    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***




                                                              Electronically Filed
                                                              Supreme Court
                                                              SCWC-12-0000741
                                                              24-FEB-2015
                                                              09:45 AM




           IN THE SUPREME COURT OF THE STATE OF HAWAIʻI

                                ---o0o---


         CHRISTIE ADAMS, Petitioner/Plaintiff-Appellant,

                                    vs.

       CDM MEDIA USA, INC., Respondent/Defendant-Appellee.


                            SCWC-12-0000741

         CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS
              (CAAP-12-0000741; CIV. NO. 11-1-0931)

                           February 24, 2015

  McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE ALM, IN PLACE OF
   ACOBA, J., RECUSED, WITH RECKTENWALD, C.J., CONCURRING AND
            DISSENTING, WITH WHOM NAKAYAMA, J., JOINS

                OPINION OF THE COURT BY POLLACK, J.

                             I. Background

          Christie Adams (Adams) filed a complaint in the

Circuit Court of the First Circuit (circuit court) alleging that

she had been subjected to employment discrimination in violation

of Hawaiʻi Revised Statutes (HRS) § 378-2.         The discriminatory
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


act claimed by Adams was CDM Media, USA, Inc.’s (CDM) decision

not to hire Adams due to her age.        CDM’s motion for summary

judgment was granted by the circuit court on the basis that

Adams had failed to demonstrate that CDM’s reasons for not

hiring her were pretextual.      In a summary disposition order, the

Intermediate Court of Appeals (ICA) affirmed the holding of the

circuit court, and Adams sought review of the ICA judgment in

this court.

          For the reasons set forth below, we hold that summary

judgment was improperly granted as CDM did not satisfy its

burden to articulate a legitimate, nondiscriminatory reason for

declining to hire Adams, and therefore pretext was not required

to be considered by the circuit court.         Accordingly, we vacate

the judgments of the ICA and the circuit court and remand the

case to the circuit court for further proceedings.

              A. Employment action and HCRC decision

          On January 12, 2009, CDM published an online

solicitation seeking applicants for its International Media

Sales Executives positions.      CDM described the International

Media Sales Executive position as “an inside [telephone] sales

person job that . . . requires 200 to 250 cold calls a day.”

The relevant portions of the advertisement stated as follows:

          We’re looking for motivated, hungry people to join our ever
          expanding sales team in the role of advertising sales. We
          offer recognized training to build upon your formal
          education/experience and teach you the business of



                                  - 2 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


              advertising and summit sales in order for you to progress
              and build your career quickly.

              We offer great base salary, health/dental insurance and
              very attractive bonus scheme to ensure we have a high level
              of achievers applying (Realistic OTE 1st year- $70K).

              The heart of CDM Media is based on a commitment to
              innovation, so if you are looking for a business
              environment that’s conducive to creativity and challenge,
              please inquire about this unique advertising sales
              opportunity.

              Here are a few key benefits to working at CDM Media:
             Competitive starting salary + aggressive commission and
              bonus package (Realistic first year OTE 70k)
             First-class Sales Training Program from the best in the
              industry
             Lucrative sales prizes for top-performers
             Generous paid time off programs  Comprehensive training
              sessions
             Health/Dental benefits
             Career development opportunities
             Referral bonuses for bringing in new sales talent
             Being a contributor to REAL growth

              Requirements
             Sales experience preferred
             Detail-oriented and organized
             Strong communication skills
             Willingness to take on new challenges
             MOST IMPORTANTLY, a true determination to succeed!

(Emphasis in original).         On February 11, 2009, a local newspaper

posted a story stating that CDM was looking to hire “energetic

and driven professionals” and was planning to put them “through

an eight-week comprehensive training course.”             Adams saw this

article and online advertisements related to the position.1

              CDM’s hiring procedure at the time was as follows:


      1
            Adams also saw online advertisements that stated CDM was seeking
“youthful” employees. Adams submitted these advertisements in response to
CDM’s Motion for Summary Judgment. CDM denied placing such advertisements.
The circuit court found the advertisements to be inadmissible hearsay.




                                      - 3 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          a.    Brandon Bera, CDM HR Director, calls all applicants
          to speak for a 5 minute phone screening with very basic
          questions regarding what interested them about CDM Media.
          It is then determined who will be brought in for a first
          round face-to-face interview.

          b.    Brandon Bera, CDM HR Director, hosts the first round
          of interviews and reviews all candidates that came in for
          the interview and narrows down the list of potential
          candidates to meet with the CEO, Glenn Willis. This is
          meant to be an interview focusing on experience,
          personality, characteristics, professional appearance of
          the candidate, and to determine if they seem like team
          players. Usually, there are hundreds of applicants that
          are narrowed down to around 4-5 dozen that will be met in
          person.

          c.    Those select few that stick out from the first round
          interview are then moved on to the second round where they
          will meet with CDM’s CEO, Glenn Willis, and often times
          CDM’s VP of Sales, Nick Backhouse in the same day. This is
          meant to focus on more in-depth personality characteristics
          to and detailed questions about experience to make sure
          what was said in the first interview aligns to the second
          interview.

          d.    Those that impress all parties involved in the hiring
          process (CDM’s CEO and President Glenn Willis, HR Director
          Brandon Bera and sometimes Sales Vice President/Director
          Nick Backhouse if reassurance is needed) are then made an
          offer within a couple weeks of the final interview.

On February 13, 2009, Adams sent an email to CDM Human Resources

Director, Brandon Bera (Bera), applying for the position.              The

email included a list of awards Adams won while working for

Verizon in Hawaiʻi, which included awards for “inside/telephone”

sales and “outside” sales and at least one award exclusively for

telephone sales:

          President’s Award for Professional Salesmanship, Premise
          Sales Representative, for the Calendar Year 2000 This award
          is presented to the top outside sales representative (of
          about 23 outside sales reps) in Verizon Information
          Services’ Honolulu Division based 80% on customer growth
          and 20% on customer satisfaction.

          Hall of Fame Award for the Calendar Year 2000 One of the
          most coveted and prestigious of all Verizon sales awards,
          this award is presented to outside and telephone sales


                                  - 4 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


             representatives who achieve a net increase of 25% for two
             consecutive years. . . .

             1999-2000 Silver Prize Tip [sic] Winner to Montreal and
             Quebec City, Canada During the one-year period of the
             contest, winning sales representatives must achieve a
             minimum of 115% to sales net goal performance and a minimum
             of 100% to performance selling items on superpages.com,
             must participate in at least one Quality Improvement Team
             (QIT), and must have an error percentage less than 1/2 of
             one percent of all advertising revenue handled. Of about 23
             telephone sales reps and 23 outside sales reps, I was the
             only sales rep in the Hawaii Division to win this prize
             trip, which was based upon meeting all four goals in the
             Hawaii marketplace.

             Top Producer, Premise Sales Reps, Kauai 2000 Telephone
             Directory Canvass For 195.51% performance to goal (of about
             23 outside sales reps).

             ZEAM Award for the Calendar Year 1999 This award is
             presented to sales reps who achieved or exceeded their
             annual sales goal with zero errors or mistakes over a one-
             year period of time. . . .

             Top Producer, Telephone Sales Reps, Big Island 1999
             Telephone Directory Canvass For 217% performance to goal
             (from about 23 telephone sales reps).

             Eagle Award, 1999 This award is given to sales
             representatives who perform at 100% or higher consistently
             for 26 weeks in a row.

(Underlining added).       On February 18, 2009, Bera had a five-

minute phone call with Adams.         After the call, Adams sent Bera

another email, this one including Adams’ professional resume and

a list of her computer, clerical, and office skills, which

stated Adams had “used computers on a daily basis for the past

25 years.”

             The resume attached to this second email stated that

Adams had “[m]ore than 20 years of full-time, hands-on

experience in nearly all aspects of sales and marketing,

including inside and outside sales.”          Adams had received a B.A.



                                     - 5 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


from Stanford University and “complet[ed] additional college

courses taken in Switzerland and at the University of Hawaiʻi at

Manoa.”

            Adams’ resume indicated that from 1984 to 1986, she

was the Executive Director of The Hawaiʻi Society/The American

Institute of Architects, where she managed the affairs of the

550-member non-profit.     From 1986 to 1998, Adams was the

President of Christie Adams & Associates Marketing and Public

Relations, where she worked directly with many clients,

including owners of businesses, executives of nonprofits and

governmental managers, to develop public relations programs and

organize special events.      From September 1998 to 2003, Adams

worked for Verizon selling advertising in Verizon’s print and

online Yellow Pages, contacting customers in person and by

phone.    While working at Verizon, Adams won the sales

achievement awards described in her email to Bera.

            From May 2004 to September 2004, Adams was a Loan

Officer with Hawaii HomeLoans where she met with prospective

home loan clients “over the phone and/or in person.”           Lastly,

from October 1, 2004, to May 15, 2007, Adams’ resume lists her

as a “Caregiver for Terminally-ill parent” and, from August 2007

to August 2008, as a “Home Organizer for the Lillian B. Adams

Trust.”




                                  - 6 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


             On or about February 19, 2009, Adams was interviewed

in person by Bera.     On the date of the interview Adams was 59

years old.    As described by Adams, “[a]t the end of the

interview I asked Bera what the next step would be and he seemed

hesitant to pass me along for the next interview.            He said Glenn

Willis would decide.”      Glenn Willis (Willis) was the President

and Chief Executive Officer (CEO) of CDM at the time.             The only

notes from the interview were notations made on an attachment to

Adams’ first email, one of which was a box drawn around

“Verizon/Yellow Pages” with the words “1/2 inside” and “1/2

outside” written beside it.2

             Adams was not asked to return for the second interview

and received no other contact from CDM until March 1, 2009.                 On

that date, Adams received a rejection letter from CDM.             On March

30, 2009, CDM hired four persons for the position sought by

Adams, who ranged in age from 24 to 38.          On May 15, 2009, CDM

hired three more persons for the position, ranging in age from

23 to 40.    By October 19, 2009, only the two youngest of the new

hires were still employed by CDM.3



      2
            CDM admitted that the notes on Adams’ February 13, 2009 email
were “handwritten notes relating to the interview.”
      3
            CDM included in its Respondent’s Answer to Charge of
Discrimination Filed on August 27, 2009 to the HCRC a list of all employees
hired around the time Adams was interviewed and a list of “current
employees.”




                                    - 7 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          On August 27, 2009, Adams filed a Charge of

Discrimination against CDM with the Hawaiʻi Civil Rights

Commission (HCRC).    In her submission to HCRC, Adams stated, “I

believe that if not for my age I would have been hired for the

International Media Sales Executive position.”          CDM filed

“Respondent’s Answer to Charge of Discrimination Filed on August

27, 2009” (Answer).     The Answer stated, inter alia, that sales

executives in the position for which Adams applied made “200 to

250 cold calls a day” and that one criteria CDM used to evaluate

candidates was whether or not they had “[e]xperience in dealing

with VP and C-level executives in Fortune 500 organizations.”

The Answer also included a list of all employees hired around

the time Adams was interviewed and a list of “current

employees.”   On February 9, 2011, the HCRC issued a Notice of

Dismissal and Right to Sue Letter.

                           B. Circuit Court

          On May 10, 2011, Adams filed a complaint in the

circuit court.    The complaint alleged that CDM had violated HRS

§ 378-2 by discriminating against Adams due to her age.            Adams

alleged CDM posted advertisements seeking applicants who were

“youthful” and “recent college graduates.”         Adams claimed she

was entitled to loss of income because she was not hired as a

result of discrimination and “was not able to become employed

for a long period of time despite her efforts to find


                                  - 8 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


employment.”    Adams requested an order that CDM hire her, and

she also sought general damages, special damages (such as lost

wages, punitive damages, and litigation costs), and attorney’s

fees, as well as other appropriate relief.

             On June 20, 2011, CDM filed an answer to the

complaint.    CDM denied that Adams was qualified for the

position, denied placing any ads for “youthful” people or

“recent college graduates” to join its sales team, and denied

that Adams was not hired because CDM “was advertising for

‘youthful’ applicants and ‘recent college graduates.’”

             On February 21, 2012, CDM filed a motion for summary

judgment (MSJ).    CDM claimed it was “entitled to summary

judgment on [Adams’] age discrimination claim because the record

lacked substantial evidence that either: (1) Adams was qualified

for the sales position, or (2) CDM Media’s reasons for not

hiring Adams for the sales position were a pretext for age

discrimination.”    The only relevant document attached to the MSJ

is a declaration from Willis (Willis’ Declaration or

Declaration).    In his Declaration, Willis states that it was his

decision not to hire Adams in February 2009.          Willis declares it

was his “belief” that Adams was not qualified for the position.

Willis also states that he “did not consider any criteria stated

in any advertising or posting in making my decision not to hire”

Adams.   (Emphasis added).


                                  - 9 -
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


      The content of Willis’ Declaration is as follows:

      1.   I am the President and CEO of CDM Media USA, Inc.

      2.   CDM Media provides business to business technology
           marketing services. In particular, it provides global
           marketing assistance to information technology
           executives from Fortune 1000 companies by way of (1)
           web products, (2) interactive media campaigns, (3)
           workshops and (4) a variety of invitation-only custom
           technology marketing events. All of these products are
           aimed at an audience of C-Level corporate executives
           (for example CEOs, CIOs and CFOs) with information
           technology responsibility for their companies.

      3.   I decided not to hire Plaintiff Christie Adams in
           February of 2009.

      4.   The inside sales person job that Ms. Adams applied for
           involves cold calling C-Level executives of Fortune
           1,000 companies responsible for information technology,
           can be tedious and requires a team player.

      5.   It was my belief that [Adams] was not qualified for the
           job because:

            a.   She had no sales experience in the prior five
                 years;

            b.   As far as I understood, most of her recent
                 (previous 10-15 years) sales experience was in
                 publishing and/or selling phone book advertising
                 which incorporated outside sales and face to face
                 communication;

            c.   As far as I understood, she had little or no
                 sales experience that involved selling to C-Level
                 corporate executives of Fortune 1,000 companies;
                 and

            d.   I was advised that she had said that she disliked
                 tedious work.[4]

      6.   The company did not hire any younger applicants with
           equal or lower qualifications for the position.

      7.   I was not involved in creating, reviewing or approving
           any advertising or posting for the position for which
           [Adams] applied, nor was I aware of the content of such
           advertising or posting, and I did not consider any
           criteria stated in any advertising or posting in making
           my decision not to hire [Adams].

4
      Adams disputed making such a statement.




                              - 10 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


(Emphases added).

            Citing to Willis’ Declaration, CDM argued the record

lacked substantial evidence of Adams’ qualification for the

position.   CDM made four arguments to establish that Adams was

not qualified: (1) Adams had no sales experience in the five

years prior to applying for the CDM position; (2) “very little

of what Adams did more than five years before she applied for

the inside sales job at CDM Media had anything to do with that

job, because she spent much of her time before her more than

five year hiatus as an outside sales person”; (3) Adams’ “prior

sales experience did not involve selling to C-level executives

of Fortune 1,000 companies”; and (4) “the work at CDM Media can

be tedious” and Adams had expressed a dislike of tedious work.

CDM maintained that it was justified in considering recent sales

experience as an important job qualification because Adams had

“no relevant work experience” “that [was] sufficient ground to

hold that she was not qualified for the sales position.”

            CDM argued further that Adams failed to establish that

CDM’s reasons for not hiring her were a “pretext” for

discrimination.    CDM contended that to establish pretext, Adams

must show that CDM’s explanation was “unworthy of belief,” “a

dishonest explanation,” or “deceit used to cover one’s tracks.”

CDM claimed that “Willis’ honest belief in the reasons he had

for deciding that Adams was not qualified prevents Adams from


                                  - 11 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


showing pretext.”    CDM also claimed that “[n]o one who was hired

was similarly unqualified.”      Even if CDM misjudged Adams’

qualifications, CDM contended that it had discretion in making

hiring decisions and “[i]n order to overcome this discretion,

Adams would have to show that she was ‘clearly superior’ or

‘significantly’ or ‘markedly’ better than chosen candidates.”

CDM argued that Adams made no such claims.

          On June 27, 2012, Adams filed a memorandum in

opposition to the MSJ.     Adams attached a declaration to her

submission, stating “I had provided Bera with sufficient

information of my qualifications before and during the phone

interview to set up an in-person interview, and at the in-person

interview.”   Adams noted, “CDM did not state that job applicants

needed to be currently employed in sales.”         Adams represented

that none of the “online classified ads placed by Defendant for

employees that I saw” mentioned that the position required sales

experience selling to C-Level corporate executives of Fortune

1,000 companies.    Likewise, Adams declared this “area of

expertise” was not “mentioned to me during my telephone

interview by Bera, nor during my in-person interview with Bera.”

          Adams also declared that, contrary to Willis’

statement, her sales experience in the ten to fifteen years

prior to the interview was not limited to outside, face-to-face

sales of printed phone book advertising, but also included


                                  - 12 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


“online, selling websites and links for customers,” as well as

“print and online advertising full-time in an inside sales

position over the phone from September of 1998 to about May of

2000, when our management promoted me into outside sales.”

Adams stated that she possessed twenty-five years of “computer

experience” at the time of the interview.

          Adams additionally set forth in her declaration that

she “previously had dealt with many high-level executives dating

back to my first full-time job in 1974.”         Adams stated, “[e]ven

though I was well qualified for the position, was a top sales

associate when employed by the yellow pages, had won numerous

sales awards there, and had traveled all over the world, I feel

that CDM did not hire me because I was not ‘young’ enough for

CDM Media.”

          In Adams’ memorandum in opposition, she argued first

that it was “obviously not true” that she was unqualified for

the job as she “was highly qualified for the job due to her

experience in sales.”     Adams maintained that “the job did not

require sales experience,” and thus the argument that Adams did

not have the required sales experience is “pure pretext to cover

age discrimination.”     Adams also denied stating that she did not

like tedious work.

          On June 29, 2012, CDM filed a reply.          CDM contended

that Willis’ Declaration supported the fact that CDM had


                                  - 13 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


“presented evidence that it did not hire younger applicants than

Adams who had qualifications equal to or lower than hers.”             CDM

maintained that Adams presented no admissible evidence “that any

person CDM Media hired is younger and/or equally or less

qualified than Adams.”

          On July 5, 2012, a hearing was held on the MSJ.             The

court explained that “the question in the Court’s mind boiled

down to the third prong of the McDonnell Douglas test.”            The

court’s view was that Adams had not raised a genuine issue of

material fact with regard to pretext.

          Adams responded that she did not need to prove pretext

because CDM had not satisfied its burden of showing that it had

legitimate nondiscriminatory reasons not to hire Adams.            CDM

replied that the five-year gap in Adams’ work experience was a

sufficient nondiscriminatory reason not to hire Adams.            Adams’

counsel countered that the five-year gap was irrelevant because

Adams “was a good, an excellent, a terrific, a fantastic

salesperson. . . .”     Counsel noted, “[y]ou know, this is not

rocket science.    You get on the phone.       You have a very good

personality.   You know what the script is to talk to people

about, which is provided by the company.         So how does that have

any relationship to a decision not to hire her?”

          Adams maintained that CDM’s contention that she said

she did not like “tedious” work was not only false but was also


                                  - 14 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


“created to substantiate their pretext for not hiring her.”

Adams argued that although Willis stated the job required a

“team player,” “he didn’t say anything about why [Adams was] not

a team player.”

          In response to the court’s specific inquiry into what

Adams’ arguments were concerning pretext, Adams argued the

following: (1) the contentions that she did not have sales

experience for five years or experience calling C-level

executives were both pretext for discrimination because the

posted job advertisements did not state that sales experience or

experience in calling executives was required; (2) the “tedious

work” comment was clearly a material issue of fact as anyone who

heard such a comment would not hire a person for the job, and

Willis based his decision on that comment; and (3) no evidence

was presented that Adams was not a team player.          Adams concluded

that material issues of fact existed and that summary judgment

was inappropriate.

          The circuit court orally ruled that, under McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973), Adams had made a

prima facie case of discrimination: “This Court, under the

pertinent McDonnell Douglas test . . . concludes that the

plaintiff did meet their initial burden of establishing the

prima facie showing.”     Thus, the burden shifted to the employer,

and “[t]he employer, based on the paper submitted to the Court,


                                  - 15 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


did establish legitimate nondiscriminatory reason [sic] for not

hiring the plaintiff.”     The circuit court concluded that Adams

“did not raise triable issues of material fact as to the

employer’s reason that the non-hiring was pretextual.”

          Concerning the “tedious work” comment, the circuit

court ruled “there may be a material – there may be a disputed

fact there.   But in this Court[’s] view, that alone is not

enough to meet plaintiff’s burden, once we hit the third prong

of the McDonnell Douglas test.”

          Concerning Adams’ argument that the persons hired

instead of Adams “had no sales experience, or sales experience

that was less than that of the plaintiff,” the circuit court

ruled “all that’s submitted in support of that assertion is her

own declaration.”    The circuit court viewed that evidence as

“not admissible.”    Accordingly, the circuit court granted

summary judgment in favor of CDM.

          The circuit court did not make separate findings of

fact and conclusions of law.      The July 24, 2012 Order Granting

Defendant’s Motion for Summary Judgment Filed February 21, 2012,

affirmed the circuit court’s oral ruling.

          [T]he [circuit court] finds and orders as follows:

          That [Adams] has met her burden of showing a prima facie
          case of age discrimination. That [CDM] has met its burden
          to articulate a legitimate nondiscriminatory reason for not
          hiring [Adams]. That the burden therefore shifted to
          [Adams] to demonstrate [CDM’s] reasons were perpetual.
          That [Adams] failed to raise a genuine issue of material
          fact as to whether [CDM’s] reasons were pretextual. That


                                  - 16 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            [CDM’s MSJ] should therefore be granted and [Adams’]
            Complaint dismissed.

Also on July 24, 2012, the circuit court entered its final

judgment in favor of CDM.       On August 23, 2012, Adams filed a

timely notice of appeal to the ICA.

                          C. Appeal to the ICA

            On December 26, 2012, Adams filed her Opening Brief

with the ICA contending that the trial court erred in granting

summary judgment in favor of CDM.         Adams requested the ICA

reverse the circuit court’s decision and remand for trial.

            Adams first argued that “CDM did not meet its initial

burden of establishing a legitimate, nondiscriminatory

justification for not hiring [Adams].”         Adams contended that

Willis’ statements concerning CDM not hiring any younger,

equally or less qualified individuals than Adams, and “Adams did

not have enough sales experience for the job,” “are conclusory

statements not supported by evidence.”         Adams maintained that

she had no “duty to rebut these statements until the statements

themselves had been properly supported by evidence.”               Adams also

maintained that “Willis’ conclusory statements that Adams didn’t

measure up should have been supported by the resumes of the

individuals who were hired.”

            On April 15, 2013, CDM filed its Answering Brief.              CDM

reasserted its contention that Adams was not qualified for the

position.    CDM argued that Adams “[i]n particular, [] failed to


                                   - 17 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


establish the second element for a prima facie case, i.e., that

she was qualified for the position for which she applied.”              CDM

maintained that it had articulated a legitimate,

nondiscriminatory reason for not hiring Adams.          Relying on

Willis’ Declaration, CDM maintained the legitimate reason was

that:

          Willis decided that [Adams] was not qualified for the job
          because [Adams] had no sales experience in the prior five
          years. Willis understood that [Adams’] recent sales
          experience (the previous 10-15 years) was in publishing and
          selling phone book advertising which involved outside sales
          and face to face communication. Willis understood [Adams]
          had little or no sales experience that involved selling to
          C-level executives of Fortune 1,000 companies. Willis was
          advised that [Adams] said that she disliked tedious work.

Furthermore, CDM argued it “was entitled to use subjective

hiring criteria.”    CDM maintained that “contrary to [Adams’]

contentions, CDM does not have the burden of proving that the

persons it hired were more qualified than [Adams].”           CDM argued

that it could “appropriately consider factors not listed in the

advertisement” in making hiring decisions.

                            D. ICA decision

          On October 18, 2013, the ICA issued its Summary

Disposition Order (SDO).      The ICA held that CDM stated a

legitimate nondiscriminatory reason for not hiring Adams,

pursuant to McDonnell Douglas.       The ICA found that “Adams did

not produce persuasive, admissible evidence that CDM’s reasons

were pretextual and thus failed to satisfy her burden under

McDonnell Douglas.”     Thus, the ICA affirmed the circuit court’s


                                  - 18 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


rulings.   Aside from the introductory paragraphs, the ICA’s

decision was as follows:

           Adams was 59 years old when CDM declined her application to
           a sales position in their Honolulu office. CDM stated that
           its decision was based on Adams’ lack of recent and
           relevant work experience in inside sales to high level
           corporate executives in Fortune 1,000 companies. By
           articulating this “legitimate, nondiscriminatory reason”
           for refusing to hire Adams, CDM satisfied its burden under
           the pertinent McDonnell Douglas test for age
           discrimination. Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368,
           378, 14 P.3d 1049, 1059 (2000) (citing McDonnell Douglas
           Corp. v. Green, 411 U.S. 792 (1973)); (holding modified by
           Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)); and
           (holding modified by Wilmot v. Forest City Auto Parts, 2000
           WL 804616 (Ohio Ct. App. Jun. 22, 2000)). Adams did not
           produce persuasive, admissible evidence that CDM’s reasons
           were “pretext” and thus failed to satisfy her burden under
           McDonnell Douglas. Shoppe, 90 Hawaiʻi at 378-79, 14 P.3d at
           1059-60. Accordingly, the circuit court concluded that
           Adams “did not raise triable issues of material fact as to
           [CDM’s reasons for not hiring her]” and granted summary
           judgment for CDM.

                       Therefore,

                       IT IS HEREBY ORDERED that the July 24, 2012
           Final Judgment granting the July 24, 2012 “Order Granting
           Defendant’s Motion For Summary Judgment Filed February 21,
           2012” is affirmed.

Adams v. CDM Media USA, Inc., No. CAAP-12-0000741, 2013 WL

5707278 (App. Oct. 18, 2013) (SDO).           The ICA issued its final

judgment on November 21, 2013.

                E. Application for Writ of Certiorari

           On December 23, 2013, Adams filed her Application for

Writ of Certiorari (Application).5           Adams presented two questions

for decision:




     5
           CDM did not file a response to the Application.




                                    - 19 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            A. Whether the [ICA] committed a grave error of law or
            fact in affirming the Circuit Court grant of summary
            judgment?

            B. Whether the decision of the [ICA] contains
            inconsistencies with those of this court of a magnitude
            dictating the need for further appeal?

            Adams maintains, inter alia, that “CDM failed to meet

its initial burden of establishing a legitimate

nondiscriminatory justification for not hiring Adams.”                Adams

contends that the evidence, viewed in the light most favorable

to her, “leads to the conclusion that Willis did not even make

the decision not to hire Adams.”        Adams argues that “it was

actually Bera who decided not to hire Adams as it would have

been impossible for Willis to hire Adams without having

interviewed her.”6     Adams requests that this court review the

ICA’s affirmation of the circuit court’s decision.

                        II. Standard of Review

            “We review a circuit court’s award of summary judgment

de novo under the same standard applied by the circuit court.”

Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368, 376, 14 P.3d 1049,

1057 (2000) (alteration omitted) (quoting Amfac, Inc. v. Waikiki

      6
            Adams argues further that, under a “cat’s paw theory,” even if
Willis was the ultimate decision-maker and held no discriminatory animus
toward Adams, she could still prove discrimination by CDM if the ultimate
adverse employment action was influenced or motivated in some way by the bias
of an employee, such as Bera, who contributed to the decision. Adams argues
that “to establish a legitimate nondiscriminatory reason for rejecting Adams’
application, CDM was required to submit a declaration by Bera explaining why
he did not forward Adams[’] application on to Willis for further review.”
Thus, Adams concludes this failure to establish a lack of discriminatory
animus on the part of Bera was sufficient reason to deny summary judgment in
favor of CDM.




                                   - 20 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22 (1992)).

“[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.”          Id.   “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.

“[T]he evidence must be viewed in the light most favorable to

the non-moving party.”     Id.

                          III.     Discussion

         A. HRS Chapter 378 and the Shoppe-McDonnell test

           HRS § 378-2(1)(A) (1999) states, “It shall be an

unlawful discriminatory practice: [] Because of . . . age . . .

[f]or any employer to refuse to hire . . . any individual.”7

           In enacting Revised Laws of Hawaiʻi (RLH) § 90A-1

(1963), the precursor to HRS § 378-2, HRS Tables of Disposition,

     7
           HRS § 378-2(1)(A) (1999) states in full:

           It shall be an unlawful discriminatory practice:

           (1) Because of race, sex, sexual orientation, age,
           religion, color, ancestry, disability, marital status, or
           arrest and court record:

           (A) For any employer to refuse to hire or employ or to bar
           or discharge from employment, or otherwise to discriminate
           against any individual in compensation or in the terms,
           conditions, or privileges of employment . . . .




                                  - 21 -
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


at 8 (1968), the legislature stated that the purpose of the bill

was

             to protect and safeguard the right and opportunity of all
             persons to seek, obtain, and hold employment or membership
             in a labor organization without discrimination or
             abridgement on account of race, sex, age, religion, color
             or ancestry. It is not the intent of this bill to tell an
             employer whom to hire, but to declare it to be unlawful for
             an employer to refuse to employ, or to discharge from
             employment, any individual because of race, sex, age,
             religion, color or ancestry, nor is it the intent of this
             bill to interfere with management or an employer’s
             prerogative to select the best qualified person for any
             given position in accordance with established occupational
             qualifications that are applied equally to all persons.

S. Stand. Comm. Rep. No. 573, in 1963 Senate Journal, at 866

(emphases added) (hereinafter 1963 Senate Journal); see 1963 Haw.

Sess. Laws Act 180, § 1 at 223.         The purpose of the bill is to

“afford[s] all persons equal opportunities in employment . . . ,

with the qualifications of the applicants being the sole test in

selecting employees.”       1963 Senate Journal at 866.

             HRS Chapter 378 endorses an employer’s authority to

decline to hire employees based on legitimate job

qualifications.      That chapter does not “[p]rohibit an employer

. . . from refusing to hire . . . any individual for reasons

relating to the ability of the individual to perform the work in

question.”     HRS § 378-3(3) (Supp. 1999) (emphasis added).

Therefore, when hiring employees, an employer may consider any

reason related to the ability of an individual to perform the

work in question, but the employer is not permitted, subject to




                                    - 22 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


exceptions not relevant to this case,8 from considering age, as

well as the other categories set forth in HRS § 378-2(1).

            A plaintiff can prove age discrimination “by adducing

circumstantial evidence of discrimination.”9          Shoppe, 94 Hawaiʻi

at 378, 14 P.3d at 1059.       When analyzing a claim of age

discrimination relying on circumstantial evidence, this court

has set forth a three-step analysis, modifying the test adopted

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Shoppe, 94 Hawaiʻi 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 the evidence, the following

four elements: (1) that plaintiff is a member of a protected

class; (2) that plaintiff is qualified for the position for

which plaintiff has applied . . . ; (3) that plaintiff has


      8
            HRS § 378-3 provides, inter alia, that, the provisions of Part 1
of HRS Chapter 378 will not: repeal any law, prevent employers from
establishing “bona fide occupational qualifications,” affect the operation of
retirement plans, prohibit religious organizations from preferring
individuals of the same religion, conflict with security regulations of the
United States or the State, require unreasonable structural changes or
expensive equipment alterations to accommodate a person with a disability,
prohibit schools from considering criminal convictions, prohibit financial
institutions from considering any criminal offense involving dishonesty or a
breach of trust, preclude any employee from bringing a civil action for
sexual harassment or sexual assault, or require an employer to accommodate
the needs of a nondisabled person associated with a person with a disability.
See HRS § 378-3.
      9
            “Because an employer who discriminates is unlikely to leave a
smoking gun attesting to a discriminatory intent . . . a victim of
discrimination is seldom able to prove his claim by direct evidence, and is
usually constrained to rely on circumstantial evidence.” McMillan v.
Examination Mgmt. Servs., Inc., No. 94 CIV. 2229 LAP, 1996 WL 551725
(S.D.N.Y. Sept. 27, 1996) (internal quotation marks omitted).




                                   - 23 -
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


suffered some adverse employment action . . . ; and (4) that the

position still exists.”10       Id. at 378, 14 P.3d at 1059.

            In the second step, “[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.”

Id.   “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

unlawful discrimination was not the cause of the challenged

employment action.”       Id.   “Although the burden of production is

shifted to the employer, the ultimate burden of persuading the

trier of fact that the employer intentionally discriminated

against the plaintiff remains at all times with the plaintiff.”

Id. at 378-79, 14 P.3d at 1059-60 (alteration omitted) (internal

quotation marks omitted) (quoting Texas Dep’t of Cmty. Affairs

v. Burdine, 450 U.S. 248, 253 (1981)).

            In the third step, “if the employer rebuts the prima

facie case, the burden reverts to the plaintiff to demonstrate


      10
            The fourth element of the McDonnell Douglas prima facie analysis
requires proof “that, after [the complainant’s] rejection, the position
remained open and the employer continued to seek applicants from persons of
complainant’s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S.
792, 802 (1973) (emphasis added). Shoppe does not require the claimant to
provide proof of the qualifications of the applicants that the employer
continued to seek for the position. Shoppe, 94 Hawaiʻi at 378, 14 P.3d at
1059.




                                    - 24 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


that the defendant’s proffered reasons were ‘pretextual.’”             Id.

at 379, 14 P.3d at 1060.      A plaintiff may establish pretext by

“persuading the court that a discriminatory reason more likely

motivated the employer or . . . by showing that the employer’s

proffered explanation is unworthy of credence.”          Id.

                         B. Prima facie case

          In the present case, Adams clearly established a prima

facie case of discrimination and therefore satisfied the first

step of the Shoppe-McDonnell standard.

          At the hearing on the motion for summary judgment, the

circuit court made a specific finding that Adams established a

prima facie case, thus expressly determining that Adams was

qualified for the position.      “This Court . . . concludes that

the plaintiff did meet their [sic] initial burden of

establishing the prima facie showing.”         The court reiterated

this finding in the written order granting the MSJ: “the

[circuit court] finds and orders as follows: That [Adams] has

met her burden of showing a prima facie case of age

discrimination.”

          The record amply demonstrates that Adams clearly

satisfied all four elements of the first prong of the Shoppe-

McDonnell test.    In its Answering Brief to the ICA, CDM argued

that Adams “[i]n particular, [] failed to establish the second

element for a prima facie case, i.e., that she was qualified for


                                  - 25 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


the position for which she applied.”         CDM did not contest the

first, third, and fourth requirements of Adams’ prima facie

case.

             In any event, establishment of the first, third, and

fourth elements are beyond dispute.         First, Adams was fifty-nine

years old at the time when she applied with CDM, so she is part

of a protected class.11      As to the third element, Adams suffered

an adverse employment action when CDM decided not to hire her.

In regard to the fourth element, the position continued to exist

after she received a rejection letter on March 1, 2009, because

later that year CDM hired seven persons as International Media

Sales Executives.

             As to the second element, it is also clear that Adams

was qualified.     CDM argued to the ICA that Adams was not

qualified for the position because she did not have recent or

relevant sales experience.       However, the phone sales position

did not require sales experience.




        11
            The bill enacting RLH § 90A-1 originally included a specific
prohibition on discrimination in hiring of persons between the ages 40-65,
which was later deleted. H. Stand Comm. Rep. Nos. 31 & 80, in 1963 House
Journal, at 591 & 607; S. Stand. Comm. Rep. Nos. 399 & 810, in 1963 Senate
Journal, at 810 & 867. The Senate explained, “The deletion of reference to
ages 40 to 65 is not to be construed . . . as an avoidance [of] the problems
of our older workers, but rather as an attempt to make discrimination on the
basis of age more inclusive by removing specific limitations.” 1963 Senate
Journal at 867. While HRS § 378-2(1) does not specify specific age
limitations, Adams’ inclusion as a protected person was not challenged in
this case.




                                   - 26 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          First, the advertisement CDM posted for the job stated

that sales experience was “preferred,” but not required.            If

sales experience was a “preference” and not a minimum

qualification, then Adams could have had no sales experience and

she still would have been qualified for the job.

          Second, the hiring solicitation posted by CDM promised

extensive training.     “We offer recognized training to build upon

your formal education/experience and teach you the business of

advertising and summit sales in order for you to progress and

build your career quickly.”      “Here are a few key benefits of

working at CDM Media: . . . First-class Sales Training Program

from the best in the industry.”       Similarly, newspaper articles

regarding CDM’s solicitation indicated “[a]ll sales hires will

go through an eight-week comprehensive training course.”            The

offer of extensive training underscores the fact that no sales

experience was required.

          Moreover, Adams had extensive sales experience.             Adams

owned and operated her own marketing company for twelve years,

during which time she “[w]orked directly with owners of

businesses, executives of nonprofits and governmental managers.”

Subsequently, Adams worked for five years with Verizon.            During

that time, Adams worked in both “inside” and “outside” sales.

Viewed in the light most favorable to Adams, this fact was

specifically recognized by CDM when one of its agents made the


                                  - 27 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


hand-written notes “1/2 inside” and “1/2 outside” on Adams’

first email besides the boxed-in words “Verizon/The Yellow

Pages.”   While employed as a sales person at Verizon, Adams won

at least one award specifically for her inside/telephone sales

work.   In addition, Adams won six other awards, all for

outperforming her peers and maintaining consistently positive

sales results.    Adams denied stating that she disliked tedious

work, and thus this evidence is not weighed against Adams on

summary judgment.    Because sales experience was merely

“preferred” and Adams had extensive sales experience, Adams was

qualified for the position and clearly satisfied the second

element of the prima facie test.

           Therefore, because the circuit court made an express

determination that Adams established a prima facie case, and the

evidence in the record, viewed in the light most favorable to

Adams, demonstrates that she met the four elements of the

Shoppe-McDonnell prima facie test, Adams established a prima

facie case of age discrimination.

             C. Legitimate, nondiscriminatory reason

           Once Adams established a prima facie case of age

discrimination, a burden of production shifted to CDM to

“articulate a legitimate, nondiscriminatory reason” for not

hiring Adams.    Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059.




                                  - 28 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           In this case, Willis articulated four reasons in

paragraph 5 of the Declaration for not hiring Adams:

           5.   It was my belief that the Plaintiff was not qualified
                for the job because:
                a.    She had no sales experience in the prior five
                      years;
                b.    As far as I understood, most of her recent
                      (previous 10-15 years) sales experience was in
                      publishing and/or selling phone book
                      advertising which incorporated outside sales
                      and face to face communication;
                c.    As far as I understood, she had little or no
                      sales experience that involved selling to C-
                      Level corporate executives of Fortune 1,000
                      companies; and
                d.    I was advised that she had said that she
                      disliked tedious work.

Accordingly, we consider whether Willis’ Declaration articulates

a legitimate, nondiscriminatory reason for the adverse

employment action.

  1.   Defining “legitimate” in the context of HRS Chapter 378

           “Legitimate” is defined as “lawful,” or “genuine.”

Black’s Law Dictionary 984 (9th ed. 2009).         “[A] ‘legitimate’

reason must be one that is justifiable in view of the purposes

of the [statute].”    Hill v. Mississippi State Emp’t Serv., 918

F.2d 1233, 1243-44 (5th Cir. 1990) (Rubin, J., dissenting).

           In applying the second step of the analysis, “[t]he

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 unlawful

discrimination was not the cause of the challenged employment

action.”   Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059.          However,



                                  - 29 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


if the employer’s articulated reason is not legitimate (or is

discriminatory) or if the articulated reason is not in the form

of admissible evidence, then the burden of production has not

been met.12

                a. Legislative intent of HRS § 378-2

            Legislative history is a valuable indicator of the

purpose of a statute.      “This court’s primary duty in

interpreting and applying statutes is to ascertain and give

effect to the legislature’s intention to the fullest degree.”

Nat’l Union Fire Ins. Co. v. Ferreira, 71 Haw. 341, 345, 790

P.2d 910, 913 (1990); HRS § 1-15(2) (2009) (“The reason and

spirit of the law, and the cause which induced the legislature

to enact it, may be considered to discover its true meaning.”).

In interpreting statutes, “this court ‘must read statutory

language in the context of the entire statute and construe it in

a manner consistent with its purpose.’”          Schmidt v. HSC, Inc.,

131 Hawaiʻi 497, 508, 319 P.3d 416, 426 (2014) (emphasis added)

(quoting Blaisdell v. Dep’t of Pub. Safety, 113 Hawaiʻi 315, 318,

151 P.3d 796, 799 (2007)).

            The purpose of HRS Chapter 378 is to ensure that

hiring criteria are “in accordance with established occupational

      12
            See HRE Rule 301(3); (defining the “burden of producing evidence”
as the obligation of a party to introduce evidence of the existence or
nonexistence of a relevant fact sufficient to avoid an adverse peremptory
finding on that fact”); see also HRE Rule 303(b).




                                   - 30 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


qualifications that are applied equally to all persons.”              1963

Senate Journal at 866.      When the law was initially enacted as

Act 180, section (1)(a) of the law read as follows:

           (1) It shall be unlawful employment practice or unlawful
           discrimination:

              (a) For an employer to refuse to hire or employ or to
                  bar or discharge from employment, any individual
                  because of his race, sex, age, religion, color or
                  ancestry, provided that an employer may refuse to
                  hire an individual for good cause relating to the
                  ability of the individual to perform the work in
                  question . . . .

See 1963 Haw. Sess. Laws Act 180, § 1 at 223, codified at RLH

§ 90A-1, recodified to HRS §§ 378-2 and 378-3 (emphasis added).13

Thus, as enacted, the law explicitly linked the authority to

refuse to hire or discharge to “good cause relating to the

ability of the individual to perform the work in question.”                 As

explained by the Senate committee report, specifically referring

to section (1)(a) of Act 180, the policy supported by the law

was to “afford all persons equal opportunities in employment

. . . with the qualifications of the applicants being the sole

test in selecting employees.”        1963 Senate Journal at 866

(emphasis added).14


     13
            The minority asserts that “the 1963 version [of the statute] was
unclear.” Minority at 25. However, the minority declines to demonstrate the
alleged lack of clarity.
     14
           In full, the passage provides as follows:

           This bill does not give minority group members any special
           privileges in obtaining employment but afford [sic] all
           persons equal opportunities in employment regardless of
           race, sex, age, religion, color or ancestry with the
                                                             (continued. . .)


                                   - 31 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


             Section 1(a) of the bill provides in part that an employer
             may refuse to hire an individual for good cause relating to
             the ability of the person to perform the work in
             question[]. An employer may refuse to hire an individual
             for justifiable and reasonable cause. In this connection,
             the employer may, depending on the job, consider the
             training, experience, intelligence, personality and
             appearance of the applicant where any or all of these
             factors are applied equally to all applicants and are
             determinative in the selection of the best qualified.[15]

Id. at 867 (emphases added) (internal quotation marks omitted).

Chapter 378 therefore does not prohibit an employer from

refusing to hire an individual for reasons that are applied

equally to all applicants and are “relat[ed] to the ability of

the individual to perform the work in question.”            HRS § 378-3(3)

(emphasis added).      Thus, a “legitimate, nondiscriminatory

reason” not to hire a person, in view of the purposes and

statutory provisions of HRS Chapter 378, must be a reason

related to the “ability of the individual to perform the work in

question.”

  b. Subsequent recodification did not alter the intent of the
                            legislature

             RLH § 90A-1 was recodified to HRS Chapter 378 in 1981

and reorganized with the addition of protections for women and

government workers.       1981 Haw. Sess. Laws Act 94, §§ 1-3 at 184-


      (. . .continued)
            qualifications of the applicants being the sole test in
            selecting employees.

1963 Senate Journal at 866.
      15
            Appearance cannot include color or racial characteristics.     1963
Senate Journal at 867.




                                    - 32 -
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


89.   Reformation or reenactment of a statute does not alter the

purpose or intent of a law unless that is the express intent of

the legislature.      Muniz v. Hoffman, 422 U.S. 454, 470 (1975)

(“It will not be inferred that the legislature, in revising and

consolidating the laws, intended to change their policy, unless

such an intention be clearly expressed.” (emphasis added)).

            If a revised statute is ambiguous or susceptible of two
            constructions, reference may be made to the prior statute
            for the purpose of ascertaining intent. But mere
            differences in words or arrangement should not generate an
            inference of legislative intent to change the former rule.
            A revision will not be construed as altering a particular
            statute absent a clear, unmistakable legislative intent.

Le Mars Mut. Ins. Co. of Iowa v. Bonnecroy, 304 N.W.2d 422, 424

(Iowa 1981) (emphasis added) (citations omitted); see also Pye

v. State, 919 A.2d 632, 637 (Md. 2007) (“[A] change in a statute

as part of a general re-codification will ordinarily not be

deemed to modify the law unless the change is such that the

intention of the Legislature to modify the law is

unmistakable.”).

            As stated by the legislature, the purpose of the 1981

revisions was to “extend coverage of Part I (Discriminatory

Practices) of the Employment Practices Act, Chapter 378, Hawaii

Revised Statutes, to Employees of the State and county

governments to help ensure that women are provided equal

treatment in employment when disabled because of pregnancy-

related conditions, and to clarify policies and procedures in

the area of enforcement with respect to unlawful or


                                    - 33 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


discriminatory employment practices.”         H. Stand. Comm. Rep. No.

549, in 1981 House Journal, at 1166 (emphases added).             Thus, the

express intent of the 1981 legislature was to expand the

safeguards offered by the employment discrimination provision of

HRS Chapter 378.     In contrast, the legislative history does not

reveal any intention to alter the fundamental purposes of the

employment discrimination law or to reduce its protections.

Therefore, the 1963 legislative history continues to provide a

significant and reliable averment that the purpose of HRS § 378-

2 is to “afford all persons equal opportunities in employment

. . . with the qualifications of the applicants being the sole

test in selecting employees.”        1963 Senate Journal at 866; see

Muniz, 422 U.S. at 470.

           As recodified, HRS § 378-3(3) preserves the intent of

the legislature.     In the 1981 revision, the legislature shifted

language “provid[ing] that an employer may refuse to hire an

individual for good cause relating to the ability of the

individual to perform the work in question,” 1963 Haw. Sess.

Laws Act 180, § 1 at 223, to “Nothing in this part shall be

deemed to . . . [p]rohibit . . . an employer . . . from refusing

to hire . . . any individual for reasons relating to the ability

of the individual to perform the work in question.”            HRS § 378-

3.   Thus, following the recodification, the substance of the

statute is identical: in 1963 the language provided an exception


                                   - 34 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


to the prohibition against discriminatory hiring or discharging

practices and the language continues to do so in the 1981

revision, underscoring the fact that the legislature has

provided no indication that the purpose of the statute has been

altered.

            Nonetheless, the minority maintains that the purpose

and intent of HRS § 378-2 was transformed based on the 1981

recodification.     Minority at 24-25.      However, the minority does

not provide any legislative history to support its contention

that the 1981 revision was intended to alter the purpose of HRS

Chapter 378.    See Minority at 22-26.       Thus, the interpretation

of the minority must be rejected as the legislature did not

express any intent to change the policy of the statute.             Muniz,

422 U.S. at 470; Le Mars Mut. Ins. Co., 304 N.W.2d at 424 (“A

revision will not be construed as altering a particular statute

absent a clear, unmistakable legislative intent.”).16


      16
            Although the minority contends the 1963 legislative history is
irrelevant, minority at 26-27 n.6, it nevertheless also disputes the
interpretation of certain passages from the 1963 Senate Journal. Id. The
minority argues that statements from the journal “that reference the
qualifications of the applicant,” “when viewed in context, [] appear to be
general statements of support for equal opportunity, and not directives to
employers to base their hiring decisions solely on an applicant’s
qualifications.” Minority at 26 n.6. Respectfully, the legislature’s
statement that “This bill . . . afford[s] all persons equal opportunities in
employment . . . with the qualifications of the applicants being the sole
test in selecting employees,” 1963 Senate Journal at 866 (emphasis added), is
much more than a “general statement of support,” especially when viewed in
conjunction with the specific statutory language adopted by the legislature
in RLH § 90A-1. 1963 Haw. Sess. Laws Act 180, § 1 at 223, recodified at HRS
§§ 378-2 and 378-3.




                                   - 35 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          The minority alternatively argues, “Even if the

Majority is correct that the purpose of the current statute

remains the same as the 1963 version, our plain reading

interpretation of the current statute is consistent with that

legislative purpose when viewed in light of the whole

legislative history.”     Minority at 26 (emphasis added).         The

minority’s argument does not provide the context by which to

understand its reference to the “light of the whole legislative

history” or provide legislative history that contradicts the

1963 legislature’s intent as described above.          Thus, if the

purpose of the current statute “remains the same as the 1963

version,” then the minority’s “plain reading interpretation” of

the current statute is pointedly inconsistent with the “whole

legislative history.”

          Finally, the minority contends that when the 1963

legislature made the statement that the qualifications of the

applicants shall be the sole test in selecting employees,17 “the

legislature was addressing concerns that the statute might

create special preferences (such as hiring quotas) for

minorities.”   Minority at 26 n.6.       The minority does not present

any authority in support of a legislative concern regarding

“special preferences.”     Surely, the right of individuals


     17
          See supra note 14 for the full text of the “sole test” statement.




                                  - 36 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


protected under HRS § 378-2 to expect that their ability to

perform the work in question will be the “sole test” in an

employment decision, subject to the exceptions of HRS § 378-3,

which is not a “special preference” but rather the embodiment of

the protection that HRS Chapter 378 guarantees.

    c.      Principles of statutory construction reinforce the
                         legislature’s intent

            When construing a statute, our foremost obligation is

to ascertain and give effect to the intention of the

legislature, which is to be obtained primarily from the language

of the statute itself.     Kauai Springs, Inc. v. Planning Comm’n

of Cnty. of Kauai, 133 Hawaiʻi 141, 163, 324 P.3d 951, 973

(2014).    We must read statutory language in the context of the

entire statute and construe it in a manner consistent with its

purpose.    Id.   Additionally, “Laws in pari materia, or upon the

same subject matter, shall be construed with reference to each

other.”    HRS § 1-16.   Further, when construing a statute, courts

are “bound to give effect to all parts of a statute, and no

clause, sentence, or word shall be construed as superfluous,

void, or insignificant if a construction can be legitimately

found which will give force to and preserve all words of the

statute.”   Fagaragan v. State, 132 Hawaiʻi 224, 241, 320 P.3d

889, 906 (2014) (citation and alteration omitted).




                                  - 37 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


             HRS §§ 378-2 and 378-3 both concern lawful employment

practices.     Thus, in order to give effect to HRS § 378-2, the

prohibitions of that section must be read together with HRS

§ 378-3.    See HRS § 1-16.      In HRS § 378-3, the legislature has

provided a list of eleven specific exceptions to the employment

discrimination prohibition of HRS § 378-2.           For instance, as

stated, the legislature permits an adverse employment decision

when the reason for that decision is related to the person’s

ability to perform the work in question.           HRS § 378-3(3).     Other

exceptions, inter alia, allow religious organizations to give

employment preference to individuals of the same religion, HRS §

378-3(5), and exempt employers from having to make

“unreasonable” structural changes or “expensive” equipment

alterations to accommodate a person with a disability.18              HRS §

378-3(7).

             Statutory lists may be interpreted under the principle

of expressio unius est exclusio alterius; i.e., the express

inclusion of certain items in a statutory list implies the

exclusion of others and of alternatives.           Fagaragan, 132 Hawaiʻi

at 242, 320 P.3d at 907.        This principle applies equally to a

statutory list of exceptions; when the legislature has created

certain exceptions, “it does not follow that courts have


     18
             For a summary of all the exceptions, see supra note 8.




                                    - 38 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


authority to create others.”      United States v. Johnson, 529 U.S.

53, 58 (2000).    The “proper inference” from a list of exceptions

to a statute is that the legislature “considered the issue of

exceptions and, in the end, limited the statute to the ones set

forth.”   Id.; see also Thurston v. Bishop, 7 Haw. 421, 442 (Haw.

Kingdom 1888) (“The rule of construction, expressio unius est

exclusio alterius, then, ought to exclude all other

exceptions.”).    In Hawaiʻi, the principle of expressio unius est

exclusio alterius is applicable “where in the natural

association of ideas the contrast between a specific subject

matter which is expressed and one which is not mentioned leads

to an inference that the latter was not intended to be included

within the statute.”     Int’l Sav. & Loan Ass’n, Ltd. v. Wiig, 82

Hawaiʻi 197, 201, 921 P.2d 117, 121 (1996).

           Thus, in applying the rule of construction, expressio

unius est exclusio alterius, this court looks to the contrast

provided by the natural association of ideas expressed in the

statutory list.    Id.   Here, there is a decided contrast between

the eleven specific exceptions presented by HRS § 378-3 and

potential exceptions that are not mentioned.          For example, there

is a clear delimitation intended by the legislature’s reference

in HRS § 378-3(5) to “religious or denominational institution[s]

or organization[s],” such that a contrast is clearly implied

that the legislature did not intend that private businesses


                                  - 39 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


could also give employment preference to individuals who share a

common religion or denomination.       Similarly, the legislature’s

use of “unreasonable structural changes or expensive equipment

alterations” in HRS § 378-3(7) describes a standard that

contemplates a clear contrast to reasonable structural changes

or non-expensive alterations of equipment; thus, it may be

inferred that the legislature plainly intended that an

alteration involving a minimal or nominal cost may not be

asserted as a basis to not hire a person with a disability.

           Accordingly, the contrast between the exceptions

listed in HRS § 378-3 and those not listed admits the firm

conviction that the legislature “considered the issue of

exceptions and, in the end, limited the statute to the ones set

forth.”   Johnson, 529 U.S. at 58.       By the same analysis, the

legislature’s permission to allow an employer to refuse to hire,

refer or discharge an individual “for reasons related to the

ability of the individual to perform the work in question,” HRS

§ 378-3(3) (emphasis added), implies a clear contrast to reasons

that have no relation to the ability to perform the job.            Thus,

in accordance with the principle of expressio unius est exclusio

alterius, the exceptions of HRS § 378-3 do not permit an adverse

employment decision to be based on reasons unrelated to the

ability of the individual to perform the work in question.




                                  - 40 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          The minority offers the criticism that our decision

treats HRS § 378-3 “as an exclusive list,” and “the legislature

was merely attempting to ensure that a particular group of key

rights remained protected without listing every possible basis

for an adverse employment decision.”        Minority at 23, 27.      Under

the minority’s reasoning, “[n]othing in either [HRS §§ 378-2 or

378-3] tells the employer that it must limit its hiring

decisions to reasons related to the ‘ability of the individual

to perform the work in question.’”         Minority at 23; see also

minority at 25.    This analysis is flawed for several reasons.

          First, the treatment of the eleven exceptions provided

in HRS § 378-3 as an exclusive list is in full accordance with

the principle of expressio unius est exclusio alterius, based

upon the self-evident contrast between the eleven exceptions

prescribed by HRS § 378-3 and unspecified possible exceptions.

Johnson, 529 U.S. at 58.      Second, if nothing tells the employer

that it must limit its hiring decisions to reasons related to

the ability of the individual to perform the work in question,

then “all” nondiscriminatory reasons are permitted.           If all

nondiscriminatory reasons are permitted, then there would be no

purpose for an exception involving a subset of nondiscriminatory

reasons “relating to the ability of the individual to perform

the work in question.”     See HRS 378-3(3).      Thus, the contention

of the minority renders the exception provided in HRS § 378-3(3)


                                  - 41 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


as superfluous, contrary to our duty to give effect to all parts

of a statute when a construction can be legitimately found that

will give force to and preserve all words of the statute.            See

Fagaragan, 132 Hawaiʻi at 241, 320 P.3d at 906.          Third, it is

plain that by construing the exceptions in HRS § 378-3 to have

unlimited expansion for “possible bas[es]” not listed by the

legislature, the minority’s analysis renders not just HRS § 378-

3(3), but all non-discriminatory exceptions in HRS § 378-3 as

superfluous.   The practical effect of a boundless expansion of

the bases for exceptions listed in HRS § 378-3 is to eliminate

the protections afforded by HRS § 378-2.

          In order to give proper effect to the intention of the

legislature, HRS § 378-2 must be construed in the context of the

entire statute and consistent with its purpose to afford all

persons equal opportunities in employment.         See 1963 Senate

Journal at 866.    When read to limit lawful adverse employment

decisions to those based on reasons related to the ability of

the individual to perform the work in question, both HRS §§ 378-

2 and 378-3(3) are enforced and preserved, in accordance with

the mandate that laws on the same subject “shall be construed

with reference to each other.”       See HRS § 1-16.     Further, when

read in the context of the exceptions provided by HRS § 378-3,

the prohibitory language of HRS § 378-2 is consistent with the

purpose identified in its legislative history “that the


                                  - 42 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


qualifications of the applicants be[] the sole test in selecting

employees.”   1963 Senate Journal at 866; see Kauai Springs,

Inc., 133 Hawai‘i at 163, 324 P.3d at 973.

d. Requirement of a legitimate, nondiscriminatory reason in our
                          prior decisions

           The requirement that legitimate, nondiscriminatory

reasons for an adverse employment action must pertain to the

individual’s inability to perform the work in question is

supported by our prior analysis of HRS § 378-2.          In Shoppe, the

employee, Shoppe, alleged age discrimination when she was

terminated by her employer, Gucci.         Shoppe, 94 Hawaiʻi at 381, 14

P.3d at 1062.    The reason articulated by Gucci for firing Shoppe

was that she was not performing her job in a satisfactory

manner.   Shoppe, 94 Hawaiʻi at 374-76, 381, 14 P.3d at 1055-57,

1062.   Shoppe’s supervisor, Perreira, testified that she had

visited Shoppe’s Maui store and found important inventory

documents lying on the floor, which needed to be filled out and

faxed to the Gucci warehouse on Oʻahu in order for inventory to

be shipped to Maui that day.      Shoppe missed the deadline for

faxing the papers and had done so numerous times, resulting in

Perreira personally reprimanding Shoppe on several occasions for

her tardiness.    Id.

           The reasons Gucci articulated for firing Shoppe were

therefore related to timely report filing, an important function



                                  - 43 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


of Shoppe’s position at Gucci.        Under these circumstances, the

Shoppe court found that Gucci had articulated legitimate

nondiscriminatory reasons:

           [T]here does not appear to be a genuine issue of fact
           regarding Plaintiff’s failure to perform the duties of [a]
           store manager satisfactorily. Therefore Defendants have
           articulated legitimate, nondiscriminatory reasons for the
           adverse employment action against Plaintiff.

Shoppe, 94 Hawaiʻi at 381, 14 P.3d at 1062 (emphases added).                In

other words, because the reasons Gucci articulated for the

adverse employment action were related to Shoppe’s inability to

adequately perform the job in question, Gucci articulated a

legitimate, nondiscriminatory reason for firing Shoppe.

           Similarly, in Simmons v. Aqua Hotels & Resorts, Inc.,

130 Hawaiʻi 325, 310 P.3d 1026 (App. 2013), an employee alleged,

inter alia, age discrimination under HRS § 378-2(1)(A).             Id. at

328, 310 P.3d at 1029.      The reasons given by the employer for

the adverse employment action was that the employee’s position

had been restructured as part of cost-cutting measures following

bankruptcy.19    Id.   The employee was informed she could apply for

the restructured position.       Id. at 327-28, 309 P.3d at 1028-29.

The employee declined to apply and the employer hired a

different person for the new position.          Id.   The ICA found that

the employee established a prima facie case of discrimination.
      19
            The new position was substantively different, including a new
title, redefined job description, different benefits, reduced salary, and
required relocation to Kauaʻi. Simmons, 130 Hawaiʻi at 327, 310 P.2d at 1028.




                                   - 44 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Id. at 330-31, 309 P.3d at 1031-32.         The ICA next found that the

employer met its burden to produce legitimate, nondiscriminatory

reasons for the adverse employment action because the employer’s

restructuring plan eliminated the employee’s original position,

the job description for the new position had been redefined, and

the job holder was required to be readily available on-site.

Id. at 331, 309 P.3d at 1029, 1032.         The reasons provided were

related to a person’s ability to perform the work in question

because they defined the requirements of the job.            Therefore,

the explanation given for the adverse employment action was

legitimate because it was related to the ability of the employee

to perform the work in question.20

            In Dir., Dep’t of Labor & Indus. Relations v. Si-Nor,

Inc., No. 27497, 2009 WL 405926 (App. Feb. 18, 2009) (mem.), an

employee alleged discrimination and a prima facie case of

discrimination was established.21        Id. at *8.    The Hawaiʻi Labor

Relations Board (HLRB) found testimony regarding the employee’s

insubordination and involvement in altercations with others more
      20
            The ICA went on to vacate summary judgment in favor of the
employer because it found genuine issues of material fact as to the
employer’s credibility; that is, the plaintiff had raised a material issue as
to pretext. “Based on this record, a rational fact-finder could infer that
Defendants’ stated reasons for Plaintiff’s termination lacked credibility and
were pretextual.” Id. at 331, 310 P.3d at 1032.
      21
            In Si-Nor, it was alleged that the employer discriminated against
the employee for having reported work place safety issues, in violation of
HRS § 396-8(e)(3). Si-Nor, 2009 WL 405926, at *7-*8. The ICA and the Hawaiʻi
Labor Relations Board applied the three-part Shoppe-McDonnell analysis. Id.
at *8-9.




                                   - 45 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


credible than the employee’s testimony.          Id. at *9. The ICA

determined that “based on the testimony that the HLRB found

credible, [the employer] had legitimate reasons for firing [the

employee].”    Id.   The reasons given by the employer in Si-Nor —

the ability of the employee to work without insubordination and

disruptive altercations — were related to the employee’s ability

to perform the work in question and were therefore legitimate.

           In contrast, this court evaluated the reason

articulated by the employer in Sam Teague, Ltd. v. Hawaiʻi Civil

Rights Commission, 89 Hawaiʻi 269, 971 P.2d 1104 (1999), and

determined that the articulated reason was not legitimate.22                Id.

at 277-79, 971 P.2d at 1112-14.        In Sam Teague, a female

employee was terminated after taking a leave of absence for

pregnancy, in violation of the employer’s policy of not allowing

leave in the first year of employment.          Id. at 272-74, 971 P.2d

at 1107-09.    This court held that the employer’s “no leave”

policy violated Hawaiʻi law and administrative rules that

required employers to provide a leave of absence for a

“reasonable period of time” for “pregnancy, childbirth, or




     22
            In Sam Teague, the employer appealed the decision and award in
favor of the employee by the Hawai#i Civil Rights Commission. The court
analyzed the claims under the Shoppe-McDonnell rubric and the definitions and
requirements of HRS §§ 378-1, -2, and -3. Sam Teague, 89 Hawaiʻi 269, 278-81,
971 P.2d 1104, 1113-16.




                                   - 46 -
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


related medical conditions.”        Id. at 277-79, 971 P.2d at 1112-

14.

             In addition to specifically holding that the policy

was invalid, the court also evaluated the legitimacy of the

employer’s articulated reason for the termination: that the

employee was terminated because she intentionally failed to

disclose her pregnancy before accepting a job where leave was

not permitted in the first year.         Id. at 278-79, 971 P.2d at

1113-14.    The court in Sam Teague found that the “no leave”

policy had not been communicated to the employee, nor was she

informed that the employer’s requested “one-year commitment”

meant “working twelve consecutive months with no extended

leave.”    Id. at 273, 278-79, 971 P.2d at 1108, 1113-14.            The

court found that the employee “could have reasonably believed

that a one-year commitment simply meant that she would remain

employed with the business for at least a term of one year” and

that the employee intended to return to work after the birth of

her child.     Id. at 279, 971 P.2d at 1114.

             Based on those findings, the court concluded that the

employer “failed to establish a legitimate nondiscriminatory

explanation of the adverse employment action.”            Id.   This

conclusion is consistent with the principle that the reason

articulated by an employer is not legitimate when it is not

related to the ability of the individual to perform the work in


                                    - 47 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


question.       That is, because the employee in Sam Teague was able

to perform the job in conformance with the criteria as conveyed

by the employer, the reason given by the employer – that the

employee could not work 12 months consecutively – was unrelated

to the ability of the employee to meet the requirements of the

position as conveyed to the employee.

            Thus, the review of the cases of our courts addressing

the second step of the Shoppe-McDonnell framework reflect that

that the nondiscriminatory reason articulated by the employer

for the adverse employment action must be related to the ability

of the individual to perform the work in question.

           2.     Reasons provided by CDM were not legitimate

            Paragraph (5)(a) of the Declaration states it was

Willis’ belief that Adams was not qualified for the job because

“[Adams] had no sales experience in the prior five years.”23

Under the Shoppe-McDonnell analysis, we are required to

determine whether the fact that “[Adams] had no sales experience

in the prior five years” was a legitimate, nondiscriminatory

reason for CDM not to have hired Adams.          Specifically, the

analysis must consider whether sales experience in the prior



      23
            Willis stated his “belief” that Adams had no sales experience in
the prior five years. Adams’ lack of sales experience in the past five years
was established by Adams’ declaration attached to Adams’ Memorandum in
Opposition to [CDM’s] Motion for Summary Judgment Filed February 21, 2012 and
her resume, which was attached as exhibit 10.




                                   - 48 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


five years was related to Adams’ ability to perform as a

telephone sales person at CDM.

     a. CDM disavowed consideration of “sales experience”

           In determining whether “sales experience in the prior

five years” was related to the ability to perform the duties of

the position, we note that the ultimate decision-maker in this

case, Willis, specifically stated in his Declaration that he

“did not consider any criteria stated in any advertising or

posting in making [his] decision not to hire [Adams].”

(Emphasis added).    However, “sales experience preferred” was one

of the listed “requirements” in the online employment

solicitation published by CDM.       Since “sales experience” was a

“criteria stated in [] advertising,” which Willis expressly

disavowed as a consideration in his decision not to hire Adams,

Willis’ proffered reason not to hire Adams because she had no

sales experience in the prior five years is plainly contradicted

by his own statement that he did not consider sales experience.

           As “sales experience in the past five years” was

refuted as a consideration in the hiring decision by CDM’s own

admission, the criterion was not related to the job in question

and thus was not a legitimate reason for the adverse employment

action.   Therefore, the Declaration’s articulated criterion of

“sales experience in the prior five years” did not satisfy CDM’s




                                  - 49 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


burden to produce a legitimate, nondiscriminatory reason for its

hiring decision in this case.

   b. “Sales experience” was not shown to be related to the
              ability to perform the job in question

           Second, even assuming the proffered justification that

“sales experience in the prior five years” had not been

disavowed by CDM, this justification was not related to an

individual’s ability to perform as a telephone sales person

because it is controverted by the advertised qualifications for

the job.   CDM’s posted solicitation for the position stated

“Sales experience preferred,” but the solicitation did not

indicate that sales experience in the last five years was

required in order to be qualified for the position.

           The justification in the Declaration is also

contradicted by the employee-training program highlighted in

CDM’s posted solicitation.      CDM’s solicitation stated, “We offer

recognized training to build upon your formal

education/experience and teach you the business of advertising

and summit sales . . . .”      “Here are a few key benefits of

working at CDM Media: . . . First-class Sales Training Program

from the best in the industry.”       Similarly, a newspaper article

regarding CDM’s employment solicitation stated “[a]ll sales

hires will go through an eight-week comprehensive training

course.”




                                  - 50 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            “Sales experience in the prior five years” was not

shown to be related to Adams’ ability to perform the duties of a

telephone sales person because CDM’s hiring advertisements

indicated that sales experience was not required to be qualified

for the position and also promised to provide extensive sales

training.   Thus, the criterion of “sales experience in the prior

five years” was not a required qualification for the position,

not a legitimate reason for the adverse employment action, and

not related to Adams’ ability to perform the job in question.

Therefore, CDM failed to meet its burden of production in the

second step of the Shoppe-McDonnell analysis.

 c. “Legitimate” is integral to the Shoppe-McDonnell analysis

            The employer’s burden to articulate a legitimate,

nondiscriminatory reason is not a burden to prove the truth of

the legitimate, nondiscriminatory reason.         That is, the

requirement in the second step is that the “explanation”

articulated be legitimate, Shoppe, 94 Hawaiʻi at 378, 14 P.3d at

1059, not that the employer prove that the reason was true or

correct.

            Further, the evaluation of the legitimacy of the

articulated reason is distinct from an evaluation of the

credibility of a defendant.      The evaluation of the legitimacy of

a nondiscriminatory reason for an adverse employment action in

the context of the Shoppe-McDonnell test is only whether the


                                  - 51 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


reason is related to the ability of the individual to perform

the work in question; in contrast, an evaluation of credibility

looks to whether the reason was believed or is worthy of

credence.    Thus, the evaluation of legitimacy does not transform

the burden to produce a legitimate reason into a burden to prove

that reason.24

            However, the minority would go further, essentially

reading “legitimate” out of the Shoppe-McDonnell test.             See

minority at 16-18.     The minority would hold that “an employer’s

proffered reason must be taken as true.”          Id. at 18, 19

(emphasis added); see also id. at 31 (“[W]e must assume that the

proffered evidence is true.”).        Under the minority’s analysis,

no analysis of the legitimacy of the reason is permissible; a

court is required to accept any nondiscriminatory reason and one

completely unrelated to the qualifications of the individual to

perform the job.     Respectfully, the authority cited for this

proposition, Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993),

and Shoppe, 94 Hawaiʻi at 378, does not mandate unexamined

acceptance of any nondiscriminatory reason.

            Hicks states that in the second step of the McDonnell

Douglas analysis, the employer must “introduce evidence which,


      24
            Thus, the contention of the minority that under this decision the
“burden shifts to the employer-defendant to prove that the reasons for its
decision,” minority at 33, is incorrect.




                                   - 52 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


taken as true, would permit the conclusion that there was a

nondiscriminatory reason for the adverse action.”            Hicks, 509

U.S. at 509 (emphasis in original).         Some examination by the

court is implied by the directive that the evidence presented

must be sufficient to “permit the conclusion.”           See also Texas

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981)

(holding that the “explanation provided must be legally

sufficient to justify a judgment for the defendant” and noting

that the “sufficiency of the defendant’s evidence should be

evaluated” (emphasis added)).25       Similarly, Shoppe states, “The


      25
            The remaining cases cited by the minority do not reduce the
requirement that the legitimate, nondiscriminatory reason “must be legally
sufficient to justify a judgment for the defendant.” Burdine, 450 U.S. at
255 (emphasis added); see Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2
(3d Cir. 1997) (The second step “is satisfied if the defendant articulates
any legitimate reason for the discharge”); Krenik v. Cnty. of Le Sueur, 47
F.3d 953, 958 (8th Cir. 1995) (“In the second part . . . the burden shifts to
the defendant who must . . . produc[e] evidence, ‘that the plaintiff was
rejected . . . for a legitimate, nondiscriminatory reason.’”). Trans World
Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), minority at 28, did not
substantively discuss legitimacy because it did not apply McDonnell Douglas.
The “test is inapplicable where the plaintiff presents direct evidence of
discrimination. . . . In this case, there is direct evidence.” Id. at 121;
see also Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999)
(same) (cited by minority at 30).

            A review of the cases cited by the minority in support of its
argument that an employer’s action may be based on an objectively false but
honestly held belief do not refute the conclusion that the reason articulated
still must be legitimate because legitimacy was not at issue in those cases.
Minority at 35-37; see Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553,
558 (6th Cir. 2009) (plaintiff stipulated that the employer “articulated a
facially legitimate, nondiscriminatory reason for terminating her
employment”); Flores v. Preferred Technical Grp., 182 F.3d 512, 515 (7th Cir.
1999) (articulated reason was insubordination and “[i]nsubordination is a
legitimate, nondiscriminatory reason for firing an employee”). In other
cases cited by the minority, the second prong of the McDonnell Douglas test
was not substantively examined but the articulated reasons were manifestly
legitimate. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-63
(9th Cir. 2002) (articulated reason was that employee violated company
procedures and was dishonest during the ensuing investigation); Tesh v. U.S.
                                                              (continued. . .)


                                   - 53 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


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 unlawful

discrimination was not the cause of the challenged employment

action.”   Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059 (emphasis

added).    Thus, Shoppe, too, indicates that the nondiscriminatory

reason must be evaluated for legitimacy.

             The Shoppe decision undertook just such an analysis:

             Under these circumstances, there does not appear to be a
             genuine issue of fact regarding Plaintiff’s failure to
             perform the duties of store manager satisfactorily.
             Therefore, Defendants have articulated legitimate,
             nondiscriminatory reasons for the adverse employment action
             against Plaintiff.

Shoppe, 94 Hawaiʻi at 381, 14 P.3d at 1062 (emphasis added); see

also Sam Teague, 89 Hawaiʻi at 279, 971 P.2d at 1114 (“Therefore,

[employer] has failed to establish a legitimate

nondiscriminatory explanation of the adverse employment

action.”).     Thus, our examination of legitimacy is consistent

with this court’s prior holdings.

             The minority’s analysis is inconsistent with these

prior decisions.      Our case law has not provided any decision in

which a reason unrelated to the ability of the person to perform


      (. . .continued)
Postal Serv., 349 F.3d 1270, 1272 (10th Cir. 2003) (articulated reason for
termination was that “an investigation revealed that [employee] was dishonest
in pursuing [a] workers’ compensation claim”); Majewski v. Automatic Data
Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001) (articulated reason was
the employee’s “increasingly poor job performance”).




                                    - 54 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


the job has been accepted as satisfying the second step of the

Shoppe-McDonnell analysis.       The minority’s reasoning would

impose new constraints on our law by unreasonably restricting

the power of a court to evaluate the legitimacy of a defendant’s

articulated reason.      Thus, the analysis of the minority is

contrary to Hawaiʻi law that the hiring or discharge decision of

an individual protected under HRS § 378-2 shall be related to

the ability of the person to perform the work in question.

            The minority maintains that the McDonnell Douglas test

represents a “universally accepted framework.”           Minority at 31.

However, McDonnell Douglas has been the subject of significant

academic criticism.26     It has been objected to by prominent state

jurists for its lack of clarity and effect of undermining its

own purpose and provoked a line of criticism over its use in the

summary judgment context.       In Trott v. H.D. Goodall Hosp., 66

A.3d 7 (Me. 2013), Justice Silver wrote separately to reaffirm

his position that the Maine Supreme Court “should not apply the

three-step, burden-shifting [McDonnell Douglas] analysis . . .


      26
            See, e.g., Sandra F. Sperino, Beyond McDonnell Douglas, 34
Berkeley J. Emp. & Lab. L. 257 (2013); William R. Corbett, Fixing Employment
Discrimination Law, 62 SMU L. Rev. 81 (2009); Martin J. Katz, Unifying
Disparate Treatment (Really), 59 Hastings L.J. 643 (2008); Jamie Darin
Prenkert, The Role of Second-Order Uniformity in Disparate Treatment Law:
McDonnell Douglas’s Longevity and the Mixed-Motives Mess, 45 Am. Bus. L.J.
511, 512-15 (2008); Michael J. Zimmer, The New Discrimination Law: Price
Waterhouse Is Dead, Whither McDonnell Douglas?, 53 Emory L.J. 1887, 1930
(2004); Michael Evan Gold, Towards a Unified Theory of the Law of Employment
Discrimination, 22 Berkeley J. Emp. & Lab. L. 175 (2001).




                                   - 55 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


to discrimination claims at the summary judgment stage” because

“it unnecessarily complicates the courts’ already difficult

task.”   Id. at 16 (Silver, J., concurring).         “This rigid and

artificial . . . analysis confuses rather than clarifies the

ultimate issue in employment discrimination cases: whether there

is evidence of discrimination.”       Id. (internal quotation marks

omitted); see Curlee v. Kootenai Cnty. Fire & Rescue, 224 P.3d

458, 463 (Idaho 2008) (concluding that while the burden-shifting

analysis is applicable at trial, it should not be applied at

summary judgment); Heng v. Rotech Med. Corp., 688 N.W.2d 389,

401 (N.D. 2004) (stating that McDonnell Douglas has “little or

no application at the summary judgment stage”).

           Federal jurists, too, have raised similar concerns.

Judge Magnuson of the Eighth Circuit expressed in Griffith v.

City of Des Moines, 387 F.3d 733 (8th Cir. 2004), that “[a]bsent

from [McDonnell Douglas] was any justification or authority for

this scheme” and observed that McDonnell Douglas has “confused

courts across the nation.”      Id. at 740 (Magnuson, J., concurring

specially).   “[C]ourts have failed to thoroughly examine the

language of the statute and congressional intent, and instead

have fought to keep an arbitrary paradigm alive.”           Id. at 747

(emphasis added).    Judge Wood of the Seventh Circuit Court of

Appeals called “attention to the snarls and knots” of the

McDonnell Douglas test, referring to it as an “allemande worthy


                                  - 56 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


of the 16th century.”27      Coleman v. Donahoe, 667 F.3d 835, 863

(7th Cir. 2012) (Wood, J., concurring).          “The original McDonnell

Douglas decision was designed to clarify and to simplify the

plaintiff’s task . . . unfortunately, both of those goals have

gone by the wayside.”      Id.   Judge Hartz of the Tenth Circuit

Court of Appeals stated, “The use of the McDonnell Douglas

framework [] readily lends itself to consideration of

formalities instead of the essence of the issue at hand.”             Wells

v. Colo. Dep’t of Transp., 325 F.3d 1205, 1225 (10th Cir. 2003)

(Hartz, J., concurring).       Judge Tymkovich, also of the Tenth

Circuit Court of Appeals, stated adoption of the McDonnell

Douglas framework “has left the entire area of law confused” and

that the McDonnell Douglas “inquiry distracts the court from

what it should be focusing its attention on: determining whether
                                                                            28
the plaintiff produced sufficient evidence of discrimination.”


      27
            An “allemande” is a dance form associated with Baroque music
originating in Europe in the sixteenth century, often involving lines of
couples dancing with interlocked arms. Allemande, Wikipedia (Feb. 15, 2015,
2:28 PM), http://en.wikipedia.org/wiki/Allemande.
      28
            The Supreme Court has moved away from a burden-shifting framework
in certain types of discrimination cases. In Price Waterhouse v. Hopkins,
490 U.S. 228 (1989), the Court stated that Burdine is inapplicable to prove
sex discrimination when the employer’s motive was a mixture of legitimate and
illegitimate reasons. Id. at 246-47 (plurality opinion); see also Desert
Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (holding that a plaintiff in a
mixed motive case is required to prove his or her case by a preponderance of
the evidence, using direct or circumstantial evidence). Similarly, in Gross
v. FBL Financial Services, Inc., 557 U.S. 167 (2009), when the Court declined
to apply McDonnell Douglas in a mixed-motive, age discrimination complaint
brought under federal law, instead holding that a “plaintiff must prove by a
preponderance of the evidence . . . that age was the ‘but-for’ cause of the
challenged employer decision.” Id. at 177-78.




                                   - 57 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


The Honorable Timothy M. Tymkovich, The Problem with Pretext, 85

Denv. U. L. Rev. 503, 505, 522 (2008).

            The McDonnell Douglas framework, (or, in Hawaiʻi, the

Shoppe-McDonnell test), is an analysis adopted by courts to

apply an anti-discrimination law.        The Shoppe-McDonnell test

does not establish or modify HRS § 378-2, but instead it is a

court-designed tool to effectuate the statute.          Thus, what

constitutes as a legitimate, nondiscriminatory reason under HRS

§ 378-2 ultimately must be discerned by an examination of the

statute, its legislative history, and other principles of

statutory construction.     See Griffith, 387 F.3d at 747

(Magnuson, J., concurring specially).        The relevance of the

manner in which other courts may have interpreted the McDonnell

Douglas framework is limited to the extent that the analyses of

these courts were not designed to give effect to HRS § 378-2 and

did not take into account the purpose and protections afforded

by the Hawaiʻi legislature, which has specifically informed our

analysis.

            The minority’s effective elimination of “legitimate”

from the Shoppe-McDonnell analysis would place Hawaiʻi employees

eligible for protection because of race, sex, sexual

orientation, age, religion, color, ancestry, disability, marital

status, or status as a victim of domestic or sexual violence at

a significant disadvantage.      Under the minority’s analysis, the


                                  - 58 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


employer could posit any nondiscriminatory reason in order to

rebut the plaintiff’s prima facie case, contrary to Hawaiʻi law,

the intent of the legislature, and the prior holdings of this

court, all in defense of a test that, as one jurist phrased it,

“readily lends itself to consideration of formalities instead of

the essence of the issue at hand.”29

    d. Hypotheticals posed by the minority are insubstantial

            The minority posits a series of strained hypotheticals

that it argues would result from a court’s examination of

“legitimate;” however, each lacks substance and is readily

answerable.

            The minority first suggests that “whenever the number

of equally qualified applicants exceeds the number of positions,

those qualified applicants not hired could have a cause of

action” because “the only legitimate hiring consideration is

whether the person is qualified.”         Minority at 37.     However, it

is clear that the purpose of HRS Chapter 378 is not to prohibit

      29
            The requirement that the job selection criteria be related to the
job in question already operates in Title VII of the Civil Rights Act of 1965
prohibiting discrimination in hiring practices based on race, color,
religion, sex, and national origin. That law “proscribes not only overt
discrimination but also practices that are fair in form, but discriminatory
in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “The
touchstone is business necessity.” Id. (emphasis added). Thus, “[i]f an
employment practice which operates to exclude [a racial category] cannot be
shown to be related to job performance, the practice is prohibited.” Id.
(emphasis added). There is no indication that Title VII of the Civil Rights
Act of 1965 has resulted in a flood of spurious claims against employers
based upon the hypothetical scenarios envisioned by the minority, and thus we
are assured that the application of the law enacted by our legislature will
not create such consequences.




                                   - 59 -
      ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


selection among applicants; it is to set forth the acceptable

criteria for selection upon qualifications related to the

position offered.      HRS § 378-3(3) (“Nothing in this part shall

be deemed to . . . [p]rohibit or prevent an employer from

refusing to hire . . . any individual for reasons relating to

the ability of the individual to perform the work in question .

. . .”).    Thus, an employer may select an employee from a pool

of applicants to fill a limited number of positions by comparing

and contrasting job-related qualifications without creating a

cause of action.

            The minority also suggests that under our definition

of legitimate, the employer could not take an applicant’s

“personality” into consideration in its decisions.             Minority at

38.   To the contrary, an individual’s personality may be a

legitimate reason for an adverse employment decision when the

personality trait is related to the ability to perform the work

in question.     On the other hand, an employee’s burden to show

discrimination would be insurmountable if an employer could make

adverse hiring decisions based on personality traits that were

unrelated to the ability to perform the job.30


      30
            A discriminatory basis for an adverse hiring decision could be
readily justified by characterizing the reason as based on “personality.”
Personality embraces a person’s moods, attitudes, opinions, motivations, and
style of thinking, perceiving, speaking, and acting.” Personality, Merriam-
Webster, http://www.merriam-webster.com/dictionary/personality (last visited
December 29, 2014). Thus, if personality was a legitimate reason for an
                                                              (continued. . .)


                                    - 60 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            Similarly, the minority suggests that an employer

could face liability for incorrectly assigning a high score on

an employment exam to the wrong person.          Minority at 38-39.

However, it would seem probable that such an exam would test

qualities related to the ability to perform the work in

question; thus the exam results would be related to the job,

even if mistakenly applied to the wrong individual.31

      3.    Undisclosed criteria may weigh against finding of
                             legitimate

            Although not necessary to its primary holding based on

illegal pregnancy discrimination, this court’s decision in Sam

Teague focused in part on the employer’s failure to inform the

employee of the “no leave” policy or the meaning of the one-year

commitment.    89 Hawaiʻi at 273, 279, 971 P.2d at 1108, 1114.              The

ruling in Sam Teague that failing to communicate the existence

of a job criterion is a factor that weighs against an employer’s

use of that criterion as a legitimate nondiscriminatory reason

for an adverse employment action is consistent with HRS Chapter


      (. . .continued)
adverse action even when unrelated to the position, an employer could decline
to hire a person on the grounds of mannerisms or style that may be culturally
based.
      31
            The minority appears to also assert that test results are hearsay
and are thus precluded from providing a legitimate, nondiscriminatory reason.
Minority at 35. To clarify, an in-court statement based on personal
knowledge of test results is not hearsay. In contrast, if a statement in a
declaration relies upon information provided by another person, as in this
case, it is not based on personal knowledge and is inadmissible as hearsay,
barring an exception to the hearsay rule. See infra, section III.C.5.




                                   - 61 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


378’s purpose of ensuring that employment decisions are made

based on “factors [that] are applied equally to all applicants.”

1963 Senate Journal at 866.

          If an employer discloses the criteria that the

employer actually uses to evaluate candidates, it is more likely

that the employer is applying these criteria to all applicants.

Conversely, “informal, secretive and subjective hiring or

promotion decision processes tend to facilitate the

consideration of impermissible criteria.”         Roberts v. Gadsden

Mem’l Hosp., 835 F.2d 793, 798 (11th Cir. 1988).

          Unpublicized or undisclosed criteria are not likely to

be established occupational qualifications, nor can it be

assumed that they are applied equally to all persons.            See Rowe

v. Gen. Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972)

(recognizing mechanisms for employment discrimination that

involved promotion/transfer criteria “which can be covertly

concealed”); Porter v. Milliken & Michaels, Inc., No. CIV. A.

99-0199, 2001 WL 1315435 (E.D. La. June 28, 2001) (noting that

“[c]ourts have found that informal, secretive and subjective

hiring or promotion decision processes tend to facilitate the

consideration of impermissible criteria”).         Therefore,

undisclosed criteria measuring a person’s ability to perform the

work in question are less likely to form the basis of legitimate

and nondiscriminatory reasons for adverse employment actions.


                                  - 62 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


            Here, “sales experience in the prior five years” was

not publicized or disclosed as a hiring criterion in any

materials in the record other than in Willis’ Declaration.              CDM

presented no evidence that the requirement of “sales experience

in the prior five years” was applied or disclosed to any other

applicant.32    Thus, the criterion of “sales experience in the

prior five years” may have been an informal and undisclosed

hiring criterion applied only to Adams.33         Second, Willis’

Declaration expressly states that he did not use “any criteria

stated in any advertising or posting in making my decision not

to hire [Adams].”     However, the Declaration does not indicate

whether this was also true for other applicants.            Therefore, it

is not clear if the hiring criteria used to evaluate applicants

were publicized or disclosed to any person applying for the

position.    CDM’s rejection of its own publicized hiring criteria

may also indicate that an informal, undisclosed, and

individualized hiring criterion was applied to Adams.

Consequently, the undisclosed hiring criterion relied upon by

CDM to conclude that Adams was unqualified for the position,

      32
            CDM also did not present evidence that sales experience in the
past five years was a usual or customary hiring requirement for the
particular position at issue, for any other position at CDM, or for the
industry in general.
      33
            CDM’s disqualifying criteria - lack of sales experience in the
past five years - correlates exactly with Adams’ actual recent lack of sales
experience and may also indicate that an individualized criterion was applied
to Adams.




                                   - 63 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


which may or may not have been applied to any other applicant,

also weighs against a finding that the proffered reason was a

legitimate, nondiscriminatory reason for the adverse employment

action against Adams.

4.    Additional reasons provided by CDM are inadmissible hearsay

           Willis also set forth three additional reasons for not

hiring Adams, which can be considered collectively.            The Willis

Declaration states:

           5.   It was my belief that the Plaintiff was not qualified
                for the job because:

                       . . .

                 b.    As far as I understood, most of her recent
                       (previous 10-15 years) sales experience was in
                       publishing and/or selling phone book
                       advertising which incorporated outside sales
                       and face to face communication;

                 c.    As far as I understood, she had little or no
                       sales experience that involved selling to C-
                       Level corporate executives of Fortune 1,000
                       companies; and

                 d.    I was advised that she had said that she
                       disliked tedious work.

(Emphases added).

           Affidavits submitted by parties in support of 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.”          HRCP Rule 56(e) (2000)

(emphasis added).     “It is axiomatic that a motion for summary

judgment should be decided on the basis of admissible evidence.”


                                   - 64 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Munoz v. Yuen, 66 Haw. 603, 605, 670 P.2d 825, 826 (1983) (per

curium).

           Thus, “[t]he rule in Hawaiʻi is that an affidavit

consisting of inadmissible hearsay cannot serve as a basis for

awarding or denying summary judgment.”         Hawaii Cmty. Fed. Credit

Union v. Keka, 94 Hawaiʻi 213, 221, 11 P.3d 1, 9 (2000)

(alterations omitted) (internal quotation marks omitted)

(quoting GE Capital Hawaii, Inc. v. Miguel, 92 Hawaiʻi 236, 242,

990 P.2d 134, 140 (App. 1999)); see also HRE Rule 801 (2002);

HRE Rule 802 (1980); Fuller v. Pac. Med. Collections, Inc., 78

Hawaiʻi 213, 224, 891 P.2d 300, 311 (App. 1995) (“[HRCP Rule

56(e)] requires that facts set forth in the affidavits be

admissible in evidence. . . .       These requirements are

mandatory.”).   “A witness may not testify to a matter unless

evidence is introduced sufficient to support a finding that the

witness has personal knowledge of the matter.”          HRE Rule 602

(1992); see also Miller v. Manuel, 9 Haw. App. 56, 66, 828 P.2d

286, 292 (1991) (“Affidavits in support of a summary judgment

motion are scrutinized to determine whether the facts they aver

are admissible at trial and are made on the personal knowledge

of the affiant.”).    Personal knowledge means “the witness

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

has a present recollection of that perception.”          HRE Rule 602

Commentary.


                                  - 65 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


           Therefore, an affidavit from an employer supporting a

motion for summary judgment must be based on personal knowledge

of the matter, i.e., admissible evidence.          “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 unlawful discrimination was

not the cause of the challenged employment action.”            Shoppe, 94

Hawaiʻi at 378, 14 P.3d at 1059 (emphasis added).

           Correlatively, inadmissible evidence or hearsay cannot

support an affidavit in a motion for summary judgment that

purports to show a legitimate, nondiscriminatory reason for an

adverse employment action in a discrimination-based claim

applying the three-part Shoppe-McDonnell analysis.34            Takaki v.

Allied Mach. Corp., 87 Hawaiʻi 57, 69, 951 P.2d 507, 519 (App.

1998) (stating, in the context of discrimination claims based on

race and work injury, “a motion for summary judgment may be

decided only on the basis of admissible evidence”); see also

Lales v. Wholesale Motors Co., 133 Hawaiʻi 332, 361-62, 328 P.3d

     34
            Allowing the decision-maker to rely on asserted third-party
knowledge would shield the employer from discriminatory acts of anyone
surrounding the ultimate decision-maker, even if those actions were designed
and intended to result in an adverse employment action. See Staub v. Proctor
Hosp., 131 S. Ct. 1186, 1189, 1193 (2011) (finding that, under a “cat’s paw”
theory, an employer was not shielded from the discriminatory actions of an
employee’s supervisors — even if they were not the ultimate personnel
decision-makers — if the ultimate decision-maker made a decision based on
negative reports by the discriminatory supervisors that were put in the
employee’s personnel file specifically with the intent of getting the
employee fired).




                                   - 66 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


341, 370-71 (2014) (discussing how, in the context of the third

step of the Shoppe-McDonnell analysis of discrimination claims

based on retaliatory discharge under HRS § 378-2(2), evidence

must be admissible in order to be relied upon in a HRCP Rule

56(e) motion for summary judgment).

          If a legitimate, nondiscriminatory reason could be

shown by evidence not based on personal knowledge and the

plaintiff was unable to demonstrate pretext in the third step of

the Shoppe-McDonnell test, the consequence would be that a

motion for summary judgment would be granted based on

inadmissible evidence, contrary to the fundamental law of this

jurisdiction.   See HRCP Rule 56(e) (“Supporting and opposing

affidavits [in a motion for summary judgment] . . . shall set

forth such facts as would be admissible in evidence . . . .”);

Fuller, 78 Hawaiʻi at 224, 891 P.2d at 311 (“[T]he circuit courts

should ascertain whether a foundation has been established for

the admissibility of evidence offered in support of the motion

before an order granting summary judgment is filed.”); Munoz, 66

Haw. at 605, 670 P.2d at 826; Keka, 94 Hawaiʻi at 221, 11 P.3d at

9; Miller, 9 Haw. App. at 66, 828 P.2d at 292.          Thus, the

principle that evidence supporting a motion for summary judgment

must be admissible applies in a motion for summary judgment upon

a discrimination-based claim as it does in any other motion for

summary judgment.


                                  - 67 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


          In the Willis declaration, subparagraphs (b) and (c)

begin with the following: “[a]s far as I understood,” which

indicates that the basis for the information is from an

unidentified third person or external source.          Likewise,

subparagraph (d) states: “I was advised,” again indicating that

the source of the information is an unidentified third party.

The reasons stated in subparagraphs (b), (c), and (d) of Willis’

Declaration do not demonstrate that they are based on Willis’

personal knowledge because the bases for the information are

unidentified third persons or external sources.          Therefore, the

proffered reasons in subparagraphs (b), (c), and (d) are not

admissible statements and, accordingly, do not articulate

legitimate, nondiscriminatory reasons for the adverse employment

action against Adams.

          Further, the facts of the case belie that Willis’

statements were based on “personal knowledge,” as asserted by

the minority.   Minority at 34-35.       A mere recitation that the

witness “understood” or was “advised” of a fact is insufficient,

in itself, to establish that the witness perceived the facts for

which testimony is offered, i.e. that the testimony is based on

personal knowledge.     See Addison M. Bowman, Hawaiʻi Rules of

Evidence Manual § 602-1[3] (2014-15 ed.) (finding testimony of a

person on Oʻahu regarding weather on the Big Island is

objectionable on lack of personal knowledge grounds); State v.


                                  - 68 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Apollonio, 130 Hawaiʻi 353, 362, 311 P.3d 676, 685 (2013)

(striking testimony of a witness where nothing in evidence would

support a finding that the witness had personal knowledge of the

fact at issue).

             Here, it is uncontroverted that Willis never met

Adams; Adams’ only interview was with Bera, CDM’s Human

Resources Director.35      According to CDM’s established hiring

procedure, Bera “host[ed] the first round of interviews and

review[ed] all candidates that came in for [an] interview and

narrow[ed] down the list of potential candidates to meet with

[Willis].”     (Emphasis added).      Thus, based on established hiring

procedures and the fact that Adams only met with Bera, Willis’

two statements indicating “as far as I understood” and the

statement “I was advised” are clearly not based on Willis’

personal knowledge.       Further, it would appear that Bera had

significant input in the decision not to hire Adams, if he did

not make the decision outright.

             Additionally, Willis’ Declaration states in paragraph

six that CDM did not hire any younger applicants with equal or

lower qualifications for the position.          Although not

specifically stated as a reason for Adams not being qualified

for the position, paragraph six is entirely conclusory, and no


     35
             The record does not contain a declaration from Bera.




                                    - 69 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


admissible evidence was adduced to establish this “fact.”36

“Ultimate or conclusory facts or conclusions of law are not to

be utilized in a summary judgment affidavit.”           Miller, 9 Haw.

App. at 66, 828 P.2d at 292.       Accordingly, Willis’ statement

that no younger, equally or less qualified applicants were hired

cannot form the basis of a legitimate reason not to hire Adams.

            The minority acknowledges that “[a]n employer

satisfies this second step through admissible evidence of the

employer’s reason for its decision.”         Minority at 18 (emphasis

added).    The minority does not assert that Willis had any

interaction with Adams or contest that Willis must have obtained

the information contained in subparagraphs (b), (c), and (d) of

his Declaration from some other source.          According to the

minority, these subparagraphs “were offered for the limited non-

hearsay purpose of articulating a reason why he made the

decision not to hire Adams.”       Id. at 34-35.      Thus, as the

minority contends that subparagraphs (b), (c), and (d) of the

Willis Declaration are admissible non-hearsay, the minority is

asserting that the statements in Willis’ Declaration were not

offered for the truth of the reasons contained within those




      36
            That is, there was no admissible evidence as to any actual sales
experience of the hired applicants, or whether any such experience occurred
within the past five years.




                                   - 70 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


statements but only to demonstrate that Willis had reasons for

his decision.

          However, the minority also insists the reasons

proffered by the employer “must be taken as true,” minority at

18-19, without evaluation of the substance of those reasons.

See, e.g., id. at 32 (“[W]e must assume that the proffered

evidence is true.”).     If the reasons proffered by a defendant-

employer must be taken as true, then the argument of the

minority that the employer’s reasons are not offered for their

truth, is logically precluded.

          Additionally, if the proffered reasons are not offered

for their truth and only offered to demonstrate that the

employer had a legitimate reason, then a plaintiff could never

prove pretext in the third step of the Shoppe-McDonnell test.

That is, if the proffered reason is not offered for its truth,

then it could not be shown as a pretext for discrimination

because it was not offered as a true reason for the defendant-

employer’s action.

          It is manifest that the reasons of the employer are

proffered for their truth, as it is unassailable that a court

would not accept as a legitimate, nondiscriminatory reason the

bare statement by an employer that an individual was not hired

because of an unspecified reason.        Rather, an employer’s

statement could only provide a legitimate, nondiscriminatory


                                  - 71 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


reason to the court if the employer identifies and provides the

basis for that reason.      Here, the substantive reasons proffered

were that Adams’ previous sales experience was in outside sales,

Adams had little to no experience selling to C-level corporate

executives, and Adams had said she disliked tedious work.             These

statements were offered upon a central disputed issue in the

summary judgment proceeding for application in the second prong

of the Shoppe-McDonnell test and were intended by the employer

to be duly considered by the trial court as CDM’s articulation

of its legitimate, nondiscriminatory reasons for not hiring

Adams.37   Consequently, in compliance with our law of summary

judgment, Willis was required to have personal knowledge of the

matters asserted in his statements in order to satisfy the

burden of production imposed on CDM.

            The minority further indicates that Willis’

Declaration was admissible “even if the . . . reasoning is based

on third-party information.”       Id. at 35 (emphasis added).

However, there is no alternate standard by which evidence is

admitted under the Shoppe-McDonnell test.          If the statement of a

      37
             In applying the second step of the Shoppe-McDonnell analysis,
the trial court was not required to ascertain whether Adams’ previous sales
experience was actually in outside sales, whether Adams had little to no
experience selling to C-level corporate executives, or whether Adams had said
she disliked tedious work; instead, assuming those reasons were provided in
admissible form, the trial court only needed to consider whether the
defendant-employer satisfied its burden of production to show that the
reasons provided were both non-discriminatory and related to Adams’ ability
to perform the work in question.




                                   - 72 -
       ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


party is offered to prove the truth of the matter asserted, the

report from a party not present in the court — i.e. “third-party

information” — remains inadmissible.           HRE Rules 801, 802.      The

undisputed facts are that Willis had no interaction with Adams.

As Willis could only have gained the information in his

declaration from Bera, his declaration is based on third-party

information; it is thus hearsay and is inadmissible.38              HRE Rule

802.

             The minority does not contend that Willis’ statements

would be admissible at trial.          If Willis were to testify at a

trial, he could only testify that he had acted based on
       38
            The cases cited by the minority do not reduce the requirement
that the evidence submitted must be admissible. See minority at 35 (citing
Rivera v. City & Cnty. of Denver, 365 F.3d 912 (10th Cir. 2004)); McDonald-
Cuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096 (10th Cir. 2011)).
In both cases, the second step of the McDonnell Douglas test was not in
dispute; thus in neither case did the court examine the admissibility of the
evidence supporting the legitimate, nondiscriminatory reason. Rivera, 365
F.3d at 920 (“[W]e address only the issue of pretext.”); McDonald-Cuba, 644
F.3d at 1102 (analyzing only the pretext issue).

            Furthermore, in neither case was the personal knowledge of the
defendant regarding the relevant information disputed. In Rivera, a city
worker was disciplined for falsifying a work report. The minority seizes on
the fact that the supervisor “was informed” of certain information; however,
the information of which the supervisor “was informed” related to information
supporting the falsity of the report. Rivera, 365 F.3d at 918. The
supervisor based his actual decision on “all of the information before him,”
consisting of six specific reasons, including the supervisor’s own
calculations. Id. at 919.

            Similarly, in McDonald-Cuba, the plaintiff-employee formed a
company that she registered on the Central Contracting Registry (CCR), a
database for government contractors, where it was identified as performing
security guard services. McDonald-Cuba, 644 F.3d at 1099. The employer
company president “discovered the CCR printout” and determined there was a
“huge conflict of interest” from plaintiff’s competing business and promptly
terminated the employee. McDonald-Cuba, 644 F.3d at 1099, 1103. Nothing in
McDonald-Cuba suggests the defendant lacked personal knowledge regarding the
plaintiff’s competing business.




                                     - 73 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


information provided to him without describing the substance of

that information.    The information itself would be admissible

only through another witness with personal knowledge.            Thus, the

contention of the minority that hearsay is admissible for the

“limited non-hearsay purpose” of articulating a legitimate,

nondiscriminatory reason for an adverse employment action is

contrary to HRCP Rule 56(e), which governs summary judgment

proceedings and unequivocally requires “facts as would be

admissible in evidence.”      HRCP Rule 56(e) (2000) (emphasis

added).

           Affidavits or testimony pertaining to employment

discrimination are not exceptions to the rule disallowing

hearsay.   HRE Rule 802.    As stated, allowing summary judgment to

be rendered on evidence that includes inadmissible hearsay is

contrary to Hawaiʻi law.     See Munoz, 66 Haw. at 605, 670 P.2d at

826; Takaki, 87 Hawaiʻi at 69, 951 P.2d at 519; Lales, 133

Hawaiʻi at 361-62, 328 P.3d at 370-71.        The minority’s analysis,

therefore, would create an exception with regard to employment

discrimination claims, allowing summary judgment to be based on

an affidavit that was premised upon inadmissible hearsay

statements.   This would create a lower standard for evaluating

employment discrimination claims, contrary to the purpose of the

law to “protect and safeguard the right and opportunity of all




                                  - 74 -
    ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


persons to seek . . . employment . . . without discrimination.”

1963 Senate Journal at 866.

          Weakening the evidentiary standard in this context

would create an additional layer of confusion to this already

complicated test and weaken the ability of individuals to avail

themselves of the protection of our laws; a danger that has been

previously recognized.     See H.D. Goodall Hosp., 66 A.3d at 16

(Silver, J., concurring) (criticizing the use of the McDonnell

Douglas test in summary judgment); City of Des Moines, 387 F.3d

at 740 (Magnuson, J., concurring specially) (same); Coleman, 667

F.3d at 863 (Wood, J., concurring) (same); Colo. Dep’t of

Transp., 325 F.3d at 1225 (Hartz, J., concurring) (same); see

also Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. at

505, 522 (2008).

   5.   CDM did not articulate a legitimate, nondiscriminatory
                              reason

          In summary, the justification of “no sales experience

in the prior five years” was not related to Adams’ ability to

perform as a telephone sales person at CDM because it was

negated as a hiring criterion by Willis, and it was controverted

as a required qualification for the position by statements in

the solicitation.    “Sales experience in the prior five years”

also may have been an undisclosed hiring criterion that may have

been applied only to Adams.      The remaining reasons proffered by




                                  - 75 -
     ***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***


Willis’ Declaration in subparagraphs (b), (c), and (d) were

inadmissible statements that may not be considered by a court.

Therefore, we conclude that CDM did not satisfy its burden to

produce a legitimate, nondiscriminatory reason for declining to

hire Adams as an International Media Sales Executive.39

                             IV. Conclusion

            Based on the foregoing reasons, the ICA erred in

affirming the circuit court’s granting of summary judgment.                 The

ICA’s November 21, 2013 Judgment on Appeal and the circuit

court’s July 24, 2012 Final Judgment are vacated, and this case

is remanded to the circuit court for further proceedings

consistent with this opinion.

Charles H. Brower                        /s/ Sabrina S. McKenna
for petitioner
                                         /s/ Richard W. Pollack
Diane W. Wong
for respondent                           /s/ Steven S. Alm




      39
            Adams presented a prima facie case of age discrimination and CDM
failed to satisfy its burden to produce a legitimate, nondiscriminatory
reason for not hiring Adams. As no legitimate reason was adduced, we need
not address pretext in the third step of the Shoppe-McDonnell analysis.




                                   - 76 -
