshall's tenure application and that the extension of his probationary status "was taken as a form of discipline without just cause. I have been discriminated against based on my race." In the grievance document, Marshall demanded that his tenure application be forwarded to the Board for action without any comment from Kormondy that might prejudice approval.

On August 16, 1989, the hearing committee reported to Fullerton that it could not reach a conclusion on the complaint against Marshall and recommended that the matter be closed. On August 23, 1989, Fullerton advised Kormondy of the report and his concurrence with the committee's recommendation. Fullerton also recommended that Marshall's tenure application be reactivated and Marshall be recommended for tenure retroactive to July 1, 1989. Fullerton's recommendation was followed, and the Board approved tenure for Marshall effective July 1, 1989. On December 5, 1989, after Marshall was informed of the Board's actions, his grievance was withdrawn. However, the UH Hilo personnel office did not receive notice of the Board's action on the change in Marshall's rank and salary until Marshall complained, on January 19, 1990, that the paperwork had not been forwarded to that office. Additionally, the approval of Marshall's tenure and promotion was not publicized, contrary to UH Hilo policy.

Marshall filed the complaint below on April 17, 1990. Kopecky,...