Wang v. State

NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
24-MAY-2024
07:49 AM
Dkt. 88 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAIʻI

YI BING WANG, Complainant/Appellant-Appellant, v.
STATE OF HAWAIʻI, DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS;
JADE T. BUTAY in his official capacity of Director
of the Department of Labor and Industrial Relations,
State of Hawaiʻi;1 and CARMEN DI AMORE-SIAH,
Attorney at Law, A Law Corporation,
Respondents/Appellees-Appellees.

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CASE NO. 1CC171001119)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, Nakasone and McCullen, JJ.)

Complainant/Appellant-Appellant Yi Bing Wang

(Employee) appeals from the Circuit Court of the First Circuit's2

November 20, 2018 order affirming the State of Hawai‘i,

Department of Labor and Industrial Relations (DLIR) Director's

1 Pursuant to Hawaiʻi Rules of Evidence Rule 201 and Hawaiʻi Rules of
Appellate Procedure Rule 43(c)(1), we take judicial notice that Jade T. Butay
is the current Director of the Department of Labor and Industrial Relations,
in place of Leonard Hoshijo.
2 The Honorable Keith K. Hiraoka presided.
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decision and order. On appeal, Employee challenges the

Director's decision that her work injury was not the sole reason

for her suspension and discharge.3

Following five days of testimony and argument, the

hearings officer rendered eighteen findings of fact, and

determined Employee met her burden of showing by a preponderance

3 Employee raises five points of error:

A. The Court's Order, including its findings (2) and (4)
above, and its Judgment and the Director's Decision and
Order are clearly erroneous in view of the reliable,
probative, and substantial evidence on the whole record
under [Hawai‘i Revised Statutes (HRS)] §91-14(g)(5)
[(Supp. 2016)]. . . .

B. The Court in its Order and the Director in her Decision,
contrary to the [hearings officer's] Recommended
Decision, committed an error of law in concluding there
was no violation of HRS §378-32(a)(2) [(2015)] . . . .

C. The Director committed an error of law by erroneously
ignoring the second part of the statute which reads:
"Any employee who is discharged because of the work
injury shall be given first preference of reemployment
by the employer in any position which the employee is
capable of performing and which becomes available . . ."
HRS §378-32(a)(2) (emphasis added). . . .

D. The Director's Decision (in those excerpts referenced in
section A above) and, in turn the Court's Order, are
arbitrary and capricious in disregarding the [hearings
officer's] Conclusions of Law (containing some findings
of fact) . . . .

E. In applying a DLIR practice in calculating backpay, the
[hearings officer] recommended an award of backpay to
[Employee] based on an erroneous interpretation of
"backpay" under HRS §378-35 [(2015)] that is legally
incorrect as a matter of law and should be revised to
award [Employee] full backpay[.]

Because we affirm the circuit court's November 20, 2018 order and the
Director's May 31, 2017 Decision and Order, we need not reach the issue
of backpay.

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of the evidence that Respondent/Appellee-Appellee Carmen

Di Amore-Siah (Employer) suspended or discharged Employee solely

because she suffered a compensable work injury.

After considering exceptions filed by both parties,

the Director adopted the hearings officer's findings of fact,

but did not adopt the hearings officer's recommended decision.

Instead, the Director concluded "the work injury may have been

one of the factors that Employer considered in making the

decision not to return Employee to her position" but "the work

injury was not the sole, or only, reason for not returning

Employee to her position."

The Director determined Employer was dissatisfied with

Employee's "inconsistency in submitting daily and comprehensive

case lists detailing cases worked on by Employee; failure to

copy Employer on emails that Employee sent to clients – or

failure to email clients; inconsistent work attendance; and

translation and certification of an employment-verification

document for a client." (Footnotes omitted.)

The circuit court affirmed the Director's decision

because the Director properly applied Hawai‘i Revised Statutes

(HRS) § 378-32(a)(2) (2015). Employee timely appealed.

Upon careful review of the record and the briefs

submitted by the parties and having given due consideration to

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the issues raised and the arguments advanced, we resolve the

points of error as discussed below, and affirm.

(1) Employee contends Director's decision and the

circuit court's order "are clearly erroneous in view of the

reliable, probative, and substantial evidence on the whole

record under HRS §91-14(g)(5)[ (Supp. 2016)]." In challenging

the Director's findings, Employee argues "Employer made

unmeritorious contentions that were not corroborated but were

refuted by other witnesses[.]"

Of particular note is the challenged finding that

"sources of Employer's dissatisfaction included inconsistency in

submitting daily and comprehensive case lists detailing cases

worked on by Employee; failure to copy Employer on emails that

Employee sent to clients – or failure to email clients;

inconsistent work attendance; and translation and certification

of an employment-verification document for client." (Footnotes

omitted.) Documents in the record supported this finding.

Thus, this finding was not clearly erroneous. See Tauese v.

State, Dep't of Lab. & Indus. Rels., 113 Hawai‘i 1, 25, 147 P.3d

785, 809 (2006) (for clearly erroneous standard of review).

(2) Employee next contends the Director erred by

construing HRS § 378-32(a)(2) too narrowly.

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Under HRS § 378-32(a)(2), an employer is prohibited

from suspending or discharging an employee solely based on a

work injury:

(a) It shall be unlawful for any employer to suspend,
discharge, or discriminate against any of the
employer's employees:

. . . .

(2) Solely because the employee has suffered a work
injury which arose out of and in the course of the
employee's employment with the employer and which is
compensable under chapter 386 unless the employee is
no longer capable of performing the employee's work
as a result of the work injury and the employer has
no other available work which the employee is capable
of performing. Any employee who is discharged
because of the work injury shall be given first
preference of reemployment by the employer in any
position which the employee is capable of performing
and which becomes available after the discharge and
during the period thereafter until the employee
secures new employment. . . .

(Emphases added and formatting altered.)

HRS chapter 378 Part III does not define "solely" so

we turn to its common definition. See generally, HRS § 1-14

(2009). Solely is defined as "to the exclusion of all else" and

"exclusively or only." Merriam-Webster, Solely Definition &

Meaning, Merriam-Webster Online Dictionary (2024),

https://www.merriam-webster.com/dictionary/solely

[https://perma.cc/2U3E-AGW7]; Solely Definition & Meaning,

Dictionary.com (2024), https://www.dictionary.com/browse/solely

[https://perma.cc/S475-2BAW].

Because "solely" means only, the Director did not

construe HRS § 378-32(a)(2) too narrowly in concluding

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Employee's "work injury was not the sole, or only, reason for

not returning Employee to her position."

(3) Relatedly, Employee argues the Director

erroneously ignored the second part of HRS § 378-32(a)(2) giving

first preference for reemployment, relying on Flores v. United

Air Lines, Inc., 70 Haw. 1, 757 P.2d 641 (1988).

Contrary to Employee's argument, the provision

giving first preference to an employee who is discharged

because of the work injury only comes into play if the

employee was terminated solely because of the work injury.

Moreover, Employee's reliance on Flores is misplaced

because, unlike in this case, it appears the employee in

Flores was terminated solely due to the work injury. See

70 Haw. at 3-5, 757 P.2d at 642-43.

(4) Finally, Employee asserts the Director's decision

was "arbitrary and capricious in disregarding the [hearing

officer's] Conclusions of Law (containing some findings of fact)

on the Employer's unmeritorious contentions, uncorroborated

claims, and implicit credibility determinations[.]"

Nothing in Part III of HRS chapter 378 requires the

Director to adopt the hearings officer's recommended decision.

Hawai‘i Administrative Rules (HAR) § 12-24-15 (eff. 1981)

requires the director to "make a final decision stating the

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reasons or basis therefor and enter an appropriate order" and

prohibits the director from setting aside the hearings officer's

findings of fact "unless clearly contrary to the weight of

evidence." HAR § 12-24-15(c), (d).

Contrary to Employee's argument that the Director

disregarded the hearings officer's findings of fact, the

Director expressly adopted all eighteen findings of fact.

Significantly, none of the hearings officer's eighteen findings

of facts determined credibility despite Employee's claim that

"Employer was found not to be credible." (Formatting altered.)

Although the hearings officer's discussion credited

the office manager's testimony regarding the $400 retainer fee,

Employer's complaint regarding the $400 retainer fee was not one

of the sources of dissatisfaction with Employee's performance on

which the Director's decision was based.

In sum, the Director adopted the hearings officer's

findings of fact and provided a basis for her decision.

Employee has not provided a statute or rule requiring the

Director to adopt the hearings officer's recommendation. Thus,

we cannot conclude that the Director's decision to not adopt the

hearings officer's recommendation was arbitrary or capricious.

See generally, Paul's Elec. Serv., Inc. v. Befitel, 104 Hawai‘i

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412, 417, 91 P.3d 494, 499 (2004); HRS § 91-14(g)(6)

(Supp. 2016).

For the above reasons, we affirm the circuit court's

November 20, 2018 order and the Director's May 31, 2017 Decision

and Order.

DATED: Honolulu, Hawai‘i, May 24, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Dennis W. King,
(Deeley, King, Pang & Van /s/ Karen T. Nakasone
Etten), Associate Judge
for Complainant/Appellant-
Appellant. /s/ Sonja M.P. McCullen
Associate Judge
Steven T. Barta,
for Respondent/Appellee-
Appellee Carmen DiAmore-Siah.

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