Medeiros v. Labor and Indus. Relations

• Decision Date: 01 September 2005
• Docket Number: No. 24318.,24318.
• Citation: 118 P.3d 1201
• Court: Hawaii Supreme Court
• Parties: Susan C. MEDEIROS, Appellant-Appellant, v. HAWAI`I DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Unemployment Insurance Division; Employment Security Appeals Referee's Office; Castle Resorts & Hotels; Hilo Hawaiian Hotel, Appellees-Appellees.

118 P.3d 1201

Susan C. MEDEIROS, Appellant-Appellant, v. HAWAI`I DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, Unemployment Insurance Division; Employment Security Appeals Referee's Office; Castle Resorts & Hotels; Hilo Hawaiian Hotel, Appellees-Appellees.

No. 24318.

Supreme Court of Hawai`i.

September 1, 2005.

Robert J. Crudele, Hilo, Brian J. De Lima, Howard H. Shiroma, and David H. Lawton, on the briefs, for appellant-appellant Susan C. Medeiros.

Li-Ann Yamashiro, Deputy Attorney General, on the briefs, for appellee-appellee Director of Labor and Industrial Relations, State of Hawai`i.

NAKAYAMA, ACOBA, and DUFFY, JJ.; and LEVINSON, J., Dissenting, with whom MOON, C.J., Joins.

Opinion of the Court by DUFFY, J.

Appellant-appellant Susan C. Medeiros appeals from the May 4, 2001 final judgment of the Circuit Court of the Third Circuit, the Honorable Riki May Amano presiding, alleging that the circuit court erred in entering the May 4, 2001 order affirming Decision No. 0001888 of the Employment Security Appeals Referees' Office (ESARO) for the following reasons: (1) "the third circuit court committed error in affirming the decision of the Appeals Officer because the findings of the Appeals Officer are inconsistent with the conclusion that [Medeiros] was terminated for misconduct connected with work as set forth in [Hawai`i Administrative Rule (HAR)] § 12-5-51 [(1981)]";¹ and (2) "the third circuit court committed error by addressing the Appeals Officer's factual finding, although those findings had not been challenged, and the issue before the [circuit] court was whether the findings of the Appeals Officer supported the [ESARO's] conclusion." (Emphasis in original.)

On appeal, Medeiros argues: (1) that she "is entitled to unemployment compensation because the findings of the Appeals Officer are inconsistent with [a] wilful or wanton disregard of the [appellees-appellees Castle Resorts' & Hotels' and Hilo Hawaiian Hotel's [collectively hereinafter, "the Employer"]] interest"; and (2) that "the third circuit court's [May 4, 2001] order affirming [the ESARO's] decision [No.] 0001888 [hereinafter, `the May 4, 2001 order'], final judgment, [May 4, 2001] notice of entry of judgment[,] and order" are erroneous "because they fail to address the inconsistency of the Appeals Officer's findings with the Appeals Officer's conclusion."

The appellee-appellee Director of the Department of Labor and Industrial Relations' (DLIR), State of Hawai`i [collectively hereinafter, "the Director"] counters that, "under the employment insurance laws," Medeiros's "conduct of placing her hands all the way around her co-worker's neck and throat and shaking her co-worker for five seconds because she was angry at her co-worker for causing a work schedule change[ ] was misconduct" and asserts that this court should affirm the May 4, 2001 final judgment of the circuit court "that. . . Medeiros was disqualified for unemployment insurance benefits because she was discharged for misconduct connected with work."

Medeiros replies: (1) "that the Appeals Officer was incorrect" in affirming the Director's decision denying Medeiros unemployment benefits because the Appeals Officer (a) "either employed the hotel's `zero tolerance policy,' which flies in the face of the legislative intent calling for liberal construction of Hawai`i's unemployment compensation statute" or (b) "the Appeals Officer . . . inconsistently concluded on one hand that Appellant's actions lacked wrongful intent but on the other hand concluded they were wilful and wanton"; (2) that the Director's argument on appeal "mis-characterize[s] the unchallenged findings [of the Appeals Officer] and . . . [would have] this Appellate Court . . . rely on findings which do not exist"; (3) that, "based on the findings of the Appeals Officer in this case, those cases relied upon by the Director which represent intentional acts or life threatening acts can not be factually relevant to the issue at hand"; and (4) that Medeiros "has met her burden of making a convincing showing that the decision is invalid because . . . it[ is] unjust and unreasonable [in its] consequences." (Internal quotation signals and citations omitted.)

For the reasons discussed below in section III, we affirm the circuit court's (1) May 4, 2001 order affirming ESARO's Decision No. 0001888, and (2) May 4, 2001 final judgment.

I. BACKGROUND

The following unchallenged statement of procedural history and factual background is set forth in Decision No. 0001888:

The claimant [(i.e., Medeiros)] worked as a hostess for the Employer from November 1978 until she was suspended on July 30, 2000 for placing her hands around the neck of a co-worker. She was discharged effective August 9, 2000.

The claimant's co-worker was dissatisfied with a policy of the Employer related to work scheduling. The co-worker complained about the policy to the food and beverage director and thereafter the policy was changed. As a result of the policy change, many employees' schedules changed, including that of the claimant. On the morning of July 30, 2000, when the schedules changed, the claimant came up behind the co-worker in the bus station of the restaurant, put her hands around the co-worker's neck and throat and shook her lightly for about five seconds, and said[,] "It's all because of you." The claimant then voluntarily removed her hands from the [co-worker's] throat. The co-worker was shocked because she had not seen the claimant approaching her, and she was offended because she did not think she should be touched in that manner. She was not, however, actually afraid of being hurt by the claimant. The claimant and the co-worker had known each other for nine years and[ ] prior to this incident were on good terms and joked around with one another.

This incident was witnessed by another co-worker, who did not perceive the claimant's actions as either violent or threatening[] and who was of the opinion that the co-worker whose throat was grabbed "took it the wrong way." After the incident, the three of them sat together and talked and laughed for a few minutes. Although she participated in the conversation, the co-worker who had been grabbed by the throat continued to be upset but did not say anything because she did not want to make [a] scene. She also did not want to disrupt the work schedule so she did not report the matter until her work schedule ended at about 9 or 9:30 a.m. Then she reported the matter to the food and beverage director. She also related the matter to the human resources manager and the general manager.

These three managers then met and discussed the matter in light of the company's "zero tolerance for violence" policy. The company policy, which had been distributed to employees, including the claimant, in 1998, provides:

"[Employer] has zero tolerance for violence in the workplace. Violence is defined to include but is not limited to: physically harming another, shoving, pushing, harassment, verbal or physical intimidation, coercion, brandishing weapons and/or threats or talk of violence. Workplace is defined to include but is not limited to: being on Company premises, Company time or Company business. No talk of violence, including joking about violence, will be tolerated."²

The managers discussed this policy and the manner it should be applied[ ] and determined that the claimant should be suspended pending an investigation. The food and beverage director prepared a corrective action suspending the claimant, called her into his office on July 31, 2000, read it to her[,] and then gave her an opportunity to make any written comments she wished. [The claimant] wrote that she had put her hands around her co-worker's neck, but that she wasn't punched in for work at the time and that she and her two co-workers were "laughing and playing" thereafter.³

The co-worker was then asked to make a written statement about the incident. She provided the statement on July 31, 2000. Her statement said, among other things:

"I was quite in shock as well as very upset that this event had just occurred. My reaction consisted of swallowing the words and the neck grabbing, continuing on with my job duties."

"To me, anytime someone places two hands or even one hand on another person's neck/throat area, the sole intent of that aggressive behavior is definitely to choke or even hang that person up. If she was so upset with the new changes and had a problem, I feel she should have taken the time to talk personally with you and our supervisors regarding her concerns."

". . . I strongly felt yesterday was [a] great example of how actions speak louder than words.[ ]"

The information about the incident, including this statement[,] was sent to the corporate office in Honolulu because the managers on the Big Island were not empowered to discharge employees. On August 08, 2000, the corporate office advised the general manager there were "no exceptions" to the "zero tolerance" policy and that the claimant should be discharged.

The claimant had worked for the Employer for 22 years and had never before been involved in such an incident. Although she had received a copy of the "zero tolerance" policy two years earlier, she did not remember it.

As noted above, Medeiros was suspended on July 30, 2000. On August 2, 2000, Medeiros filed a "common application form" for "determination of insured status" and/or "work registration" with the Director's Unemployment Insurance Division (UID). On August 14, 2000, the UID mailed two notices of unemployment insurance decisions, which effectively ruled that Medeiros was disqualified from receiving any unemployment insurance benefits. The first notice of decision explained as follows:

You were employed with the Hilo Hawaiian Hotel as a hostess from November 1978. On July 30, 2000, you were suspended until August 8, 2000, for physically assaulting another employee. On July 30, 2000, you placed your hands...