CourtListener 10761870

Full text

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-DEC-2025
07:53 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

PAMELA JOYCE LOUGH, Plaintiff-Appellant, v.
HAWAII PACIFIC UNIVERSITY, Defendant-Appellee.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, and Wadsworth and Guidry, JJ.)

This appeal concerns whether summary judgment was
properly granted in an employment discrimination case based on
age and/or sex under Hawaii Revised Statutes (HRS) § 378-2.1/
Plaintiff-Appellant Pamela Joyce Lough (Lough) appeals from the
January 19, 2023 Final Judgment entered in favor of Defendant-
Appellee Hawai#i Pacific University (HPU) by the Circuit Court of
the First Circuit (Circuit Court).2/ Lough also challenges the
Circuit Court's December 8, 2022 "Findings of Fact, Conclusions
of Law, and Order Granting [HPU's] Motion for Summary Judgment,
Filed October 6, 2022" (Order Granting MSJ).
On November 11, 2020, Lough filed a complaint alleging
that HPU discriminated against her in violation of HRS Chapter

1/
HRS § 378-2 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
sex. HRS § 378-2(a)(1)(A) (2019).
2/
The Honorable Dean E. Ochiai presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

378 when it terminated her employment due to her age (58 at the
time of termination) and sex (female).
HPU subsequently filed a motion for summary judgment
(MSJ), arguing that: (1) Lough cannot establish a prima facie
case of discrimination on the basis of age and gender; and (2)
HPU had a legitimate non-discriminatory reason for terminating
Lough – i.e., she allegedly sent, without authorization,
confidential information about HPU's financial situation to a
third-party. Lough opposed the motion, arguing that she has
established a prima facie case of discrimination, and there is a
genuine issue whether she can establish that HPU's alleged
nondiscriminatory reason for termination is pretextual.
Following a November 2, 2022 hearing on the MSJ, the
Circuit Court granted the motion. The Order granting MSJ
concluded that Lough could not establish a prima facie case of
age and sex discrimination, HPU had a legitimate non-discrimina-
tory reason for terminating Lough, and Lough could not show that
HPU's reasons for termination are pretextual.
On appeal, Lough contends that the Circuit Court erred
in: (1) "concluding that [Lough] did not establish a prima facie
case of age discrimination"; (2) "concluding that '[HPU] had a
legitimate, non-discriminatory reason for terminating [Lough]'";
(3) "concluding that [Lough] did not satisfy the third prong of a
prima facie case of disparate treatment on the basis of age and
sex showing that she was treated less favorably than 'similarly
situated' employees"; and (4) "not providing [Lough] an extension
of time to obtain transcripts from previously held depositions
pursuant to Hawai[#]i Rules of Civil Procedure ('HRCP') Rule
56(f)."
After reviewing the record on appeal and the relevant
legal authorities, and giving due consideration to the issues
raised and the arguments advanced by the parties, we resolve
Lough's contentions as follows, and vacate.
(1) Lough contends that, contrary to the Circuit
Court's conclusion, she did in fact establish a prima facie case
for age discrimination pursuant to Shoppe v. Gucci Am., Inc., 94
Hawai#i 368, 14 P.3d 1049 (2000). Specifically, she argues that

2
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the Circuit Court failed to use the proper analytic framework in
addressing her claim for age discrimination under HRS § 378-2.
"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, 94 Hawai#i at 376, 14 P.3d at 1057)
(internal quotation marks omitted).
Here, there is no dispute that Lough's age and sex
discrimination claims rely on circumstantial evidence. When
analyzing such a claim, Hawai#i courts engage in a three-step
analysis – a modified version of the burden-shifting test set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
See Nozawa v. Operating Eng'rs Local Union No. 3, 142 Hawai#i
331, 343, 418 P.3d 1187, 1199 (2018) (citing Adams, 135 Hawai#i
at 13, 346 P.3d at 82).

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

Id. (quoting Shoppe, 94 Hawai#i at 378, 14 P.3d at 1059).
Second, if the plaintiff establishes a prima facie case, "the
burden of production shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the adverse employment
action." Id. (quoting Adams, 135 Hawai#i at 13, 346 P.3d at 82).
Third, "if the employer rebuts the prima facie case, the burden
reverts to the plaintiff to demonstrate that the defendant's
proffered reasons were pretextual." Id. (quoting Adams, 135
Hawai#i at 14, 346 P.3d at 83) (internal quotation marks
omitted).
In conclusion of law (COL) 47, the Circuit Court set
out the elements applicable to Lough's claims for age and sex
discrimination as follows:

47. To establish a prima facie case of disparate
treatment on the basis of age and sex, Plaintiff must show:
(1) she is a member of a protected class; (2) she was
qualified for the position; (3) she suffered an adverse
employment action; and (4) she was treated less favorably

3
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

than similarly situated employees that are younger and/or
male. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)
(Title VII); Moran v. Selig, 447 F.3d 748, 755 (9th Cir.
2006) (individuals must be similarly situated "in all
material respects"); Bragalone v. Kona Coast Resort Joint
Venture, 866 F. Supp. 1285, 1291 (D. Haw. 1994)(citing Rose
v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir. 1990).

(Emphasis added.)
Analyzing the first three elements of a prima facie
case, the Circuit Court concluded that Lough is a member of a
protected class, she met the qualifications for her position, and
she suffered an adverse employment action when she was
terminated. Analyzing the fourth element (Element 4), however,
the court determined that Lough was not treated less favorably
than similarly situated employees that were younger and/or male.
The Circuit Court's analysis of Lough's prima facie
case thus turned on Element 4. In analyzing Lough's age and sex
discrimination claims, however, the Circuit Court misstated
Element 4. In these circumstances, where Lough's employment was
terminated, she was not required to demonstrate that she was
treated less favorably than similarly situated employees who were
younger or male; rather she was required to show that "the
position still exists."3/ Adams, 135 Hawai#i at 13, 346 P.3d at
82 (quoting Shoppe, 94 Hawai#i at 378, 14 P.3d at 1059) (applying
"the position still exists" element to an age discrimination
claim); Nozawa, 142 Hawai#i at 342-43, 418 P.3d at 1198-99
(quoting Shoppe, 94 Hawai#i at 378, 14 P.3d at 1059) (applying
"the position still exists" element to a gender discrimination
claim); see Fernandez v. FedEx Corp. Servs., Inc., No. 20-0031
HG-RT, 2021 WL 4305259, at *6 n.1 (D. Haw. Sept. 3, 2021) (noting
that Nozawa, not earlier case law, sets forth the prima facie
test for sex discrimination claims pursuant to HRS § 378-2). In
opposing summary judgment, Lough asserted that "the position at
issue is still unfilled." She points to evidence submitted by
HPU below that her position "was transitioned" to an existing HPU

3/
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.).

4
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

employee, as well as deposition testimony from HPU's president
that Lough's position "has not been filled by a permanent person"
and "[t]here is a person . . . in a temporary position overseeing
sort of the library." She cites authority holding that under
analogous federal law, an inference of age discrimination can, in
certain circumstances, be established by showing the employer
"had a continuing need for [the plaintiff's] skills and services
in that [their] various duties were still being performed."
Wallis v. J.R. Simplot Co., 26 F.3d 885, 891 (9th Cir. 1994)
(quoting Rose v. Wells Fargo & Co., 902 F.2d 1417, 1421 (9th Cir.
1990)) (internal quotation marks omitted). It appears the
Circuit Court did not consider this evidence or authority in
determining that Lough failed to establish a prima facie case of
age or sex discrimination.
HPU contends that Lough's argument fails because: "(1)
Shoppe is not the appropriate legal standard for discrimination
claims based on age and sex; (2) [Lough] waived her right to
raise the applicability of Shoppe on appeal when she failed to
object to the exclusion of Shoppe in her own Proposed [findings
of fact and conclusions of law] . . .; and (3) even if Shoppe
applied, [Lough] still fails to meet her prima burden."
Initially, we conclude that Lough did not waive her
argument regarding Element 4, as she presented the argument in
her opposition to the MSJ and at the hearing on the MSJ.
We find unpersuasive HPU's argument that "the position
still exists" element does not apply because Lough alleges she
was terminated due to both age and sex discrimination. Lough can
prevail if she establishes that she was unlawfully terminated
because of age discrimination or sex discrimination. Shoppe and
Nozawa make clear that "the position still exists" element
applies to both her age and sex discrimination claims, and it is
for the Circuit Court to decide on remand whether she satisfied
this element and thus established a prima facie case of age and
sex discrimination.4/

4/
Lough argues in her reply brief that "the [Circuit] [C]ourt should
have split up the claims in its analysis and used the Shoppe test for the age
discrimination claim and the McDonnell Douglas test, as adopted by the Hawai #i
Supreme Court, for the sex discrimination claim." Regarding the latter test,

5
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

On this record, we conclude that the Circuit Court
erred by failing to consider "the position still exists" element
in concluding that Lough did not establish a prima facie case of
age or sex discrimination.
(2) Lough contends that "[HPU's] alleged legitimate,
non-discriminatory reason for terminating [her] was not
legitimate and in fact pretextual." Lough thus challenges the
Circuit Court's analysis of step 2 of the Shoppe test, under
which "the burden of production shifts to the defendant to
articulate a legitimate, nondiscriminatory reason for the adverse
employment action." Shoppe, 94 Hawai#i at 378, 14 P.3d at 1059.
"The employer's explanation must be in the form of admissible
evidence and must clearly set forth reasons that, if believed by
the trier of fact, would support a finding that unlawful
discrimination was not the cause of the challenged employment
action." Id. Lough's argument also bleeds into step 3 of the
Shoppe test, under which "the burden reverts to the plaintiff to
demonstrate that the defendant's proffered reasons were
'pretextual.'" Id. at 379, 14 P.3d at 1060. "A plaintiff may
establish pretext 'either directly by persuading the court that a
discriminatory reason more likely motivated the employer or
indirectly by showing that the employer's proffered explanation
is unworthy of credence.'" Id. (quoting Texas Dep't of Cmty.
Affaris v. Burdine, 450 U.S. 248, 256 (1981)).
Here, HPU asserted that Lough was terminated "because
she sent confidential information about HPU's financial situation
to a third-party [Linda Wobbe (Wobbe), eJournal Relations Manager
for the Statewide California Electronic Library Consortium
(SCELC)]: (a) knowing that [HPU] President [John Gotanda
(Gotanda)] had instructed the information not be shared outside
of the University; and (b) without getting authorization from
either the Provost or Office of University Counsel to disclose
the confidential financial information to SCELC[,]" and
"[Lough's] actions were in direct violation of the University's

Lough argues that she showed that she was treated less favorably than
similarly situated employees. However, in Nozawa, the supreme court applied
the Shoppe test, including "the position still exists" element, to a gender
discrimination claim. Nozawa, 142 Hawai#i at 342-43, 418 P.3d at 1198-99.

6
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

policies . . . ." The communication at issue stemmed from an
email exchange between Lough and Wobbe. On October 25, 2019,
Wobbe asked Lough whether HPU had made a decision on whether to
renew or stop its subscription to the American Chemical Society
(ACS). Lough informed Wobbe that HPU would have to stop its
subscription. In order to prematurely cancel the subscription,
Wobbe requested documentation from an administrator confirming
that HPU's decision to stop the subscription was due to budget
cuts or other financial difficulty. Lough responded to Wobbe by
sending her a copy of a "Talk Story" summary from Gotanda. In
her accompanying email, Lough stated:

We received a number of complaints from our science faculty
and we feel very sad about having to do this. Will the
attached, censored email suffice? Our president has asked
us not to talk about our financial situation outside the
university. He did not want us to discuss the content of
the meeting/presentation referenced in the email, but most
of the financial discussions and presentations have been in
person, rather than documented. Any documentation
distributed has been confidential.

Please keep this information, including the attachment
confidential.

Based on this email and the surrounding circumstances, HPU argued
below that Lough knew that the financial information she was
transmitting was confidential, but nevertheless sent the
information to Wobbe, and that HPU terminated Lough because of
it.
Lough, on the other hand, denied having "discussed,
released or disclosed Confidential Information to any person who
has not been authorized by the University to receive or discuss
the information." According to Lough, all she actually emailed
and disclosed was "a snippet" from Gotanda's "Talk Story," which
was emailed by Gotanda to Lough's "colleagues." Lough further
asserted that the "snippet" disclosed only general information
regarding HPU, as follows:

[HPU header]
From the Office of the President • John Y. Gotanda

Aloha Colleagues,
In case you missed our September 27 President's Talk Story,
we want to provide you a recap of CFO David Kostecki's
financial presentation and answer some questions that were

7
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

raised. As you review these highlights of our financial
strategies and plans, please keep in mind that our most
important investments are those that we make on behalf of
our people. And that means, of course, our students, our
faculty and our staff.

HPU is Moving Forward

• FY 2020 is a critical year of solid recovery. We
designed a budget -- approved by the Board of Trustees
in June – that <snip> prioritizes our people and the
work you do for our students.
<snip>

Lough argued that: (1) the alleged confidential information that
she emailed was not "business or financial information about the
University (e.g., costs, profits, business plans, operational
needs, marketing plans, employment policies and practices)," as
reflected in HPU's confidentiality policy; (2) it was widely
known publicly that HPU was going through financial difficulties
at that time, as detailed in numerous published articles; and (3)
other HPU employees such as Senior Vice President Jennifer Walsh,
President Gotanda, and Chief Financial Officer David Kostecki
"openly discussed and disclosed the information related to HPU's
financial difficulties to third-parties, including the media,
without being disciplined."
On this record, we conclude that Lough raised a genuine
issue of material fact as to whether she disclosed confidential
information about HPU's financial situation to a third party, in
violation of HPU's policies. As this was the purported basis for
Lough's termination, she raised a genuine issue of material fact
as to whether HPU articulated a legitimate, nondiscriminatory
reason for the termination, and whether HPU's proffered reason
was pretextual. These genuine issues precluded judgment in HPU's
favor as a matter of law. The Circuit Court therefore erred in
granting the MSJ.
Given our disposition, we need not reach Lough's
remaining contentions.
For the reasons discussed above, we vacate the
December 8, 2022 "Findings of Fact, Conclusions of Law, and Order
Granting [HPU's] Motion for Summary Judgment, Filed October 6,
2022," and the January 19, 2023 Final Judgment, both entered by
the Circuit Court of the First Circuit. This case is remanded to

8
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

the Circuit Court for further proceedings consistent with this
Summary Disposition Order.

DATED: Honolulu, Hawai#i, December 19, 2025.

On the briefs:
/s/ Katherine G. Leonard
Joseph T. Rosembaum, Presiding Judge
Elizabeth Jubin Fujiwara, and
Marcos R. Bendaña /s/ Clyde J. Wadsworth
(Fujiwara & Rosenbaum, LLLC) Associate Judge
for Plaintiff-Appellant.
/s/ Kimberly T. Guidry
Anna Elento-Sneed and Associate Judge
Trisha Gibo
(ES&A, Inc.)
for Defendant-Appellee.

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
19-DEC-2025
07:53 AM
Dkt. 81 SO

NO. CAAP-XX-XXXXXXX

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