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                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-14-0000021
                                                              24-APR-2018
                                                              08:08 AM



           IN THE SUPREME COURT OF THE STATE OF HAWAII

                                ---o0o---


                           ARLEY H. NOZAWA,
                   Petitioner/Plaintiff-Appellant,

                                    vs.

               OPERATING ENGINEERS LOCAL UNION NO. 3,
                   Respondent/Defendant-Appellee,


                            SCWC-14-0000021

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
            (CAAP-14-0000021; CIVIL NO. 11-1-2623-10)

                             APRIL 24, 2018

 RECKTENWALD, C.J., NAKAYAMA, McKENNA, POLLACK, AND WILSON, JJ.

                OPINION OF THE COURT BY POLLACK, J.

          This case involves a claim brought by an employee

against her former employer for allegedly terminating her on the

basis of her gender.     The circuit court granted summary judgment

in favor of the employer, striking a declaration submitted in

opposition and also rejecting the employee’s own declarations as

uncorroborated, self-serving, and conclusory.          We hold that Rule
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56(e) of the Hawaii Rules of Civil Procedure does not preclude

an affidavit from being self-serving, nor does it require an

affidavit to be corroborated by independent evidence.            In

addition, unlike the employee’s declarations in this case, an

affidavit is conclusory if it expresses a conclusion without

stating the underlying facts or reaches a conclusion that is not

reasonably drawn from the underlying facts.

          We also hold that the circuit court abused its

discretion in striking a declaration submitted by the employee

that complied with the circuit court’s order allowing

supplemental briefing.     Accordingly, in light of the admissible

evidence, there was a genuine issue of material fact as to

whether the employer’s proffered reasons for the employee’s

termination were based on pretext, and thus we conclude that the

circuit court erroneously granted summary judgment in favor of

the employer.

                          I.      BACKGROUND

          Operating Engineers Local Union No. 3 (Local 3) is a

labor organization with headquarters in Alameda, California.

Local 3 operates a hiring or referral hall in accordance with

its collective bargaining agreement with signatory contractors.

Local 3 has a district office in the State of Hawaii (district

office) that is managed by the local district representative


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with the assistance of an Officer-in-Charge, who is physically

located in California.

          On September 11, 2006, Arley Nozawa was hired as an

at-will employee for the single hiring hall dispatcher position

in the district office.     As a dispatcher, Nozawa was responsible

for referring union members to employers in accordance with

Local 3’s Job Placement Regulations (JPR).         In July 2010, Dan

Reding became the Officer-in-Charge of the district office,

responsible for the hiring and firing decisions for Local 3 with

the approval of the business manager, Russell Burns.

          In January 2011, Pane Meatoga was appointed as the

district representative.      Meatoga expressed a desire to bring in

his own secretary and organizer.         At the time, the district

office’s sole organizer was Donald Gentzler, who also performed

the role of dispatcher when Nozawa was absent.          Two days after

Meatoga’s effective start date, on February 3, 2011, Nozawa

received a termination letter dated January 27, 2011.            The

termination letter read in pertinent part as follows: “I regret

to inform you that due to a reorganization and restructuring of

the Hawaii district office operations, your employment with

Operating Engineers Local Union No. 3 will be terminated as of

February 3, 2011.”    Gentzler replaced Nozawa as dispatcher

effective February 4, 2011, and remained in that position until

July 31, 2012--when he was reassigned to the organizer position.
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                             A. Circuit Court

           On October 31, 2011, after exhausting her

administrative remedies, Nozawa filed a complaint against Local

3 in the Circuit Court of the First Circuit (circuit court),

alleging inter alia that Local 3 violated Hawaii Revised

Statutes (HRS) § 378-2 by terminating her on the basis of her

gender.1   The complaint asserted that Nozawa was suddenly and

without cause terminated from her position as dispatcher by

Local 3 and immediately replaced with a male dispatcher who

received a pay raise and an increase in work hours, despite work

hours having been previously reduced for all dispatchers.              In

addition, the complaint contended that at the time of her

termination, Nozawa did not have any performance problems and

was fully capable of performing her dispatcher duties in an

exemplary manner.     Local 3 denied the allegations of gender

discrimination in its answer to Nozawa’s complaint.

           On February 12, 2013, Local 3 filed a motion for

summary judgment, which included declarations from Toni Mendes

and Reding.    Mendes identified herself as Local 3’s office

systems and job placement center coordinator and stated that her

workplace was in Sacramento, California.          Mendes declared that

     1
            The complaint set forth four counts, three of which Nozawa
voluntarily dismissed. The dismissed counts are not further addressed.




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she began closely monitoring the technical aspects of Nozawa and

other dispatchers’ work performance in late 2008.            Attached to

Mendes’ declaration was a JPR provision providing that, subject

to some exceptions, a dispatched employee who does not work at

least forty-eight hours straight is entitled to return to the

employee’s former position on the out-of-work list.2            Mendes

stated that Nozawa committed a serious dispatching error in

January 2010 when she did not properly restore an employee,

Richard Conradt, to his former place on the list in accordance

with the JPR.

           In his declaration, Reding stated that Conradt

subsequently filed an unfair labor practice claim against Local

3, which it settled by paying Conradt $19,866.40 in lost wages

and fringe benefits and $5,500 in legal fees.           Reding maintained

that no other dispatcher had ever committed an error of this

nature.   Reding further stated that he sought and received

Burns’ approval to terminate Nozawa as a result of the error,

but Eugene Soquena, the district representative at the time,

requested that Nozawa be given a last chance to improve.             Hence,

Reding continued, Nozawa was given a Final Written Warning




     2
            The out-of-work list establishes the priority in which out-of-
work union members are dispatched to available jobs.




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(Warning letter), dated April 19, 2010.          The Warning letter read

as follows:

            It has come to our attention that you continue to make
            numerous mistakes in the discharge of your duties as
            Dispatcher. Among others, key areas of deficiencies is
            your lack of a clear grasp and understanding of the Hawaii
            Job Placement Regulations (JPR). Consequently, this has
            caused you to dispatch members improperly. Additionally,
            there is an inordinate amount of registration overrides
            caused by errors. Some of these overrides used incorrect
            dates which allowed our members and others to be dispatched
            incorrectly, seriously exposing our local to potential
            legal liability. Recently, this transgression manifested
            itself in the dispatch of member Richard Conrad, Jr. We
            are still assessing the potential damage this error may
            ultimately cause.

            This will serve notice to you that any further mistakes on
            your behalf in carrying out your duties, will result in the
            immediate termination of your employment with OE3.
            Additionally, if in the course of our investigation in the
            processing of Mr. Conrad’s registration and dispatch, we
            find additional errors, you will be subject to immediate
            termination of employment.

            Mendes also stated in her declaration that, even prior

to the error involving Conradt and after the Warning letter,

Nozawa made a number of recurring errors related to registration

overrides and the placement of employees on the out-of-work

list.   According to Mendes, from late 2008 until Nozawa’s

termination, Mendes engaged in an effort to train Nozawa but she

continuously failed to fully comprehend the dispatching rules

and procedures.     As examples, Mendes attached email

correspondences between herself and Nozawa from June to August

2010 in which they discussed the timing of monthly registration

lists, an override adjustment for an employee, and the dues for

retirees.

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            Reding declared that his suggestion to Meatoga to

replace Nozawa with Gentzler was based on Gentzler’s impending

displacement as organizer and the reports of Mendes that Nozawa

continued to make dispatching errors following the Warning

letter.   Gentzler was hired in September 2007 as an organizer,

Reding stated, and he had extensive experience with the JPR and

the collective bargaining agreement and had not received any

written warnings for deficient work performance.            Reding also

explained that the increase in work hours for Gentzler was based

on a preexisting plan to return dispatchers to the forty-five-

hour week, as well as the lack of a backup dispatcher.3

            Based on these declarations, Local 3 argued that in

reorganizing the district office, it decided to terminate Nozawa

in order to retain Gentzler, an experienced dispatcher with no

history of work performance problems and a clean disciplinary

record.   Local 3 thus maintained that it had articulated

legitimate, nondiscriminatory reasons for Nozawa’s termination.

            In opposition, Nozawa averred in her declaration that

she was falsely accused of making an error regarding the

placement of Conradt and that she had followed proper protocol.

Nozawa stated that her supervisor at the time, Soquena, never
      3
            In her declaration, Mendes explained that the work hours for
dispatchers were decreased in late December 2010 due to the depressed
economy.




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informed her during her employment of any work performance

problems that he had perceived.          Soquena stopped the impending

termination because she had not made a mistake, Nozawa

explained, and she signed the Warning letter but disputed that

she had made a mistake.

          Additionally, Nozawa stated in her declaration that

she had always received excellent employment evaluations, she

did not have work performance problems when she was terminated,

and she was fully capable of performing her job at the time of

termination.   Pointing to the termination letter she received,

Nozawa attested that her termination was the result of an

alleged reorganization and restructuring, not disciplinary

action, and that she was terminated without cause.           Nozawa also

declared that Gentzler had little experience as a dispatcher and

that when he replaced her, his work hours increased at an

increased pay.

          Nozawa argued in her opposition that she received no

further write-ups or warnings following the Warning letter and

that, based on the record, there were issues of material fact




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related to her termination that required denial of Local 3’s

motion.4

            Local 3 replied, attaching a supplemental declaration

from Mendes stating that she supervised the technical aspects of

Nozawa’s work performance and it was her honest assessment that

Nozawa had performance issues.        Mendes disputed that Nozawa had

always received excellent employment evaluations, that she did

not have performance problems and was fully capable of

performing her job at the time of termination, and that she was

falsely accused of the error involving Conradt.

            Local 3 argued in its reply that Nozawa provided

“uncorroborated, self-serving, conclusory statements” that did

not satisfy the requirements of Hawaii Rules of Civil Procedure

(HRCP) Rule 56(e) and were insufficient to defeat summary

judgment.    Local 3 also contended that Nozawa was not competent

to testify to matters related to her own work performance and

qualifications.

            Additionally, Local 3 submitted that Nozawa’s

termination was based on its honest belief that reorganization

was the most practical method of accommodating Meatoga’s desire


      4
            Nozawa later argued that the email exchanges between herself and
Mendes that occurred after she received the Warning letter did not show that
she had made mistakes.




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to hire a new organizer.       Local 3 added that there was no

evidence anyone other than Nozawa committed the error involving

Conradt and that, in any event, Nozawa was not terminated

because of this error.      Local 3 also asserted that the fact that

Nozawa did not receive a further write-up after the Warning

letter did not establish pretext because Nozawa was an at-will

employee who could be terminated at any time, “for any reason,

fair or unfair, with or without notice or warning.”

            After the initial hearing on the motion for summary

judgment,5 Local 3 moved for leave to submit supplemental

briefing, contending that it was necessary for the court to

receive documents pertinent to certain declarations made by

Nozawa.   The circuit court granted the motion and issued an

order, stating that Local 3 “has leave to file a Supplemental

Memorandum in Support of its Motion” and Nozawa “may file a

Supplemental Memorandum in Opposition addressing Defendant’s

Supplemental Memorandum.”

            Local 3’s supplemental reply, which included exhibits

and a declaration from Mendes,6 argued that Nozawa had committed


     5
            The Honorable Karen T. Nakasone presided over the summary
judgment proceedings.
      6
            Mendes averred that, based on the computer printouts attached to
her declaration, she had an honest and sincere belief that Nozawa did in fact
enter incorrect registration dates for Conradt.




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placement errors involving Conradt, that Nozawa made subsequent

errors, and that Reding recommended that Nozawa be terminated as

part of a staffing reorganization.        Local 3 maintained that,

based on these facts, there was no evidence of dishonesty or

pretext and that an employer’s belief that an employee committed

misconduct is a legitimate, nondiscriminatory reason for

termination.

          Nozawa filed a supplemental opposition supported by

her declaration and a declaration from Local 3’s former

treasurer, William Mahoe (Mahoe Declaration).          In his

declaration, Mahoe stated that he was appointed treasurer of

Local 3 in January 2009.      He averred that, while serving as

treasurer, he attended union meetings in 2009 and 2010 at which

Burns, Reding, and other Local 3 officers were present.            Mahoe

stated that at these meetings the officers of Local 3 discussed

replacing women dispatchers with men, to which he objected.

Mahoe also stated that he wanted Nozawa to remain in her

position as dispatcher; he felt that she was doing a good job.

Mahoe indicated that he resigned from Local 3 on January 23,

2011, and that he understood Nozawa was replaced by a male

dispatcher shortly thereafter.

          In her declaration, Nozawa explained that Conradt

constantly worked jobs of short duration and that, in accordance

with the JPR, she placed him at the bottom of the out-of-work
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list until he provided the necessary paperwork showing that he

was laid off prior to working forty-eight hours straight.             When

Conradt provided the required documentation, Nozawa averred, she

would perform an override to return him to his former position

on the list after obtaining the requisite authorization code

from Mendes.   Nozawa argued in her supplemental opposition that

the alleged mistakes asserted by Local 3 were merely a pretext

for gender discrimination.

          During Nozawa’s argument at a second hearing on the

motion for summary judgment, the circuit court raised sua sponte

the propriety of the submission of the Mahoe Declaration.             The

court stated that it seemed to go beyond the scope of the

supplemental briefing, which the court believed “was just for

the purposes of the false accusation.”         Nozawa explained that

she was not able to obtain the Mahoe Declaration when she

initially filed her opposition and that, in any event, the Mahoe

Declaration was properly before the court as she should be

permitted to respond to Local 3’s supplemental reply.

          Local 3 asserted that Nozawa’s supplemental opposition

raised entirely new theories, the theories did not relate to her

claim that she was falsely accused of the error involving

Conradt, and the supplemental opposition exceeded the scope of

the court’s order.    The court concurred in Local 3’s assessment

but upon reviewing the order acknowledged that the terms of the
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order had not limited the supplemental briefing to the “false

accusation.”     The circuit court nonetheless indicated that its

recollection was that Local 3 specifically sought to supplement

its briefing as to Nozawa’s claim that she was falsely accused

of the error involving Conradt.        Over Nozawa’s objection, the

court struck the Mahoe Declaration as beyond the scope of the

limited supplemental briefing and supplemental response.7

             The circuit court then considered Nozawa’s

declarations and found that Nozawa’s statement that she was

falsely accused of the error involving Conradt was

unsubstantiated.     The court also determined that the evidence

adduced by Nozawa consisted of “uncorroborated, self-serving,

conclusory statements” that were not sufficient to establish

genuine issues of material fact under the summary judgment

standard.8    Ruling that the declarations lacked the competent

evidence required under HRCP Rule 56 to show pretext, the court

granted Local 3’s motion for summary judgment.

             The circuit court entered its final judgment on

October 18, 2013.     Nozawa filed a motion for reconsideration, in


     7
            The court also denied Nozawa’s request to supplement her briefing
and to allow Local 3 to respond.
       8
            The court cited Villiarimo v. Aloha Island Air, Inc., 281 F.3d
1054 (9th Cir. 2002), and Hansen v. United States, 7 F.3d 137 (9th Cir.
1993).




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which she argued that the Mahoe Declaration responded to the

supplemental reply and did not go beyond the scope of the

supplemental briefing.      The court denied the motion.        Nozawa

timely filed a notice of appeal to the Intermediate Court of

Appeals (ICA) from the circuit court’s final judgment and the

order denying the motion for reconsideration.

                              B. ICA Proceedings

           In her appeal, Nozawa contended that the circuit court

(1) abused its discretion when it struck the Mahoe Declaration9

and (2) erred in granting Local 3’s motion for summary judgment.

           In a memorandum opinion, the ICA affirmed the circuit

court’s final judgment.10      First, the ICA found that the

supplemental briefing was limited to Nozawa’s claim that she was

falsely accused in the Conradt incident, that the Mahoe

Declaration exceeded this scope, and that the circuit court

accordingly did not abuse its discretion in striking the Mahoe

Declaration.

           Second, the ICA determined that Local 3 articulated

legitimate, nondiscriminatory reasons for terminating Nozawa and


     9
            Nozawa alternatively contended that the circuit court abused its
discretion in denying her request to supplement her briefing.
      10
            The ICA’s memorandum opinion can be found at Nozawa v. Operating
Engineers Local Union No. 3, NO. CAAP-14-0000021, 2017 WL 2670800 (Haw. App.
June 21, 2017).




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that the burden shifted to Nozawa to demonstrate that Local 3’s

proffered reasons were pretextual.        The ICA found that the only

proper evidence that Nozawa provided to support her gender

discrimination claim were her declarations, which included the

averment that she always received excellent employment

evaluations.   The ICA noted that, while Nozawa stated that she

signed the Warning letter but disputed that she had made a

mistake, Nozawa did not provide documentation or further

details.   The ICA further found that Nozawa did not contest that

a staff reorganization occurred after Meatoga’s appointment and

Nozawa did not provide evidence that she was more qualified for

the dispatcher position than Gentzler.         Thus, the ICA concluded

that Nozawa failed to show that there was a genuine issue of

material fact as to whether Local 3’s proffered reasons for her

termination were pretextual.

                    II.       STANDARD OF REVIEW

           This court reviews an award of summary judgment de

novo under the same standard applied by the lower court.            Adams

v. CDM Media USA, Inc., 135 Hawaii 1, 12, 346 P.3d 70, 81 (2015)

(citing Shoppe v. Gucci Am., Inc., 94 Hawaii 368, 376, 14 P.3d

1049, 1057 (2000)).




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                        III.      DISCUSSION

          On certiorari, Nozawa presents two questions for

review: (1) whether the ICA erred in failing to view the

evidence in the light most favorable to her as the non-moving

party in the summary judgment proceeding and (2) whether the ICA

erred in failing to consider her declarations and the

declaration of Mahoe.

          In response, Local 3 contends that the ICA considered

Nozawa’s declarations, neither of which satisfied the

requirements of HRCP Rule 56(e); the circuit court properly

struck the Mahoe Declaration, which exceeded the scope of the

supplemental briefing; and the ICA viewed the evidence in the

light most favorable to Nozawa, who failed to dispute the

staffing reorganization, Gentzler’s work performance, and his

knowledge about the collective bargaining agreement and the JPR.

  A. The Circuit Court And The ICA Erred In Not According The
              Proper Weight To Nozawa’s Declarations

          Pursuant to HRCP Rule 56(e) (2000), affidavits

supporting or opposing a motion for summary judgment “shall be

made on personal knowledge, shall set forth such facts as would

be admissible in evidence, and shall show affirmatively that the

affiant is competent to testify to the matters stated therein.”

Thus, affidavits that state ultimate or conclusory facts cannot

be used in support of or in opposition to a motion for summary


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judgment.   GECC Fin. Corp. v. Jaffarian, 79 Hawaii 516, 525, 904

P.2d 530, 539 (App. 1995).

            In this case, Nozawa’s declarations included

statements that related to her general work performance as a

dispatcher and the specific incident involving Conradt that

resulted in the Warning letter.       The circuit court gave no

weight to either category of Nozawa’s statements, while the ICA

gave no weight to the latter.

                1. Nozawa’s general work performance

            We turn first to Nozawa’s statements related to her

general work performance as a dispatcher.         In her first

declaration, Nozawa stated that she always received excellent

employment evaluations and was not informed by Soquena of any

work performance concerns.      Nozawa also stated that she did not

have work performance problems and was fully capable of

performing her job at the time she was terminated.

Additionally, Nozawa pointed to the termination letter she

received, which informed her that she was terminated not because

of any disciplinary action but based on reasons related to

reorganization and restructuring.

            The circuit court rejected Nozawa’s declarations,

finding that Nozawa’s statements did not satisfy HRCP Rule 56(e)

because they were uncorroborated, self-serving, and conclusory.


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The circuit court’s ruling indicates that it misconstrued the

standard for affidavits or declarations supporting or opposing a

summary judgment motion.       HRCP Rule 56(e) provides that

affidavits shall set forth facts based on personal knowledge.

Thus, an affidavit by its nature includes an affiant’s own

perception of the matter.       See Commentary to Hawaii Rules of

Evidence (HRE) Rule 602 (1993) (“‘Personal knowledge,’ for

purposes of [HRE Rule 602], means that the witness perceived the

event about which [the witness] testifies and that [the witness]

has a present recollection of that perception.”).

           The circuit court’s rejection of Nozawa’s statements

as “self-serving” is thus misplaced.         HRCP Rule 56(e) does not

preclude an affidavit from being self-serving.           Indeed, as the

Eleventh Circuit recently observed, “most affidavits submitted

[in response to a summary judgment motion] are self-serving.”

United States v. Stein, 881 F.3d 853, 857 (11th Cir. 2018)

(alteration in original) (quoting Payne v. Pauley, 337 F.3d 767,

772 (7th Cir. 2003)) (“[N]othing in Rule 56 (or, for that

matter, in the Federal Rules of Civil Procedure) prohibits an

affidavit from being self-serving.”).11         Thus, a party’s self-

     11
             Where a federal rule of procedure is substantially similar to a
Hawaii rule of procedure, this court may look to federal caselaw for
guidance. Stallard v. Consol. Maui, Inc., 103 Hawaii 468, 475, 83 P.3d 731,
738 (2004).




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serving statements that otherwise comply with HRCP Rule 56(e)

can be utilized to defeat summary judgment.          Id.; Price v. Time,

Inc., 416 F.3d 1327, 1345, modified on other grounds on denial

of reh’g, 425 F.3d 1292 (11th Cir. 2005) (“Courts routinely and

properly deny summary judgment on the basis of a party’s sworn

testimony even though it is self-serving.”).

           Additionally, HRCP Rule 56(e) does not require a

statement in an affidavit to be corroborated in order to be a

qualifying affidavit under the rule.        HRCP Rule 56(e); Stein,

881 F.3d at 858 (“Nor does Rule 56 require that an otherwise

admissible affidavit be corroborated by independent evidence.”).

As the Stein court observed, “If corroboration is needed, then

that requirement must come from a source other than Rule 56.”

Stein, 881 F.3d at 858; Strickland v. Norfolk S. Ry. Co., 692

F.3d 1151, 1160 (11th Cir. 2012) (“[E]ven in the absence of

collaborative evidence, a plaintiff’s own testimony may be

sufficient to withstand summary judgment.” (citation omitted)).

Indeed, a requirement that an affidavit be corroborated would

establish a higher standard for admissibility than that required

for the introduction of evidence at trial.         Nor has this court

ever held that an uncorroborated statement by a party to the

litigation is insufficient to raise a dispute as to a material

fact.   See, e.g., Lales v. Wholesale Motors Co., 133 Hawaii 332,



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357-58, 328 P.3d 341, 366-67 (2014) (holding that the

plaintiff’s declaration presented sufficient evidence to raise

an issue of material fact as to whether his termination was

based on pretext); Acoba v. Gen. Tire, Inc., 92 Hawaii 1, 14-15,

986 P.2d 288, 301-02 (1999) (concluding that an affidavit--

submitted in opposition--alone was sufficient to defeat the

defendant’s motion for summary judgment).

          Finally, the circuit court misapprehended what

constitutes a conclusory statement in the context of HRCP Rule

56(e).   “Conclusory” is defined as “[e]xpressing a factual

inference without stating the underlying facts on which the

inference is based.”     Conclusory, Black’s Law Dictionary (10th

ed. 2014).   An “inference” in turn is “a conclusion reached by

considering other facts and deducing a logical consequence from

them.”   Inference, Black’s Law Dictionary (10th ed. 2014); see

also 23B Am. Jur. Pleading and Practice Forms § 244 (2017) (“An

inference is a deduction of fact that the jury may logically and

reasonably draw from another fact or facts found or otherwise

established in the trial.”).      Thus, when an assertion in an

affidavit expresses an inference without setting forth the

underlying facts on which the conclusion is based or states a

conclusion that is not reasonably drawn from the underlying

facts, the assertion is considered conclusory and cannot be


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utilized in support of or against a motion for summary judgment.

See Conclusory, Inference; see also Lujan v. Nat’l Wildlife

Fed’n, 497 U.S. 871, 888 (1990) (noting that the object of the

requirement in Federal Rules of Civil Procedure Rule 56(e) that

affidavits “set forth specific facts showing that there is a

genuine issue for trial” is not to make permissible conclusory

allegations in an affidavit).        On the other hand, an inference

within an affidavit that is based on stated facts from which the

conclusion may reasonably be drawn is not conclusory and may be

used to support or oppose a motion for summary judgment.

            To be sure, the underlying facts and the inference

must be based on personal knowledge and otherwise admissible in

evidence.    HRCP Rule 56(e).     Inferences that amount to opinions

thus must satisfy relevant evidentiary rules that would apply

were the evidence offered through witness testimony.            Lay

opinions must be both “rationally based on the perception of

the” affiant and “helpful to a clear understanding of the

[affiant’s] testimony or the determination of a fact in issue.”

HRE Rule 701 (1993).      An affiant generally may “give an opinion

on an ultimate fact involved in the case” when such an opinion

is properly supported by facts personally perceived.12            See


     12
            The Commentary to HRE Rule 704 clarifies that courts are
empowered to exclude opinions on “ultimate facts” that are not helpful to the

                                                             (continued . . .)

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Samson v. Nahulu, 136 Hawaii 415, 429, 363 P.3d 263, 277 (2015)

(citing HRE Rule 704); HRE Rule 701.         But the affiant “may not

give opinions on questions of law as that would amount to legal

conclusions.”13     Nahulu, 136 Hawaii at 429, 363 P.3d at 277

(citing HRE Rule 704).      Indeed, any legal conclusions drawn by

the affiant are not admissible evidence, regardless of whether

they are couched as the affiant’s opinion.          Pulawa v. GTE

Hawaiian Tel, 112 Hawaii 3, 15, 143 P.3d 1205, 1217 (2006).

            The statements in Nozawa’s declarations that she

always received excellent employment evaluations and that she

was not informed by Soquena of any work performance issues were

specific, factual information personally known to Nozawa.              As

additional support of her assessment regarding her work

performance, Nozawa highlighted that the termination letter she


(. . . continued)

trier of fact under HRE Rules 701 and 702, as well as those that are
“prejudicial, confusing, misleading, unnecessarily cumulative, or lacking in
trustworthiness” under HRE Rule 403. Commentary to HRE Rule 704 (1993).
Opinions that “merely tell the jury what result to reach” are inadmissible
under these provisions. Id.; accord State v. Pinero, 70 Haw. 509, 520–21,
778 P.2d 704, 712 (1989) (excluding expert testimony that death was homicide
and not accident in murder trial as beyond the scope of admissible opinion).
      13
            The Commentary to HRE Rule 704 illustrates the distinction
between an opinion on an ultimate fact and a statement of law. “[T]he
question, ‘Did T have the capacity to make a will?’ would be excluded, while
the question, ‘Did T have sufficient mental capacity to know the nature and
extent of his property and the natural objects of his bounty and to formulate
a rational scheme of distribution?’ would be allowed.” Commentary to HRE
Rule 704.




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received stated her discharge was the result of reorganization--

not disciplinary action.       In light of these statements, Nozawa

had a factual basis to reasonably infer that she did not have

work performance problems and was fully capable of performing

her duties at the time of termination.14         To the extent these

conclusions amounted to opinions, they were rationally based on

Nozawa’s personal perceptions and may have been helpful to a

clear understanding of her declaration and a fact at issue,

i.e., whether Local 3’s claim that Nozawa was terminated for

deficient performance was a pretext for discrimination.15

Further, the statements did not amount to legal conclusions

because they were essentially factual in nature and did not

attempt to apply a legal standard.         Nozawa did not simply state,

for example, that her termination violated HRS § 378-2 or that

it was motivated by discriminatory intent, which would not have

been admissible evidence that could be considered for purposes

of summary judgment.




     14
            In the absence of a factual basis, neither an employee nor an
employer’s subjective assessment of the employee’s work performance is
admissible evidence upon which summary judgment can be based. See HRE Rule
701; HRCP Rule 56(e).
      15
            As stated, the trial court had discretion in accordance with HRE
Rules 403 and 701 to exclude statements of Nozawa’s opinion. There is no
indication the court based its ruling on these grounds.




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           Because Nozawa did not express a conclusion without

stating the underlying facts or reach a conclusion that was not

reasonably drawn from the underlying facts, see Conclusory,

Inference, these statements were not conclusory and were in

compliance with HRCP Rule 56(e).          And to the extent that some of

Nozawa’s statements were opinions, they were not clearly

inadmissible under governing evidentiary rules.

           Accordingly, the circuit court erred in finding that

Nozawa’s declarations were not competent evidence under HRCP

Rule 56 because they were self-serving, conclusory, and

uncorroborated.16

             2. Nozawa’s alleged error involving Conradt

           Nozawa’s statements in her declarations also related

to the alleged error involving Conradt.          The ICA found that

Nozawa provided no documentation or further details regarding


      16
            In ruling upon Nozawa’s declarations, the circuit court cited
Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054 (9th Cir. 2002), for the
proposition that uncorroborated, conclusory, or self-serving statements
cannot defeat summary judgment. However, unlike the plaintiff in Villiarimo,
who the Court of Appeals found had made assertions that were not supported by
the evidence in the record, 281 F.3d at 1063-64, Nozawa submitted statements
in compliance with the admissibility requirements of HRCP Rule 56(e).

            The circuit court also relied on Hansen v. United States, 7 F.3d
137 (9th Cir. 1993), to support its finding that Nozawa’s declarations were
insufficient to defeat summary judgment. In Hansen, the Court of Appeals
stated that a nonmoving party that relies only on its own affidavits “cannot
rely on conclusory allegations unsupported by factual data to create an issue
of material fact.” 7 F.3d at 138. As stated, Nozawa’s declarations
contained assertions that were based on her personal knowledge and that would
be admissible in evidence.




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her statement that she disputed the contents of the Warning

letter.     As stated above, there is no requirement that a

declaration in opposition to a summary judgment motion be

corroborated by independent evidence.           See Stein, 881 F.3d at

858.    Nozawa was thus not required to provide additional

documentation regarding her statement.            The evidence in the

record also contradicts the ICA’s conclusion that Nozawa failed

to provide further details regarding the event.

             The Warning letter specified that Nozawa had entered

incorrect dates resulting in members, and specifically Conradt,

being dispatched incorrectly.          Nozawa averred that she had been

falsely accused of making a mistake as to Conradt, stating that

she had followed proper protocol.           Nozawa explained that she

performed override corrections for Conradt in accordance with

the JPR and with Mendes’ approval.           Nozawa’s declaration

indicated that she dealt directly with Conradt when the alleged

errors occurred, and thus she would have had personal knowledge

of Conradt’s paperwork.        Further, Nozawa stated that when she

was to be terminated for the alleged error involving Conradt,

Soquena intervened and stopped the termination.             Thus, Nozawa

did provide additional details disputing the Warning letter.

             Accordingly, the circuit court and the ICA erred in

not properly considering Nozawa’s declarations as to the alleged

error involving Conradt.
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B. The Circuit Court Abused Its Discretion In Striking The Mahoe
                            Declaration

            During the continued summary judgment hearing, the

circuit court stated that the Mahoe Declaration seemed to exceed

the limited scope of the supplemental briefing order, which the

court believed “was just for the purposes of the false

accusation.”   After reviewing the order, which stated that

Nozawa “may file a Supplemental Memorandum in Opposition

addressing Defendant’s Supplemental Memorandum,” the court

acknowledged that the order did not in fact contain such a

limitation.    The court nonetheless struck the Mahoe Declaration

based on its recollection of the purpose of the supplemental

briefing.

            The order granting the motion for leave expressly

permitted Nozawa to file a supplemental memorandum addressing

Local 3’s supplemental reply.       Local 3’s supplemental reply

argued that there was no disputed fact as to Nozawa’s deficient

work performance, Nozawa’s alleged error involving Conradt, and

the reorganization that occurred.        Additionally, Local 3

contended that there was no evidence of dishonesty as to its

reasons for terminating Nozawa and no evidence of pretext, and

thus it was entitled to summary judgment.

            Nozawa, in response, submitted a supplemental

opposition with her own declaration and a declaration from


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Mahoe.   The Mahoe Declaration provided evidence that indicated

Nozawa may have been terminated based on her gender and not due

to inadequate work performance or reorganization as Local 3

maintained.   Mahoe averred that, while treasurer, he attended

meetings in 2009 and 2010 at which Local 3 officers discussed

replacing women dispatchers with men.        The Mahoe Declaration

named Burns and Reding as two of the officers present during

those meetings, both of whom were involved in the decision to

terminate Nozawa.    Reding was also involved in the decision to

discipline Nozawa over the Conradt incident.          Mahoe additionally

declared that he believed Nozawa was doing a good job and that

he wanted her to remain in her position as dispatcher.

          The Mahoe Declaration therefore addressed the

arguments raised in Local 3’s supplemental reply regarding the

quality of Nozawa’s work, the alleged error involving Conradt,

and the presence of dishonesty or pretext in the decision to

terminate Nozawa.    The declaration was accordingly within the

scope of the circuit court’s order granting leave to submit

supplemental briefing.

          An abuse of discretion occurs when a court “clearly

exceed[s] the bounds of reason or disregard[s] rules or

principles of law or practice to the substantial detriment of a

party litigant.”    Amfac, Inc. v. Waikiki Beachcomber Inv. Co.,

74 Haw. 85, 114, 839 P.2d 10, 26 (1992) (citing State v. Akina,
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73 Haw. 75, 78, 828 P.2d 269, 271 (1992)).         Here, the circuit

court disregarded principles of law or practice by striking the

Mahoe Declaration, which was in compliance with the court’s

order.   Thus, the circuit court abused its discretion in not

considering the Mahoe Declaration, substantially prejudicing

Nozawa’s ability to controvert Local 3’s supplemental reply.

C. There Is A Genuine Issue Of Material Fact As To Whether Local
        3’s Reasons For Terminating Nozawa Were Pretextual

          “[S]ummary judgment is appropriate if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no

genuine issue as to any material fact and that the moving party

is entitled to a judgment as a matter of law.”          Adams v. CDM

Media USA, Inc., 135 Hawaii 1, 12, 346 P.3d 70, 81 (2015)

(alteration in original) (quoting Shoppe v. Gucci Am., Inc., 94

Hawaii 368, 376, 14 P.3d 1049, 1057 (2000)).         “A fact is

material if proof of that fact would have the effect of

establishing or refuting one of the essential elements of a

cause of action or defense asserted by the parties.”           Id.

(quoting Shoppe, 94 Hawaii at 376, 14 P.3d at 1057).

          The burden is on the moving party to establish that

summary judgment is proper.      French v. Haw. Pizza Hut, Inc., 105

Hawaii 462, 470, 99 P.3d 1046, 1054 (2004).         “This burden always

remains with the moving party and requires the moving party to
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convince the court that no genuine issue of material fact exists

and that the moving part[y] is entitled to summary judgment as a

matter of law.”     Id. (citation omitted).

           “[O]nce a summary judgment movant has satisfied its

initial burden of producing support for its claim that there is

no genuine issue of material fact, the party opposing summary

judgment must ‘demonstrate specific facts, as opposed to general

allegations, that present a genuine issue worthy of trial.’”

Lales v. Wholesale Motors Co., 133 Hawaii 332, 359, 328 P.3d

341, 368 (2014) (quoting French, 105 Hawaii at 470, 99 P.3d at

1054).   “[T]he evidence must be viewed in the light most

favorable to the non-moving party.”         Adams, 135 Hawaii at 12,

346 P.3d at 81 (alteration in original) (quoting Shoppe, 94

Hawaii at 376, 14 P.3d at 1057).

           HRS § 378-2(a)(1)(A) (1993 and Supp. 2010) provides as

follows: “It shall be an unlawful discriminatory practice: (1)

Because of . . . sex . . . For any employer to . . . discharge

from employment . . . any individual.”          Thus, HRS § 378-2

prohibits an employer from discharging a person because of that

person’s gender.17     Discrimination may be proven by

      17
            Employers of at-will employees are subject to the provisions of
HRS § 378-2. HRS chapter 378 defines “employer” as “any person, including
the State or any of its political subdivisions and any agent of such person,
having one or more employees, but shall not include the United States.” HRS

                                                             (continued . . .)

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circumstantial evidence.         Shoppe, 94 Hawaii at 378, 14 P.3d at

1059.    When analyzing a claim of discrimination that relies on

circumstantial evidence, we engage in a three-step analysis.

Adams, 135 Hawaii at 13, 346 P.3d at 82 (citing Shoppe, 94

Hawaii at 378-79, 14 P.3d at 1059-60).

            First, the plaintiff must establish a prima facie case of
            discrimination by demonstrating, by a preponderance of
            evidence, the following four elements: (1) that plaintiff
            is a member of a protected class; (2) that plaintiff is
            qualified for the position . . . from which plaintiff has
            been discharged; (3) that plaintiff has suffered some
            adverse employment action, such as a discharge; and (4)
            that the position still exists.

Shoppe, 94 Hawaii at 378, 14 P.3d at 1059 (citation omitted).

            Second, “[o]nce the plaintiff establishes a prima

facie case of discrimination, the burden of production shifts to

the defendant to articulate a legitimate, nondiscriminatory

reason for the adverse employment action.”            Adams, 135 Hawaii at

13, 346 P.3d at 82 (citing Shoppe, 94 Hawaii at 378, 14 P.3d at

1059).   “The employer’s explanation must be in the form of

admissible evidence and must clearly set forth reasons that, if

believed by the trier of fact, would support a finding that


(. . . continued)

§ 378-1 (1993). “In enacting    the employment discrimination law, the
legislature intended that all   employers, regardless of size, be subjected to
its provisions.” Sam Teague,    Ltd. v. Hawaii Civil Rights Comm’n, 89 Hawaii
269, 281, 971 P.2d 1104, 1116   (1999) (referencing definition of “employer” in
HRS § 378–1 (1993)).




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unlawful discrimination was not the cause of the challenged

employment action.”      Id. (citing Shoppe, 94 Hawaii at 378, 14

P.3d at 1059).18

           Third, “if the employer rebuts the prima facie case,

the burden reverts to the plaintiff to demonstrate that the

defendant’s proffered reasons were ‘pretextual.’”            Id. at 14,

346 P.3d at 83 (citing Shoppe, 94 Hawaii at 379, 14 P.3d at

1060).

           Summary judgment is improper if there is a genuine

issue as to whether a defendant’s reasons for terminating the

plaintiff are a pretext for discrimination.           See Simmons v. Aqua

Hotels & Resorts, Inc., 130 Hawaii 325, 331-32, 310 P.3d 1026,

1032-33 (App. 2013) (finding that a fact issue existed as to

whether the defendant’s reasons were pretextual); see also

Shoppe, 94 Hawaii at 382, 14 P.3d at 1063 (“Plaintiff has not

alerted this court to any other evidence that would give rise to

a genuine issue of material fact” as to whether the defendant’s

reason for taking adverse employment action against the

plaintiff was pretextual).


     18
            The ICA’s decision and the parties’ arguments on certiorari
predominantly focus on pretext. In light of our resolution of this issue, we
do not consider whether there was a genuine issue of material fact as to
whether Local 3 articulated a legitimate, nondiscriminatory reason for its
adverse employment action against Nozawa.




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           In support of its motion for summary judgment, Local 3

submitted declarations stating that it terminated Nozawa as part

of a staffing reorganization to retain Gentzler, who unlike

Nozawa had not committed a serious dispatching error and did not

have work performance problems.        Nozawa responded with evidence

indicating that her termination was not based on the reasons

provided by Local 3 but, rather, because of her gender.             Nozawa

declared that she did not have work performance problems and was

fully capable of performing her job at the time of termination;

her supervisor, Soquena, never informed her of any work

performance problems; and she always received excellent

employment evaluations.       Nozawa also pointed to the termination

letter she received, which stated that her termination was the

result of reorganization and restructuring and did not reference

inadequate work performance.19       As to the alleged error involving

Conradt, Nozawa explained that she had followed established

procedure in obtaining a code from Mendes after Conradt provided

the necessary paperwork in accordance with the JPR, and she then

performed the override corrections.

           Further, in the Mahoe Declaration attached to Nozawa’s

supplemental opposition, Mahoe averred that, while treasurer, he
      19
            The parties also provide differing views as to whether the email
exchanges between Nozawa and Mendes after the Warning letter demonstrate that
Nozawa continued to make mistakes.




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attended meetings in 2009 and 2010 at which Local 3 officers

discussed replacing women dispatchers with men.           Mahoe stated

that he objected, as he felt Nozawa was doing a good job and

wanted her to remain as the dispatcher.          Additionally, Mahoe

named Reding and Burns as two of the officers present at the

specified meetings, and as Local 3’s evidence shows, both Reding

and Burns were involved in the decision to terminate Nozawa.

           In sum, Nozawa provided evidence contradicting Local

3’s contention that she was terminated due to reorganization and

deficient job performance.       Thus, the evidence, viewed in the

light most favorable to Nozawa, demonstrates that there is a

genuine issue as to whether Local 3’s reasons for terminating

her were pretextual.20      “[S]ummary judgment should not be granted

unless the entire record shows a right to judgment with such

clarity as to leave no room for controversy and establishes

affirmatively that the adverse party cannot prevail under any

circumstances.”     Simmons, 130 Hawaii at 332, 310 P.3d at 1033

(alteration in original) (quoting Balthazar v. Verizon Haw.,

     20
            Relying on Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054
(9th Cir. 2002), Local 3 contends that the inquiry is whether the employer’s
honest belief in the employee’s misconduct was the reason for the employee’s
termination. This reliance is misplaced because there is a genuine issue of
material fact as to whether Local 3 honestly believed its reasons for
terminating Nozawa. See Lales, 133 Hawaii at 358, 328 P.3d at 367 (holding
that the defendants’ reliance on Villiarimo was unpersuasive because there
was a genuine issue of material fact as to whether the employer honestly
believed its reasons for its actions).




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Inc., 109 Hawaii 69, 72, 123 P.3d 194, 197 (2005)).

Accordingly, the circuit court erred in granting summary

judgment in favor of Local 3.

                            IV.   CONCLUSION

          Based on the foregoing, the ICA’s July 28, 2017

Judgment on Appeal, the circuit court’s October 18, 2013 final

judgment, the circuit court’s order granting the motion for

summary judgment, and the December 4, 2013 order denying

Nozawa’s motion for reconsideration are vacated, and the case is

remanded to the circuit court for further proceedings.

Charles H. Brower and                    /s/ Mark E. Recktenwald
Michael Healy
for petitioner                           /s/ Paula A. Nakayama

Ashley K. Ikeda and                      /s/ Sabrina S. McKenna
David A. Rosenfeld
for respondent                           /s/ Richard W. Pollack

                                         /s/ Michael D. Wilson




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