Corporate, Litigation, and Labor & Employment Lawyers

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Hawaii Employment Law Decisions May 8, 2016 to May 14, 2016 – Jeffrey S. Harris


District court improperly granted summary judgment against Title VII claims based on judicial estoppel, because employee listed claims on her amended bankruptcy petition.  Henderson v. Bonaventura, 2016 U.S. App. LEXIS 8838 (9th Cir. May 13, 2016).

District court properly granted summary judgment against claim employer violated collective bargaining agreement, because union did not breach duty of fair representation to groundskeeper by investigating his discharge grievance, carrying it through steps of grievance procedures, negotiating a settlement which he did not accept and deciding not to proceed to arbitration based on counsel's evaluation.  Groundskeeper's long history of inappropriate and harassing comments was legitimate non-discriminatory reason for termination and he offered no evidence of pretext.  Gazzano v. Stanford Univ., 2016 U.S. App. LEXIS 8745 (9th Cir. May 12, 2016).

District court properly instructed jury to consider whether former employee's impairment limited major life activities of both working and manual tasks, to avoid confusion. The verdict form made it clear he could establish substantial limitation of neither.  District court did not abuse discretion by excluding report by Department of Labor Office of Federal Contract Compliance and testimony of the report's authors, because their findings embraced issues jury would decide and was overly prejudicial.  District court did not abuse discretion by excluding testimony from one supervisor as cumulative of other evidence.  Carvajal v. Pride Indus., 2016 U.S. App. LEXIS 8751 (9th Cir. May 12, 2016).

Employee timely filed claim for disability benefits under Longshore and Harbor Workers' Compensation Act, within one year after he became aware his work caused a second, cumulative traumatic injury resulting in impairment of his earning power.  Claimant's injury was permanent, rather than temporary, disability, because there was no actual or expected improvement after normal and natural healing period, regardless of whether future surgery would ameliorate condition.  SSA Terminals and Homeport Ins. Co. v. Carrion, 2016 U.S. App. LEXIS 8637 (9th Cir. May 11, 2016).

District court did not abuse discretion by refusing to certify proposed class of registered dieticians in suit claiming misclassification under California overtime law.  The dieticians' actual job duties were not common, because they exercised varying levels of discretion and independent judgment.  Some could change their patients' diet plans without input or approval from a physician, while others could not; some of their diet orders were effective without physician approval, while others needed physician approval and some could deviate from company protocols while others could not.  District court did not err by granting summary judgment the proposed class representative was exempt from California overtime laws as a professional employee.  She spent approximately 85 percent of her time providing nutrition education and counseling based on individualized patient dietary needs; monitoring nutritional status, laboratory values, dialysis kinetics, adherence and response to dietary and/or nutrition therapy; evaluating outcomes and making modifications; assessing nutritional status of patients and developing short and long term treatment goals; and developing an individual dietary plan for each patient. In performing these duties, she exercised sufficient discretion and independent judgment in the realm of nutrition.  Employees do not need final decision making authority to fall under the professional exemption. Regulations addressing the exempt status of registered nurses and cases interpreting those regulations are irrelevant to registered dietitians. Policies and procedures promulgated by the employer do not, as a matter of law, indicate a lack of discretion and independent judgment.  Rosenberg v. Renal Advantage, Inc., 2016 U.S. App. LEXIS 8586 (9th Cir. May 10, 2016).

District court erred by holding it lacked subject matter jurisdiction over claim under American with Disabilities Act, based on former employee's failure to exhaust remedies available under Department of Transportation regulations which never mention the court's jurisdiction. District court should resolve any disputed material facts related to exhaustion, and consider whether to exercise  discretion to excuse exhaustion or to invoke doctrine of primary jurisdiction.  Marshall v. Gordon Trucking, Inc., 2016 U.S. App. LEXIS 8526 (9th Cir. May 9, 2016).


City and County of Honolulu violated Hawaii constitutional merit principles and civil service laws by discontinuing frontloader refuse collection services to multi-unit residential buildings and non-profit organizations.  Privatization includes government shedding services, not only transferring services to private employees under a government contract.  Under the nature of service test, frontloader crew leader and collection positions were within the civil service, regardless of whether government contracted private haulers to perform the services, public workers were displaced or private workers historically provided the same services.  The legislature must enact a statute expressly authorizing privatization of a service to make it lawful.  The case did not involve a non-justicable political question.    Salera v. Caldwell, 2016 Haw. LEXIS 113 (Hi Sup. Ct. May 11, 2016).

Note: We analyze cases to learn rules the courts will follow or disappoint us if they don't. Rules that the courts follow allow us to behave and provide explanations they accept. But competent advocates may limit the rules to the facts of the case where they are discussed, or expand rules by showing that differences in other cases are irrelevant.