Carabbacan v. Outrigger Canoe Club

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
21-MAY-2024
08:01 AM
Dkt. 68 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI‘I

CELSO D. CARABBACAN, Plaintiff-Appellant,
v.
OUTRIGGER CANOE CLUB, a Hawai‘i Corporation, Defendant-Appellee,
and
JOHN DOES 1-5, JANE DOES 1-5, DOE CORPORATIONS 1-5,
DOE LLCS 1-5, DOE PARTNERSHIPS 1-5, DOE NON-PROFIT
ORGANIZATIONS 1-5, AND DOE GOVERNMENTAL AGENCIES 1-5, Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 16-1-1179)

SUMMARY DISPOSITION ORDER
(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.)

This appeal concerns whether summary judgment was
properly granted in an employment discrimination case based on
age and/or ancestry under Hawaii Revised Statutes (HRS) § 378-2. 1

1 HRS § 378-2 (2015) makes it an "unlawful discriminatory practice"
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" based
on, inter alia, age or ancestry. HRS § 378-2(a)(1)(A).
NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Plaintiff-Appellant Celso D. Carabbacan (Carabbacan)
appeals from the May 18, 2018 "Order Granting [Defendant-
Appellee] Outrigger Canoe Club's [(Outrigger)] Motion for
Summary Judgment Filed On February 23, 2018" (Order Granting
MSJ); and June 6, 2018 Final Judgment entered by the Circuit
Court of the First Circuit (Circuit Court). 2
On appeal, Carabbacan contends the Circuit Court erred
in granting Outrigger's Motion for Summary Judgment (MSJ) by
concluding that Carabbacan "failed to establish a prima facie
case of employment discrimination[.]" 3
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised, we resolve
Carabbacan's contention as follows, and affirm.
Following an April 18, 2018 hearing on Outrigger's
MSJ, the Circuit Court granted the motion. The May 18, 2018
Order Granting MSJ stated:
The Court finds that [Carabbacan] has failed to establish a
prima facie case of employment discrimination based on
personal knowledge, direct or circumstantial evidence,
reasonable inference, or other admissible evidence. With
respect to [Carabbacan's] claim his hours were reduced
[(discriminatory reduction in hours claim)], [Carabbacan]
has failed to provide admissible evidence to show any
similarly situated younger or non-Filipino employee(s) did
not also have their hours reduced. With respect to
[Carabbacan's] claim his termination was discriminatory
[(discriminatory termination claim)], [Carabbacan] has
failed to provide admissible evidence that the position
[Carabbacan] held continued to exist after his termination.

2 The Honorable Jeffrey P. Crabtree presided.

3 In Carabbacan's second point of error, after acknowledging that
the Circuit Court "did not reach" Carabbacan's claim that Outrigger's
termination of Carabbacan for insubordination was pretextual, Carabbacan
nevertheless addresses the "pretext" issue in anticipation of Outrigger's
argument to affirm summary judgment on this basis. We need not address this
point of error.

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Following the entry of Final Judgment in favor of
Outrigger, Carabbacan timely appealed.
"We review a circuit court's award of summary judgment
de novo under the same standard applied by the circuit court."
Adams v. CDM Media USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81
(2015) (quoting Shoppe v. Gucci Am., Inc., 94 Hawai‘i 368, 376,
14 P.3d 1049, 1057 (2000)) (internal quotation marks omitted).
When analyzing a claim of discrimination that relies on
circumstantial evidence, Hawai‘i courts engage in a three-step
analysis, where (1) "the plaintiff must establish a prima facie
case of discrimination" (Step 1); (2) once plaintiff meets this
burden, "the burden of production shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the
adverse employment action"; and (3) "if the employer rebuts the
prima facie case, the burden reverts to the plaintiff to
demonstrate that the defendant's proffered reasons were
'pretextual.'" Id. at 13-14, 346 P.3d at 82-83 (quoting Shoppe,
94 Hawai‘i at 378-79, 14 P.3d at 1059-60).
Here, Carabbacan acknowledges that because the Circuit
Court ruled that Carabbacan failed to present a prima facie case
under Step 1, "the burden shifting analysis of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973),/Shoppe v. Gucci Am., Inc.,
94 Hawai‘i 368, 376, 14 P.3d 1049, 1057 (2000)/Adams v. CDM Media
USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81 (2015), did not
come into play." We likewise focus our review on whether
Carabbacan established a prima facie case of discrimination
under Step 1.
To establish a prima facie case of discrimination for
Step 1, a plaintiff must show, by a preponderance of evidence,
the following four elements: "(1) that plaintiff is a member of
a protected class; (2) that plaintiff is qualified for the

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position for which plaintiff has applied; (3) that plaintiff has
suffered some adverse employment action; and (4) that the
position still exists." Adams, 135 Hawai‘i at 13, 346 P.3d at 82
(cleaned up). As to the fourth element (Element 4) in cases
where a plaintiff alleges an adverse employment action but has
"continued to be employed by the employer, the plaintiff may
satisfy the fourth element of the prima facie case of
discrimination by demonstrating that a similarly situated
employee outside of [the plaintiff's] protected class was
treated more favorably." Kaloi v. Cnty. of Hawai‘i,
No. CAAP-XX-XXXXXXX, 2016 WL 3199477, at *3 (Haw. App. June 8,
2016) (mem. op.) (citations omitted).
Here, the Circuit Court's "prima facie case of
discrimination" analysis turned on Element 4 for both
Carabbacan's discriminatory reduction in hours claim and his
discriminatory termination claim. See Adams, 135 Hawai‘i at 13,
346 P.3d at 82.
1. Whether Carabbacan presented evidence for
Element 4 of his discriminatory reduction in
hours claim that a similarly situated employee
outside of Carabbacan's protected class was
treated more favorably.
The Circuit Court concluded that Carabbacan "failed to
provide admissible evidence to show any similarly situated
younger or non-Filipino employee(s) did not also have their
hours reduced."
In his Opening Brief, Carabbacan concedes that the
Circuit Court's conclusion above "is true[,]"and that he did
"not produce[] any evidence that he was the only busser whose
hours were reduced from 32 per week to 17.5 per week." Instead,
he argues on appeal that "that is not what must be proven"
because "[a] plaintiff must show that another employee, outside

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his class, was treated more favorably." This argument lacks
merit.
Carabbacan's Complaint alleged that he "was subjected
to unequal terms and conditions of employment including having
his hours reduced"; that "[c]o-workers who were younger and not
of the same ancestry and national origin as [Carabbacan]
received more favorable treatment by not having hours reduced";
and that Carabbacan "suffered discrimination in terms,
conditions, and privileges of his employment due to his national
origin and age" under HRS § 378-2. See Complaint ¶ 11.b.,
11.c., and 13 (emphases added). Carabbacan claimed that when he
asked Outrigger's General Manager why his hours were reduced, he
was told that everyone's hours were reduced.
Outrigger moved for summary judgment on Carabbacan's
claim in his Complaint paragraph 11.c., that he was treated
differently than younger and/or non-Filipino employees because
his hours were reduced. Outrigger argued "Carabbacan has no
evidence his hours were reduced because of his age or
ancestry[.]"
HRS § 378-2 prohibits discrimination in the terms and
conditions of employment. Under Kaloi and HRS § 378-2, Element
4 may be proved "by demonstrating that a similarly situated
employee outside of [a plaintiff's] protected class was treated
more favorably" with respect to a term and condition of
employment. Kaloi, 2016 WL 3199477, at *3 (citations omitted).
Carabbacan's Complaint alleged, under Kaloi and HRS § 378-2,
that "[c]o-workers who were younger and not of the same
ancestry" as Carabbacan "received more favorable treatment by
not having hours reduced . . . ." See Complaint ¶ 11.c.
Carabbacan's Complaint alleged that the "unequal term[] and
condition[] of employment" was "having his hours reduced

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. . . ." See Complaint ¶ 11.b. Thus, the language of HRS
§ 378-2 and Carabbacan's own Complaint do not support
Carabbacan's argument on appeal that he need only show that an
employee outside his protected class "was treated more
favorably[,]" untethered from any term and condition of
employment such as the claimed reduction in hours. See Kaloi,
2016 WL 3199477, at *3.
On this record, the Circuit Court did not err in
granting summary judgment as to Carabbacan's discriminatory
reduction in hours claim for failure to establish a prima facie
case. See Adams, 135 Hawai‘i at 12, 346 P.3d at 81.
2. Whether Carabbacan presented evidence for
Element 4 of his discriminatory termination
claim that Carabbacan's position still existed
when he was terminated.
The Circuit Court concluded that Carabbacan "failed to
provide admissible evidence that the position [Carabbacan] held
continued to exist after his termination."
The record reflects that Carabbacan was terminated on
January 16, 2015. In his declaration in opposition to the MSJ,
Carabbacan stated:
10. On Saturday, January 3, 2015, I received a call that
business was slow and I should not come to work, even
though I was scheduled to work.

11. I went in to work anyway, and [the manager] was mad
that I came to work. I saw that a new young Mexican boy
was working my position at a big wedding party.
(Emphases added.)
To establish a prima facie case, Carabbacan must show
by a preponderance of evidence that his position still existed
when he was discharged. See Adams, 135 Hawai‘i at 13, 346 P.3d
at 82. In his Opening Brief, Carabbacan does not point to any
evidence in the record to support his argument that Carabbacan's
position still existed as of the January 16, 2015 termination

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date. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule
28(b)(7) (requiring argument to contain citations to parts of
the record relied on). Carabbacan's statement that he saw a
"new" person working in "[his] position" on January 3, 2015, is
conclusory and does not show that Carabbacan's "position still
exist[ed]" when Carabbacan was discharged thirteen days later on
January 16, 2015. See Adams, 135 Hawai‘i at 13, 346 P.3d at 82.
Carabbacan does not include the date of hire of the unnamed "new
young Mexican" co-worker anywhere in his Opening Brief, nor does
he point to evidence of such date of hire in the record.
Instead, Carabbacan relies on improper inferences rather than
evidence, 4 which are insufficient to meet the preponderance of
the evidence standard for a prima facie case of discrimination.
See Adams, 135 Hawai‘i at 13, 346 P.3d at 82.
On this record, the Circuit Court did not err in
granting summary judgment as to Carabbacan's discriminatory

4 Carabbacan points to an "inference" rather than evidence, to
support his argument that Carabbacan's position still existed as of the
termination date, as follows:

On January 3, 2015, [Carabbacan] was told that there was no
work for him, but when he came in anyway, he found a young,
recently hired Mexican working his shift. There was no
evidence that [Carabbacan] was terminated a [sic] part of a
reduction in force. The alleged reason for the termination
given by OUTRIGGER was "insubordination." Indeed, rather
than a reduction in force, the hiring of the young Mexican
is evidence that the force of bussers was either being
increased, or the Mexican was hired in advance specifically
as a replacement for [Carabbacan]. The position of busser
is not a unique position for a canoe club operating a
restaurant/wedding party facility. There are many people
holding that position. The position of busser is an
essential position at a canoe club operating a restaurant
wedding party facility. The simple fact that OUTRIGGER had
recently hired a new busser is ample evidence to support an
inference that the position still existed as of the date of
termination.

Opening Brief at 14-15 (emphasis and bolding added).

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termination claim for failure to establish a prima facie case.
See id. at 12, 346 P.3d at 81.
For these reasons, the May 18, 2018 "Order Granting
Defendant Outrigger Canoe Club's Motion for Summary Judgment
Filed On February 23, 2018" and June 6, 2018 Final Judgment
entered by the Circuit Court of the First Circuit are affirmed.
DATED: Honolulu, Hawai‘i, May 21, 2024.
On the briefs:
/s/ Clyde J. Wadsworth
Charles H. Brower,
Presiding Judge
for Plaintiff-Appellant.
/s/ Karen T. Nakasone
John S. Mackey,
Associate Judge
for Defendant-Appellee.
/s/ Sonja M.P. McCullen
Associate Judge

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