Nelson v. University of Hawaii

• Decision Date: 11 December 2001
• Docket Number: No. 22236.,22236.
• Citation: 97 Haw. 376,38 P.3d 95
• Parties: Karyn NELSON, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI`I, as body corporation; Bart Buxton, individually and in his official capacities as Athletic Training Education Director and Assistant Professor of the Health and Physical Education and Recreation Department, University of Hawai`i-Manoa; Kwok W. Ho, individually and in his official capacity as Chair of Health and Physical Education and Recreation Department, University of Hawai`i, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Unincorporated Organizations 1-10; and Doe Governmental Agencies 1-10, Defendants.
• Court: Hawaii Supreme Court

38 P.3d 95

97 Haw. 376

Karyn NELSON, Plaintiff-Appellant, v. UNIVERSITY OF HAWAI`I, as body corporation; Bart Buxton, individually and in his official capacities as Athletic Training Education Director and Assistant Professor of the Health and Physical Education and Recreation Department, University of Hawai`i-Manoa; Kwok W. Ho, individually and in his official capacity as Chair of Health and Physical Education and Recreation Department, University of Hawai`i, Defendants-Appellees, and John Does 1-10; Jane Does 1-10; Doe Corporations 1-10; Doe Partnerships 1-10; Doe Unincorporated Organizations 1-10; and Doe Governmental Agencies 1-10, Defendants.

No. 22236.

Supreme Court of Hawai`i.

December 11, 2001.

R. Steven Geshell, Honolulu, on the briefs, for plaintiff-appellant.

Elton K. Suzuki and Janice T. Kemp, Deputy Attorneys General, on the briefs, for defendants-appellees.

MOON, C.J., LEVINSON, NAKAYAMA, and ACOBA, JJ., and RAMIL, J., Dissenting.

Opinion of the Court by MOON, C.J.

Plaintiff-appellant Karyn Nelson brought an action against defendants-appellees the University of Hawai`i, Bart Buxton (Dr. Buxton), and Kwok W. Ho (Dr. Ho) [hereinafter, collectively, Defendants], involving numerous claims arising out of her employment as an assistant professor at the university. Following a jury trial, before then-circuit court judge, the Honorable James R. Aiona, Jr., the jury returned a verdict in favor of Nelson on her claim of negligent infliction of emotional distress (NIED), awarding her $50,000.00 in damages; the jury found in favor of Defendants on all other claims presented, including Nelson's claim of employment discrimination. Thereafter, the trial court granted Defendants' motion for judgment notwithstanding the verdict (JNOV) and entered final judgment in favor of Defendants on all claims. Nelson appeals the judgment, alleging that the court erred by: (1) excluding Nelson's proffered rebuttal evidence; (2) improperly instructing the jury regarding the elements of a sexual harassment claim and rejecting Nelson's proposed jury instructions; (3) granting Defendants' motion for JNOV; and (4) denying Nelson's motion for a new trial or to amend the judgment to increase the damage award for her NIED claim. For the reasons set forth below, we vacate the judgment and remand for a new trial on Nelson's claims of employment discrimination as well as negligent and intentional infliction of emotional distress. In light of our disposition, we need not address Nelson's claim that the trial court erred in denying her motion for a new trial or to amend the judgment.

I. BACKGROUND

In August 1992, Nelson was hired by the University of Hawai`i at Manoa (the University) as an assistant professor in the Department of Health, Physical Education, and Recreation (HPER) of the College of Education. Nelson alleged that she was subjected to discriminatory treatment and harassment based on her gender throughout her employment, but that problems with Dr. Ho, the chair of HPER, and Dr. Buxton, a fellow faculty member, escalated in 1994. At that time, Nelson also began experiencing seizures, allegedly as a result of stress. Although her contract was renewed for an additional year, Nelson claimed that the discriminatory treatment continued and that the University failed to provide reasonable accommodations for her disability.

After attempting to informally resolve the issues within HPER, Nelson filed a formal complaint on February 3, 1995 with the University's Equal Employment Office (EEO), alleging disability discrimination and sexual harassment. She filed a separate complaint with the University's EEO on May 16, 1995, alleging retaliation triggered by the filing of her initial complaint. Nelson's complaints were denied by the University on the basis of insufficient evidence, as were her appeals. Nelson filed a charge of discrimination with the Hawai`i Civil Rights Commission (HCRC) on July 7, 1995 and received a right to sue letter from the HCRC on October 16, 1995. She also filed a complaint with the United States Equal Employment Opportunity Commission (EEOC), and the EEOC issued a right to sue letter on October 11, 1995.

On January 4, 1996, while still employed as an assistant professor, Nelson filed a complaint in the first circuit court against the University, Dr. Buxton, and Dr. Ho, which included claims of: (1) employment discrimination, under Hawai`i Revised Statutes (HRS) § 378-2 (Supp.1994); (2) violations of her constitutional rights;¹ (3) violation of public policy; (4) negligent retention of Dr. Buxton; and (5) negligent and intentional infliction of emotional distress. Nelson sought general, special, and punitive damages, declaratory and injunctive relief, and attorney's fees.

In the spring of 1996, after she filed suit, Nelson's annual contract was not renewed, and her employment terminated at the end of May 1997. Although Nelson filed a formal grievance with the University, alleging ongoing discrimination and retaliation, she did not file a separate charge of discrimination with the EEOC or the HCRC based on the nonrenewal of her contract in 1996. Nelson did not move to amend her complaint to include the nonrenewal of her contract as a specific incident of discriminatory treatment or to include a separate claim for relief based on the nonrenewal.

On October 21, 1998, Defendants filed a motion for judgment on the pleadings and summary judgment. On November 18, 1998, then-circuit court judge, the Honorable Kevin S.C. Chang, granted Defendants' motion in part, dismissing with prejudice Nelson's claims for constitutional violations, violation of public policy, negligent retention, and injunctive relief. The circuit court denied Defendants' motion with respect to all other claims without prejudice to a motion for directed verdict at trial. Consequently, the following claims proceeded to trial: (1) disability discrimination, in violation of HRS § 378-2(1)(A); (2) sex discrimination/sexual harassment, in violation of HRS § 378-2(1)(A); (3) unlawful retaliation, in violation of HRS § 378-2(2); (4) invasion of privacy; (5) negligent infliction of emotional distress (NIED); and (6) intentional infliction of emotional distress (IIED).

A. Motion in Limine

On November 25, 1998, Defendants filed a motion in limine to exclude "any reference by [Nelson] that the nonrenewal of her contract was due in any way to retaliation or discrimination." In their motion, Defendants argued that the nonrenewal of her contract was not an issue in this case because (1) Nelson's failure to file a charge of discrimination with the EEOC or the HCRC, based upon the nonrenewal, precluded the court from considering the nonrenewal as part of the discrimination claim and (2) Nelson had not stated a claim for wrongful termination. At the hearing on the motion, Nelson argued that the nonrenewal of her contract was the result of the ongoing sex and disability discrimination and retaliation during her tenure at the University. Nelson maintained that she suffered emotional distress as a result of the discrimination and that the Defendants failed to provide reasonable accommodations for her disability, which eventually affected her ability to perform her job. Thus, Nelson argued that the nonrenewal of her contract was relevant to the discrimination and emotional distress claims as well as the damages resulting from those claims. The trial court granted Defendants' motion, stating as follows:

Defendant[s'] motion in limine is granted in relation to, and only in relation to, the fact that it is not a cause of action; in other words, that their non-renewal of the contract is not a cause of action in relation to sexual discrimination or retaliation.

Now, that's a very fine ruling in the sense that I am not saying ... that you're precluded from bringing up, as [the defense] has conceded, any evidence relating to the way your client was treated throughout her tenure at the university, and that obviously is admissible, but the renewal process is precluded.²

B. Evidence at Trial

Testimony adduced at trial, relevant to Nelson's employment discrimination and emotional distress claims, included, inter alia, the following:

Nelson testified that, prior to accepting the position of assistant professor, she disclosed that she: (1) suffered from epilepsy; (2) had undergone brain surgery two years earlier, after which she had been free from seizures; and (3) was able to perform her duties. Nelson claimed that, although Drs. Ho and Buxton made sexually offensive remarks, jokes, and innuendos and exhibited hostility toward women throughout the time she was employed, she stated that they did not make sexual advances toward her. For example, Nelson testified that Dr. Ho made repeated comments about how living in Hawai`i required two incomes and how she needed a man in her life. According to Nelson, Dr. Ho also suggested that she should go to Chinatown and find an old Chinese gentleman to take care of her. Since her employment in 1992, Nelson had participated in a research project on Moloka`i coordinated by Dr. Ho and claimed that Dr. Ho treated her differently from other male professors on the research team. For example, Nelson claimed that she encountered difficulties in obtaining material from Dr. Ho that was necessary for her to evaluate data for publication.

With respect to Dr. Buxton, Nelson testified that he repeatedly made offensive and degrading comments to her and about women in general. For example, Nelson claimed that, when she was arranging books and files in her new office at the University, Dr. Buxton, whose office was next to hers, remarked, "That's how we like to see women around here on their knees and begging." Ron Hetzler, another HPER faculty member at the time, testified that he recalled Dr. Buxton making such a comment and that it "didn't seem appropriate." Dr. Buxton admitted telling Nelson that it was good to see her down on her knees...