Nishi v. Department of Labor and Industrial Relations

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
16-JUN-2022
07:49 AM
Dkt. 39 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

ROSS T. NISHI, Claimant-Appellant-Appellant,
v.
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS,
UNEMPLOYMENT INSURANCE DIVISION and Employment Security
Appeals Referees Office, Agency-Appellee-Appellee,
and
STATE OF HAWAI#I, DEPARTMENT OF EDUCATION, Employer

APPEAL FROM THE CIRCUIT COURT OF THE THIRD CIRCUIT
(CIVIL NO. 3CCV-XX-XXXXXXX)

SUMMARY DISPOSITION ORDER
(By: Leonard, Presiding Judge, Hiraoka and Nakasone, JJ.)

This is a secondary appeal from a circuit court
judgment affirming a decision by Agency-Appellee-Appellee State
of Hawai#i Department of Labor and Industrial Relations (DLIR)
denying a claim for unemployment insurance benefits made by self-
represented Claimant-Appellant-Appellant Ross T. Nishi. Nishi
appeals from the Final Judgment entered by the Circuit Court of
the Third Circuit on June 30, 2021.1 For the reasons explained
below, we affirm the Final Judgment.
Nishi was employed by the State of Hawai#i Department
of Education (DOE) as a Personnel Regional Officer. In 2019 he
was paid about $92,000.

1
The Honorable Peter K. Kubota presided.
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He described his job:

We do the hiring, firing, um, the background checks, the
grievances, um, pretty much everything when someone enters
the DOE. I guess -- yeah, I guess, um, you know when
someone enters the DOE, we do from the start to whenever
they leave, yeah.
. . . .

. . . So the hiring part. If they -- if they had
misconduct or something like that we do a -- we assist with
the firing, yeah. We draft all the letters and, you know,
assist with the (unintelligible), right. We
(unintelligible).

On December 12, 2019, Nishi signed a DOE Separation
from Service form. The form stated that Nishi was resigning from
DOE because he had accepted another job at Hawai#i County.
Nishi made a claim for unemployment insurance benefits
with DLIR's Unemployment Insurance Division (UID). UID denied
Nishi's claim under Hawaii Revised Statutes (HRS) § 383-30(1)
because he "quit without good cause."
Nishi appealed. He stated: "I did not have the
opportunity to explain why I resigned from the DOE." The DLIR
Employment Security Appeals Referees' Office (ESARO) conducted a
hearing on February 13, 2020. Nishi testified at the hearing; he
did not offer any documents as evidence. On February 14, 2020,
ESARO affirmed the denial of benefits.
By letter dated February 21, 2020, Nishi requested that
ESARO reopen his appeal. He stated, "I resigned in lieu of
termination." He provided ESARO with copies of three letters.
ESARO denied the request to reopen on March 2, 2020.
On March 30, 2020, Nishi appealed to the circuit court.
On June 30, 2021, the circuit court entered its "Order Affirming
Employment Security Appeals Referees' Office's Decision in the
Matter of 2000173 Dated February 14, 2020[,] and Denial of

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Reopening Dated March 2, 2020[,]" and the Final Judgment. This
appeal followed.2
Our review of a circuit court decision on an appeal
from an administrative agency determination is a secondary
appeal; we must determine whether the circuit court was right or
wrong in its decision, applying the standards set forth in HRS
§ 91–14(g) to the agency's decision. Flores v. Bd. of Land &
Nat. Res., 143 Hawai#i 114, 120, 424 P.3d 469, 475 (2018). Our
review is confined to the record before the circuit court. HRS
§ 91-14(f) (2012 & Supp. 2019).3
HRS § 91–14(g) (2012 & Supp. 2019) provides, in
relevant part:

Upon review of the record, the court may affirm the
decision of the agency or remand the case with
instructions for further proceedings; or it may
reverse or modify the decision and order if the
substantial rights of the petitioners may have been
prejudiced because the administrative findings,
conclusions, decisions, or orders are:

(1) In violation of constitutional or
statutory provisions;

(2) In excess of the statutory authority or
jurisdiction of the agency;

(3) Made upon unlawful procedure;

(4) Affected by other error of law;

(5) Clearly erroneous in view of the reliable,
probative, and substantial evidence on the
whole record; or

2
Nishi's opening brief does not comply with Rule 28(b) of the
Hawai#i Rules of Appellate Procedure (HRAP). Nevertheless, the Hawai#i Supreme
Court instructs that to promote access to justice, pleadings prepared by self-
represented litigants should be interpreted liberally, and self-represented
litigants should not automatically be foreclosed from appellate review because
they fail to comply with court rules. Erum v. Llego, 147 Hawai#i 368, 380-81,
465 P.3d 815, 827-28 (2020).
3
The appendix to Nishi's opening brief contains a copy of a letter
dated February 5, 2021, from the Hawai#i Civil Rights Commission to Nishi.
The letter does not appear in the record on appeal. We disregard it. See
HRAP Rule 28(b)(10) ("Anything that is not part of the record shall not be
appended to the brief[.]").

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(6) Arbitrary, or capricious, or characterized
by abuse of discretion or clearly
unwarranted exercise of discretion.

"Under HRS § 91-14(g), conclusions of law are reviewable under
subsections (1), (2), and (4); questions regarding procedural
defects under subsection (3); findings of fact under
subsection (5); and an agency's exercise of discretion under
subsection (6)." Del Monte Fresh Produce (Haw.), Inc. v.
International Longshore & Warehouse Union, Local 142, 128 Hawai#i
289, 302, 287 P.3d 190, 203 (2012) (citations omitted).
The first issue presented by Nishi's appeal is whether
ESARO's decision of February 14, 2020, (which affirmed UID's
denial of benefits) was erroneous. The ESARO hearings officer
made the following findings of fact:

[Nishi] worked full-time for [DOE]'s school system from
November 1, 2004 to December 31, 2019, and most recently as
a personnel regional officer II. Effective December 31,
2019, [Nishi]'s employment relationship with [DOE] ended.

[Nishi]'s position as a personnel regional officer II
required him to supervise two clerks (Clerk 1 and Clerk 2).
[DOE] held [Nishi] responsible for the work of Clerk 1 and
Clerk 2, who both helped him with the administration of
hiring and terminating [DOE]'s employees.

[Nishi] attempted to improve Clerk 1's work performance for
approximately two years before the end of his employment.
He was not successful. Clerk 2 was a more recent hire.
[Nishi] had no issue with Clerk 2's job performance.

On December 12, 2019, [Nishi] last worked for [DOE]. He
submitted his written resignation effective December 31,
2019. Ex. 7.[4] He stated he was leaving to accept another
job by checking off a box. Ex. 7. [Nishi] did not check
the boxes indicating he was unable to meet the requirements
of his position or any of the boxes as to dissatisfaction
with his workplace environment (lack of administrative
support, coworkers, or workload). Ex. 7.
After December 12, 2019, [Nishi] did not report for work and
instead used his sick leave. [Nishi]'s employment ended on
December 31, 2019.

4
Exhibit 7 was the DOE Separation from Service form Nishi signed on
December 12, 2019.

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We review findings of fact under the "clearly
erroneous" standard. A finding of fact is clearly erroneous when
the record lacks substantial evidence to support the finding or
when, despite some evidence to support the finding, we are left
with the definite and firm conviction in reviewing all of the
evidence that a mistake has been committed. Birano v. State, 143
Hawai#i 163, 181, 426 P.3d 387, 405 (2018). "Substantial
evidence" is "credible evidence which is of sufficient quality
and probative value to enable a person of reasonable caution to
support a conclusion." In re Grievance Arbitration Between State
of Hawai#i Organization of Police Officers and County of Kaua#i,
135 Hawai#i 456, 462, 353 P.3d 998, 1004 (2015) (citation
omitted).
The ESARO hearings officer's findings of fact were
supported by substantial evidence — the exhibits in evidence and
Nishi's testimony — and were not clearly erroneous. The hearings
officer noted:

There were issues of credibility regarding both parties,
especially considering [DOE] was not present at the appeal
hearing and [Nishi]'s testimony contradicted his written
resignation. There was also no written contemporaneous
evidence of the alleged proceedings to discharge [Nishi] for
poor work performance in the record. The only credible and
reliable evidence as to whether continued work was available
to [Nishi] was his written resignation. [Nishi] submitted a
written resignation dated December 12, 2019 to accept
another job and his last day of employment would be
December 31, 2019. He did not express any dissatisfaction
with his workplace environment or inability to do his job,
despite an opportunity to simply check a box in his written
resignation. Furthermore, [Nishi] could have continued to
dispute the ending of his employment. Hence, credibility
was accorded to [Nishi]'s written resignation (Ex. 7) which
implies continued work was available to [Nishi] had he not
quit.
Based on the foregoing, [Nishi] was the moving party and
ended the employment relationship.

"A court reviewing an agency's decision cannot consider the
weight of the evidence . . . or review the agency's findings of
fact by passing upon the credibility of witnesses or conflicts in
testimony, especially the finding of an expert agency in dealing

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with a specialized field." Sierra Club v. D.R. Horton-Schuler
Homes, LLC, 136 Hawai#i 505, 522, 364 P.3d 213, 230 (2015)
(cleaned up).
The ESARO hearings officer found and concluded:

Based on the foregoing, [Nishi] was the moving party and
ended the employment relationship. The relevant issue then
is whether [Nishi] left work for good cause.

To establish good cause, [Nishi] must demonstrate he had
substantial or compelling reasons to quit, such that a
reasonable and prudent worker who genuinely and sincerely
wanted to maintain employment would have taken similar
action. Haw. Admin. R. § 12-5-47(c). [Nishi] was also
expected to try reasonable alternatives.
[Nishi] demonstrated unpleasant aspects of his job, but he
did not show good cause for quitting. A reasonable and
prudent worker, genuinely and sincerely desirous of
maintaining employment would not quit his or her job before
obtaining a firm offer of other employment. [Nishi] was not
advised by a medical professional to quit his job.
[Nishi]'s quitting was a disproportionate response to the
alleged harm. Moreover, [Nishi] is expected to attempt
reasonable alternatives to quitting. [Nishi] admitted he
could have continued disputing the ending of his employment.
[Nishi]'s situation did not rise to the level or extent to
find he was compelled to quit, nor did the evidence show he
had substantial reasons for quitting and becoming totally
unemployed when he did. [Nishi] also did not show
sufficient credible evidence to find continued employment
was unsuitable, unfavorable or unavailable to him. Based on
the foregoing, [Nishi] did not meet his burden of proof to
establish that he quit for good cause.

We review conclusions of law under the "right/wrong"
standard. City & Cnty. of Honolulu v. Honolulu Police Comm'n,
151 Hawai#i 56, 62, 508 P.3d 851, 857 (App. 2022). A conclusion
of law that is supported by the agency's findings of fact and
reflects an application of the correct rule of law will not be
overturned. Id. When a conclusion of law presents mixed
questions of fact and law, we review it under the "clearly
erroneous" standard because the agency's conclusions are
dependent on the facts and circumstances of each individual case.
Id.

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HRS § 383-30 (2015) provides, in relevant part:

Disqualification for benefits. An individual shall be
disqualified for benefits:
(1) Voluntary separation. . . . For any week . . .
in which the individual has left the
individual's work voluntarily without good
cause, and continuing until the individual has,
subsequent to the week in which the voluntary
separation occurred, been paid wages in covered
employment equal to not less than five times the
individual's weekly benefit amount as determined
under section 383-22(b).

(emphasis added).
Hawaii Administrative Rules § 12-5-47 provides, in
relevant part:

Voluntary Separation. (a) An individual shall be
disqualified for benefits for voluntarily leaving work
without good cause.

(b) A separation is a voluntary leaving or quitting
when the facts and circumstances demonstrate that a claimant
is the "moving party" in the termination of an employment
relationship.

(c) Generally, a leaving of work is considered to be
for good cause where it is for a real, substantial, or
compelling reason, or a reason which would cause a
reasonable and prudent worker, genuinely and sincerely
desirous of maintaining employment, to take similar action.
Such a worker is expected to try reasonable alternatives
before terminating the employment relationship.

(emphasis added). Whether a separation is voluntary is a
separate issue from whether the separation was for good cause.
Hardin v. Akiba, 84 Hawai#i 305, 313, 933 P.2d 1339, 1347 (1997).
The former is concerned with "whether the circumstances reflect
an intent on the part of the employee to terminate employment."
Id. (quoting Ipsen v. Akiba, 80 Hawai#i 481, 486, 911 P.2d 116,
121 (App. 1996)). The latter is concerned with "whether there
were compelling reasons which forced an employee to leave[.]"
Id. (citation omitted).
ESARO's finding and conclusion that "[Nishi] was the
moving party and ended the employment relationship" was supported
by substantial evidence and reflected an application of the

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correct rule of law. ESARO's finding and conclusion that
"[Nishi] did not meet his burden of proof to establish that he
quit for good cause" was also supported by substantial evidence
and reflected an application of the correct rule of law. An
agency's decision that is supported by its findings of fact and
reflects an application of the correct rule of law will not be
overturned. Honolulu Police Comm'n, 151 Hawai#i at 62, 508 P.3d
at 857.
The second issue presented by Nishi's appeal is whether
ESARO's March 2, 2020 denial of Nishi's request to reopen his
appeal was erroneous. HRS § 383-38(b) (2015) provides, in
relevant part:

the referee may reopen the matter, upon the application of
the director or any other party, or upon the referee's own
motion, and thereupon may take further evidence or may
modify or reverse the referee's decision, findings, or
conclusions.

(emphasis added). The Hawai#i Supreme Court has instructed:

[W]hen reviewing a determination of an administrative
agency, we first decide whether the legislature
granted the agency discretion to make the
determination being reviewed. If the legislature has
granted the agency discretion over a particular
matter, then we review the agency's action pursuant to
the deferential abuse of discretion standard (bearing
in mind the legislature determines the boundaries of
that discretion).

Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai#i 412, 419-20, 91
P.3d 494, 501-02 (2004). Accordingly, we review for abuse of
discretion.
The additional evidence Nishi sought to introduce were
DOE letters to Nishi dated October 17, 2019, and November 19,
2019, both of which could have been offered before the UID denied
Nishi's claim, or during Nishi's appeal to ESARO. Nishi also
sought to introduce a letter from the Hawaii Government Employees
Association/American Federation of State, County and Municipal
Employees, AFL-CIO (HGEA). The HGEA letter was dated
February 19, 2020 (after the date of the ESARO appeal hearing),

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but the contents of the letter concerned the circumstances of
Nishi's resignation and could have been offered before the UID
denied Nishi's claim, or during the ESARO appeal hearing. We
conclude that ESARO did not abuse its discretion by denying
Nishi's request to reopen his appeal. See Amfac, Inc. v. Waikiki
Beachcomber Inv. Co., 74 Haw. 85, 115, 839 P.2d 10, 27 (1992)
(holding that trial court did not abuse its discretion by denying
motion for reconsideration where movant's argument "could and
should have been made . . . in support of its motion for summary
judgment").
For the foregoing reasons, the circuit court was not
wrong to affirm ESARO's decisions, and the Final Judgment entered
on June 30, 2021, is affirmed.
DATED: Honolulu, Hawai#i, June 16, 2022.

On the briefs:
/s/ Katherine G. Leonard
Ross T. Nishi, Presiding Judge
Self-represented
Claimant-Appellant-Appellant. /s/ Keith K. Hiraoka
Associate Judge
Li-Ann Yamashiro,
Doris Dvonch, /s/ Karen T. Nakasone
Deputy Attorneys General, Associate Judge
State of Hawai#i,
for Agency-Appellee-Appellee
Department of Labor and Industrial
Relations, State of Hawai#i.

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