California Legal Team

 

S.C. No. 23505





IN THE SUPREME COURT OF THE STATE OF HAWAII





LELAND GONSALVES,



Plaintiff,

Appellee and

Cross-Appellant,



vs.



NISSAN MOTOR CORPORATION IN HAWAII, LTD., INFINITI MOTOR SALES, INC.,

et al.,



Defendants,

Appellants and

Cross-Appellees.





CIVIL CASE NO. 98-4827 (VSM) (Other Civil Action)





FIRST CIRCUIT COURT



HON. VICTORIA S. MARKS,

Judge





BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICUS CURIAE







C. GREGORY STEWART 

General Counsel



GWENDOLYN YOUNG REAMS

Associate General Counsel



VINCENT J. BLACKWOOD

Assistant General Counsel



PAUL D. RAMSHAW

Attorney



U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

1801 L Street, N.W., Room 7816

Washington, DC  20507

(202) 663-473







TABLE OF CONTENTS





INTEREST 1



STATEMENT OF THE ISSUE 2



STATEMENT OF THE CASE 3



SUMMARY OF ARGUMENT 4



ARGUMENT 4



CONCLUSION 10



CERTIFICATE OF SERVICE 11



S.C. No. 23505







IN THE SUPREME COURT OF THE STATE OF HAWAII





LELAND GONSALVES,



Plaintiff-Appellee, Cross-Appellant,



vs.



NISSAN MOTOR CORPORATION IN HAWAII, LTD.;

INFINITI MOTOR SALES, INC.; et al.,



Defendants-Appellants, Cross-Appellees.









ON APPEAL FROM THE FIRST CIRCUIT COURT







BRIEF OF EQUAL EMPLOYMENT OPPORTUNITY COMMISSION

AS AMICUS CURIAE





STATEMENT OF INTEREST



The Equal Employment Opportunity Commission is the agency established

by Congress to administer, interpret and enforce Title VII of the

Civil Rights Act of 1964, 42 U.S.C. � 2000e et seq., which prohibits

sex discrimination, including sexual harassment, in the workplace.

Employers play an important role in achieving the objectives of the

statute.  They have a legal obligation to ensure compliance with Title

VII in their workplaces, and they face significant financial liability

if they fail to fulfill that obligation.



In this action an employer has been ordered to pay millions in damages to

a former supervisory employee who was discharged after an investigation

of claims of sexual harassment by one of his subordinate employees.

These damages were awarded by a jury which was not fully informed of

defendants' legal duty to promptly and effectively address complaints of

sexual harassment and which was instructed that it could find defendants

liable for discriminating against the plaintiff if it believed that

defendants' investigation was less than �fair and thorough.�  These

instructions permitted the jury to award substantial damages against an

employer that was discharging in good faith its legal duty to address

complaints of sexual harassment.  Because the Commission is concerned

that, if allowed to stand, this judgment will deter other employers

from fulfilling their role in ensuring compliance with Title VII,

we offer our views.



STATEMENT OF THE ISSUE<1>



Whether the trial court erred by instructing the jury that it could find

defendants liable of sex discrimination if it decided that defendants'

investigation of allegations of sexual harassment by the plaintiff was

not �fair and thorough.�



STATEMENT OF THE CASE



After Neldine Torres complained that her supervisor, Leland Gonsalves,

was sexually harassing her, her employers conducted an internal

investigation and then hired an outside expert to conduct an independent

investigation.  Based on the results of these investigations, defendants

concluded that Gonsalves sexually harassed Torres, retaliated against

her for complaining, and behaved inappropriately towards some female

customers.  When defendants fired Gonsalves, he instituted this lawsuit.

Gonsalves alleges, inter alia, that his discharge constituted unlawful

sex discrimination and retaliation under H.R.S. chh. 368 & 378.

In response to this allegation, defendants asserted that they fired

Gonsalves because they believed he engaged in sexual harassment and

retaliation, and not because of his sex or his complaint about Torres.

At trial, Gonsalves contended that defendants disciplined him too

quickly (because, e.g., they had not yet received a final report from

the outside expert) and too harshly (because, e.g., they normally used

progressive discipline).  In response defendants tried to introduce

the EEOC guidelines on sexual harassment and requested an instruction

informing the jury it could consider them.  The trial court would not

allow the guidelines to be placed in evidence.  Defendants also asked

the trial court to warn the jury not to second-guess their decision to

fire Gonsalves, but the trial court rejected this proposed instruction.

Instead, the court instructed the jury that it could find defendants

liable for sex discrimination if it deemed their investigations of

Torres's allegations less than �fair and thorough.�  The court failed

to inform the jury that defendants had a legal duty to effectively

respond to complaints of sexual harassment.



SUMMARY OF ARGUMENT



The trial court deprived defendants of a fair opportunity to defend

themselves against plaintiff's sex discrimination and retaliation claims

by, among other things, permitting the jury to find for the plaintiff

if it believed defendants' investigations of the allegations of sexual

harassment were not �fair and thorough.�  This error, if not corrected,

will tend to chill employers from playing the significant role assigned

them in federal and state law to ensure compliance with those laws in

the workplace.



ARGUMENT



In instructing the jury on plaintiff's sex-discrimination claim,

the trial court properly directed the jury to focus on defendants'

motivation for firing plaintiff.  The trial court erred, however, when it

rejected the defendants' proffered instruction warning the jurors not to

second-guess defendants' business judgment, and instead instructed the

jurors that they could find defendants liable for sex discrimination

if they decided that defendants' investigation of plaintiff's conduct

was less than �fair and thorough.�



When an employee challenges a decision as discriminatory and the employer

articulates a legitimate business reason for it, the employee bears the

burden of proving that the employer's stated reason is pretextual.

See, e.g., Furukawa v. Honolulu Zoological Society, 85 Haw. 7,

12 (Haw. 1997).  It is not the jury's role ��to second-guess the

wisdom of an employer's decisions as long as the decisions are not

[discriminatorily] motivated.'� Chapman v. AI Transport, 2000 WL

1459447, *12 (11th Cir. Oct. 2, 2000) (en banc) (quoting Alexander

v. Fulton County, Ga., 207 F.3d 1303, 1341 (11th Cir. 2000)).  See also

Kendrick v. Penske Transportation Serv., Inc., 220 F.3d 1220, 1233

(10th Cir. 2000) (same).<2>  A jury is therefore not permitted to

find the employer liable for discrimination solely because the jury,

putting itself in the employer's shoes, disagrees with the action the

employer took.  See, e.g., Smith v. Leggett Wire Co., 220 F.3d 752,

763 (6th Cir. 2000) (reversing judgment for plaintiff in discrimination

action where jury appeared to second-guess employer's decision to fire

plaintiff for misconduct, stating that �it is inappropriate for the

judiciary to substitute its judgment for that of management�).

Accordingly, a plaintiff cannot normally establish pretext simply by

offering evidence that the employer exercised poor business judgment,

or even evidence that the employer was mistaken in believing there

was misconduct or poor performance.  See, e.g., McKnight v. Kimberly

Clark Corp., 149 F.3d 1125, 1129 (10th Cir. 1998) (�An articulated

motivating reason is not converted into pretext merely because, with

the benefit of hindsight, it turned out to be poor business judgment.

The test is good faith belief.�); Abioye v. Sundstrand Corp., 164 F.3d

364, 368 (7th Cir. 1998) (same).  The issue is thus not the quality

of defendants' business judgment, or whether defendants acted wisely

or negligently.  The issue is whether defendants' decision to fire

plaintiff was motivated by discriminatory intent on their part or

by their good-faith belief that plaintiff had committed misconduct

meriting termination.  See, e.g., Waggoner v. City of Garland, Texas,

987 F.2d 1160, 1165 (5th Cir. 1993) (�The real issue is whether the

employer reasonably believed the [complaining] employee's allegation

[of misconduct by the plaintiff] . . . and whether the decision to

discharge the [plaintiff] was based on that belief.�).



Here the trial court not only rejected defendants' proffered instruction

warning against second-guessing; it also instructed the jury that

one of the two issues it �must decide� was �[w]hether [defendants']

investigation of Plaintiff Leland Gonsalves' conduct was fair and

thorough.�  Since this instruction invited the jurors to substitute

their judgment for that of defendant and to decide whether they viewed

defendants' actions as �fair,� it was error.  See Chapman, 2000 WL

at *13 (�We are not in the business of adjudging whether employment

decisions are prudent or fair.�); Brocklehurst v. PPG Indus., Inc., 123

F.3d 890, 898 (6th Cir. 1997) (�The district court erred in instructing

the jury . . . that it may consider the �fairness' of [the employer's]

decision to discharge [plaintiff] when assessing the credibility of

the reasons offered in support of that decision.�); Manzer v. Diamond

Shamrock Chems. Co., 29 F.3d 1078, 1984-85 (6th Cir. 1994) (��just

cause' arguments . . . must not be allowed to creep into an employment

discrimination action�).



If Gonsalves had evidence that defendant's actions were grossly

negligent or strikingly unreasonable, that evidence would be admissible

to attack defendants' credibility in claiming they fired him for the

reasons they stated (on the theory that prudent business persons do not

ordinarily act in such a manner).  But even evidence of this degree of

recklessness should be considered only insofar as it leads the jury to

question the credibility of defendants' explanation for the termination.

Hollins v. FNMA, 2000 WL 1511750, *6 (D.C. Oct. 12, 2000) (not yet

released for publication) (rejecting plaintiff's attack on the quality

of employer's investigation as irrelevant to credibility of employer's

articulated reason for firing plaintiff).  The court's instructions

in this case failed to convey any such limitation to the jury, thus

inviting them to find the defendants liable for discrimination if it

found their treatment of plaintiff unfair.



The trial court compounded its error by limiting defendants'

ability to introduce evidence establishing that they had a legal

duty to investigate allegations of sexual harassment and, should the

investigation reveal illegal harassment, to discipline the offending

employee in a manner calculated to stop his offensive conduct and to

deter such conduct by their other employees.  The jury should not have

been permitted to assess defendants' alleged �rush to judgment� without

knowing that defendants were legally obligated to act �promptly�

to investigate and halt any harassment, and that they could have

been found liable to Torres had they failed to do so.  See Faragher

v. City of Boca Raton, 524 U.S. 775, 806 (1998) (to �implement clear

statutory policy,� courts should �recognize the employer's affirmative

obligation to prevent violations and give credit . . . to employers

who make reasonable efforts to discharge their duty�).  For the same

reasons, the jury should not have been allowed to assess defendants'

investigation without being familiar with the Commission's guidelines

on how employers should conduct such investigations.



It is particularly troublesome for a court to allow a jury to

second-guess the conduct of an employer's investigation and the

discipline the employer chooses to impose when the investigation and

the discipline constituted the employer's attempt to comply with its

obligation under Title VII and the Hawaii Fair Employment Practices Law

(�HFEPL�) to take measures to combat sexual harassment.  Title VII relies

heavily on voluntary compliance by employers to achieve the statute's

goal of equal employment opportunities.  Stockley v. AT&T Information

Systems, Inc., 687 F. Supp. 764, 769 (E.D.N.Y. 1988) (�private

compliance and enforcement procedures [by employers] are essential to

the success of EEOC's efforts to eliminate employment discrimination�).

In particular, employers are directed to take all reasonable steps to

prevent sexual harassment, and to correct it promptly when it occurs.

Faragher, 524 U.S. at 806 (employers have an �affirmative obligation

to prevent [sexual harassment]�); Garziano v. E.I. DuPont de Nemours &

Co., 818 F.2d 380, 388 (5th Cir. 1987) (same).  A similar obligation is

imposed on employers under Hawaii law.  See H.A.R. � 12-46-109(c)-(d)

(employer is liable for sexual harassment under certain circumstances

if it �fails to take immediate and appropriate corrective action�).

Vigorous actions by employers to deter and punish sexual harassment

are essential if the legislative purpose of eliminating harassment is

to be achieved.



If the judgment in this case is allowed to stand, it will have a chilling

effect on employers attempting to respond effectively to complaints of

sexual harassment.  The enforcement of Title VII would be significantly

impeded if employers were to moderate their disciplinary actions unduly

in order to avoid liability.  Cf. Cotran v. Rollins Hudig Hall Int'l,

Inc., 948 P.2d 412, 420 (Cal. 1998) (holding, in context of wrongful

discharge action, that �a standard permitting juries to reexamine the

factual basis for the decision to terminate for misconduct � typically

gathered under the exigencies of the workaday world and without benefit

of the slow-moving machinery of a contested trial � dampens an employer's

willingness to act�).



CONCLUSION



For the foregoing reasons, the Commission urges this Court to reverse

the judgment for plaintiff on his sex-discrimination claim.





Respectfully submitted,







DAPHNE BARBEE-WOOTEN

U.S. Equal Employment

Opportunity Commission 

300 Ala Moana Blvd., Room 7-127

Honolulu, Hawaii  96850

(808) 541-3121





CERTIFICATE OF SERVICE





I hereby certify that two copies of the foregoing brief were served by

mailing them on this date first class, postage prepaid, to the following

counsel of record:



Jerry M. Hiatt, Esq.

Bays, Deaver, Hiatt, Lung & Rose

1099 Alakea Street, 16th floor

Honolulu, Hawaii  96813



Anna M. Elento-Sneed

Pacific Tower, Suite 2200

1001 Bishop Street

Honolulu, Hawaii  96813









Daphne Barbee-Wooten

Attorney



U.S. EQUAL EMPLOYMENT OPPORTUNITY

COMMISSION

300 Ala Moana Blvd., Room 7-127

Honolulu, HI  96850

(808) 541-3121





November ____, 2000   



TABLE OF AUTHORITIES 



FEDERAL CASES 



Abioye v. Sundstrand Corp., 164 F.3d 364 (7th Cir. 1998)  6



Alexander v. Fulton County, Ga., 207 F.3d 1303 

(11th Cir. 2000)  5



Brocklehurst v. PPG Industrial, Inc., 123 F.3d 890 

(6th Cir. 1997)  7



Chapman v. AI Transport, 2000 WL 1459447 (11th Cir. 

Oct. 2, 2000) (en banc)  5



Faragher v. City of Boca Raton, 524 U.S. 775 (1998)  8, 9



Garziano v. E.I. DuPont de Nemours & Co., 818 F.2d 380 

(5th Cir. 1987)  9



Kendrick v. Penske Transportation Service, Inc., 

220 F.3d 1220 (10th Cir. 2000)  5



Manzer v. Diamond Shamrock Chemicals Co., 29 F.3d 1078 

(6th Cir. 1994)  7



McKnight v. Kimberly Clark Corp., 149 F.3d 1125 

(10th Cir. 1998)  6



Smith v. Leggett Wire Co., 220 F.3d 752 (6th Cir. 2000)  5



Stockley v. AT&T Information Systems, Inc., 

687 F. Supp. 764 (E.D.N.Y. 1988)  8



Waggoner v. City of Garland, Texas, 987 F.2d 1160 

(5th Cir. 1993)  6



STATE CASES 



Cotran v. Rollins Hudig Hall International, Inc., 

948 P.2d 412 (Cal. 1998)  9



Furukawa v. Honolulu Zoological Society, 

85 Haw. 7 (Haw. 1997)  5



Hollins v. FNMA, 2000 WL 1511750, 6 (D.C. Oct. 12, 2000)

(not yet released for publication)  7



STATUTES AND REGULATIONS



H.R.S. � 378-2 (1)  5



H.A.R. � 12-46-109(c)-(d)  9



Title VII of the Civil Rights Act of 1964, 

42 U.S.C. � 2000e et seq.,  1



42 U.S.C. � 2000e-2(a)  5





1  The Commission takes no position on the other issues raised in this

appeal.



2  Hawaiian courts normally follow Title VII precedent in interpreting

the state's fair employment practices law unless the relevant statutory

provisions differ.  See Furukawa, 85 Haw. at 13.  The relevant statutory

provisions here do not differ in any material way.  Compare 42 U.S.C. �

2000e-2(a) with H.R.S. � 378-2 (1).



�