Nacino v. Cambridge Management, Inc.

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
26-SEP-2022
07:59 AM
Dkt. 61 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

AL R. NACINO, Plaintiff-Appellant,
v.
CAMBRIDGE MANAGEMENT, INC., 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. 1CC161001853)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Hiraoka and McCullen, JJ.)

Plaintiff-Appellant Al R. Nacino appeals from the Final
Judgment in favor of Defendant-Appellee Cambridge Management,
Inc. entered by the circuit court on November 19, 2019.1 For the
reasons explained below, we vacate the Final Judgment and remand
for further proceedings not inconsistent with this summary
disposition order.
In 2012, Nacino sued his then-employer, Cambridge, his
supervisor, and his supervisor's manager (the Discrimination
Lawsuit). Nacino's complaint alleged that the defendants had
discriminated against him in violation of Hawaii Revised Statutes

1
The Honorable Jeffrey P. Crabtree presided.
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(HRS) § 378-2.2 Cambridge terminated Nacino's employment the
next month. The defendants ultimately obtained a summary
judgment, from which Nacino did not appeal.
In 2016, Nacino filed the action below. The complaint
alleged that Cambridge's termination of Nacino's employment in
2012 violated HRS § 378-2(a)(2) (2015). The statute provided, in
relevant part:

§378-2 Discriminatory practices made unlawful;
offenses defined. (a) It shall be an unlawful
discriminatory practice:
. . . .
(2) For any employer . . . to discharge . . . any
individual because the individual has . . .
filed a complaint . . . respecting the
discriminatory practices prohibited under this
part[.]

Cambridge moved for summary judgment (MSJ). Cambridge
argued it did not violate HRS § 378-2(a)(2) because the
Discrimination Lawsuit was not based upon actual "discriminatory
practices prohibited under" HRS Chapter 378. On October 1, 2019,
the court entered an order granting Cambridge's MSJ. The Final
Judgment was entered on November 19, 2019. This appeal followed.
Nacino raises two points of error: (1) the circuit
court erred by ruling on the MSJ before Nacino could take the
deposition of the Cambridge supervisor who terminated his
employment; and (2) the circuit court erred by granting the MSJ
because there were genuine issues of material fact "as to the
real reason for Nacino's termination."
(1) Nacino filed the action below on October 3, 2016.
Trial was set for October 7, 2019; the deadline to conduct

2
HRS § 378-2(a) (2015) made it unlawful for an employer to engage
in certain conduct that discriminates against an employee "[b]ecause of race,
sex, including gender identity or expression, sexual orientation, age,
religion, color, ancestry, disability, marital status, arrest and court
record, or domestic or sexual violence victim status if the domestic or sexual
violence victim provides notice to the victim's employer of such status or the
employer has actual knowledge of such status[.]"

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discovery was set for August 9, 2019. Cambridge filed the MSJ
after the discovery cutoff.3
In opposition to the MSJ, Nacino argued that he had
been "trying to depose Ma'rin Witt for over a month[.]" Witt
became Nacino's supervisor on August 18, 2011; she signed a
declaration on October 31, 2012, that had been offered in the
Discrimination Lawsuit to show nondiscriminatory reasons for
Nacino's treatment. Nacino issued a deposition subpoena to Witt
on July 31, 2019. Unsuccessful attempts to serve the subpoena
upon Witt were made on August 2, 3, 7, and 8, 2019.
Hawai#i Rules of Civil Procedure Rule 56(f) provides:

Should it appear from the affidavits of a party opposing the
motion [for summary judgment] that the party cannot for
reasons stated present by affidavit facts essential to
justify the party's opposition, the court may refuse the
application for judgment or may order a continuance to
permit affidavits to be obtained or depositions to be taken
or discovery to be had or may make such other order as is
just.

(Emphasis added.)
Nacino did not explain why he was not able to take
Witt's deposition during the more-than-two-year period between
the filing of the complaint below and the discovery deadline.
Under these circumstances we cannot say the circuit court abused
its discretion by not continuing the hearing on the MSJ so that
Nacino could take the deposition — after the discovery cutoff —
of a witness who had been known to him since the beginning of the
lawsuit.
(2) We review a trial court's grant or denial of
summary judgment de novo using the same standard applied by the
trial court. Lales v. Wholesale Motors Co., 133 Hawai#i 332,
343, 328 P.3d 341, 352 (2014).

Summary judgment is appropriate if the pleadings,
depositions, answers to interrogatories and admissions on
file, together with the affidavits, if any, show that there
is no genuine issue as to any material fact and that the

3
The trial date was continued after Cambridge filed its MSJ; the
discovery cutoff was not extended.

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moving party is entitled to judgment as a matter of law. A
fact is material if proof of that fact would have the effect
of establishing or refuting one of the essential elements of
a cause of action or defense asserted by the parties. The
evidence must be viewed in the light most favorable to the
non-moving party. In other words, we must view all of the
evidence and inferences drawn therefrom in the light most
favorable to the party opposing the motion.

Id. (cleaned up).
Nacino's HRS § 378–2(a)(2) retaliation claim against
Cambridge is subject to a three-part test:

[First,] the plaintiff must establish a prima facie case of
such retaliation by demonstrating that [they], inter alia,
"ha[ve] opposed any practice forbidden by HRS Chapter
378[.]" . . .

[Second,] if the plaintiff establishes a prima facie case of
retaliation, the burden shifts to the defendant to provide a
legitimate, nondiscriminatory reason for the adverse
employment action[.] . . .
[Third,] if the defendant articulates such a reason, the
burden shifts back to the plaintiff to show evidence
demonstrating that the reason given by the defendant is
pretextual.

Lales, 133 Hawai#i at 356-57, 328 P.3d at 365-66 (reformatted)
(applying former HRS § 378-2(2) (Supp. 2002))4 (citing Schefke v.
Reliable Collection Agency, Ltd., 96 Hawai#i 408, 426, 32 P.3d
52, 70 (2001)).
The evidence presented on Cambridge's MSJ showed:
Nacino began working for Cambridge on September 1, 2004. On
May 3, 2011, Nacino filed a charge against Cambridge (the 2011
Charge) with the Hawai#i Civil Rights Commission (HCRC) and the
Equal Employment Opportunity Commission (EEOC). He alleged
discrimination based on color (brown) and national origin or
ancestry (Filipino). By letter dated November 17, 2011, the HCRC
informed Nacino that it was closing the 2011 Charge, and that
Nacino had 90 days to file a private lawsuit.

4
Although HRS § 378-2 has since been amended, these amendments are
not relevant to the instant appeal. See, e.g., 2009 Haw. Sess. Laws Act 1, §
2 at 794-95; 2011 Haw. Sess. Laws Act 34, § 4 at 52-53; 2011 Haw. Sess. Laws
Act 206, § 2 at 675-77; 2013 Haw. Sess. Laws Act 248, § 2 at 748-49.

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Nacino filed the Discrimination Lawsuit on February 16,
2012. The complaint alleged (among other things) that Cambridge
and the other defendants "took adverse employment actions against
[Nacino] as a result of his complaints of discrimination,
harassment, unfair treatment, unequal pay, unequal hours and
disparate treatment." Cambridge terminated Nacino's employment
one month after the Discrimination Lawsuit was filed. The court
presiding over the Discrimination Lawsuit ultimately ruled that
Cambridge did not violate HRS Chapter 378 because the employee
who had received more favorable treatment than Nacino was also
Filipino and also had brown skin.
Nacino filed the lawsuit below on October 3, 2016. The
complaint below alleges (among other things):

B. On May 5 [sic], 2011, [Nacino] filed [the 2011 Charge]
against [Cambridge] with the HCRC and EEOC.

C. On February 16, 2012, [Nacino] filed [the
Discrimination Lawsuit] against [Cambridge] alleging
discrimination in the Circuit Court of the First
Circuit.

D. Within a month of filing [the Discrimination Lawsuit],
on March 16, 2012, [Nacino] was informed that he was
being terminated from his position of Maintenance
Technician.

. . . .
F. [Nacino] would not have been wrongfully terminated had
[Nacino] not filed [the 2011 Charge] with HCRC and
EEOC against [Cambridge] and filed the [Discrimination
Lawsuit].

G. [Nacino] was wrongfully terminated by [Cambridge] in
retaliation for filing [the 2011 Charge] with the HCRC
and EEOC against [Cambridge] and filing [the
Discrimination Lawsuit] in Circuit Court as aforesaid.

At trial, Nacino would have the burden of proving that
Cambridge terminated his employment because he "opposed any
practice forbidden by HRS Chapter 378[.]" Lales, 133 Hawai#i at
356, 328 P.3d at 365. HRS § 378-2(a)(2) forbids an employer from
terminating an employee's employment "because the individual has
. . . filed a complaint . . . respecting the discriminatory
practices prohibited under this part[.]" In its MSJ, Cambridge

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argued that Nacino could not establish a prima facie case of
retaliation. See Thomas v. Kidani, 126 Hawai#i 125, 130, 267
P.3d 1230, 1235 (2011) (explaining that a defendant without a
burden of proof at trial can satisfy its burden as summary
judgment movant by showing that the plaintiff cannot establish
the existence of an element of the claim at issue).
Viewed in the light most favorable to Nacino, the
evidence showed that Cambridge terminated Nacino's employment one
month after Nacino filed the Discrimination Lawsuit. Cambridge
does not dispute this timing; however, Cambridge argues that
Nacino could not have had an objectively reasonable belief that
Cambridge terminated his employment in violation of HRS § 378-
2(a)(2) because "[t]he record clearly establishes that [Nacino]'s
complaints in his [Discrimination Lawsuit] were not based on any
characteristic protected by HRS Chapter 378, and thus, he could
not establish the first element of the prima facie case for
retaliation."
Nacino's Discrimination Lawsuit complaint alleged:

21. [Nacino] has been subjected to adverse
employment actions, including but not limited to,
(a) failing to be given the pay increase promised by
agreement, (b) being unreasonably subjected to a demotion
and cut in pay, (3) having his work hours reduced without
explanation, (4) being treated differently than a similarly
situated co-worker, and (5) suffering false accusations from
his supervisors regarding the quality of his work.

22. These actions have created a hostile and
intimidating work environment for [Nacino]. He has been
subjected to harassment, discrimination, retaliation and
disparate treatment by [Cambridge] and its supervisors,
Bedell and Bradshaw[.]

23. [Nacino] complained to [Cambridge] and state
agencies about the unlawful treatment he has been subjected
to by [Cambridge, Bedell, and Bradshaw].
24. As a result of his complaints, [Nacino] has
suffered further mistreatment, including but not limited to
threats of termination by [Cambridge, Bedell, and Bradshaw]
if he refused to accept his demotion and wage/hour reduction
and additional unwarranted "write-ups". [Nacino]'s requests
for explanation for the adverse employment actions against
him have gone unanswered. [Cambridge, Bedell, and Bradshaw]
have failed to properly address [Nacino]'s inquiries and
instead responded with threats of termination and other
unlawful employment actions.

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. . . .
45. [Cambridge, Bedell, and Bradshaw's] actions
and/or omissions violate Hawaii Revised Statutes § 378-2.
. . . .

50. [Cambridge, Bedell, and Bradshaw's] actions
and/or omissions violate Hawaii Revised Statutes § 378-2.
. . . .
53. [Cambridge, Bedell, and Bradshaw] singled out
[Nacino] and treated him less favorably than others
similarly situated. [Cambridge, Bedell, and Bradshaw's]
conduct and actions were motivated by discriminatory intent.

Cambridge terminated Nacino's employment one month
after he filed the Discrimination Lawsuit — before that case had
been decided on the merits. The judgment in favor of Cambridge
and against Nacino in the Discrimination Lawsuit was entered on
April 16, 2015, more than three years after Cambridge terminated
Nacino's employment. Cambridge was ultimately found (in the
Discrimination Lawsuit) not to have discriminated against Nacino
based on any characteristic protected by HRS Chapter 378 (an
outcome from which Nacino did not appeal). But — viewing the
facts in the light most favorable to Nacino — that does not
necessarily mean Cambridge could not have terminated Nacino
because he filed a lawsuit alleging an HRS Chapter 378 violation.
"There is no requirement that a retaliation claim be
based on a successful discrimination claim." Gonsalves v. Nissan
Motor Corp., 100 Hawai'i 149, 162–63, 58 P.3d 1196, 1209–10
(2002) (first citing Aloha Islandair Inc. v. Tseu, 128 F.3d 1301,
1304 (9th Cir. 1997) (observing that "the Hawai#i statute
prohibiting retaliation does not condition the retaliation claim
on the merit of the underlying discrimination claim"); then
citing Moyo v. Gomez, 32 F.3d 1382, 1385 (9th Cir. 1994), amended
by 40 F.3d 982 (9th Cir. 1994) (stating that under Title VII it
is not necessary that the employment practice actually be
unlawful)).

There must be a "reasonable belief" that the employer has
engaged in an unlawful employment practice. Furthermore,
the reasonableness of the employee's belief that an unlawful

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employment practice occurred must be assessed according to
an objective standard — one that makes due allowance,
moreover, for the limited knowledge possessed by most Title
VII plaintiffs about the factual and legal bases of their
claims. We note again that a reasonable mistake may be one
of fact or law. We also note that it has been long
established that Title VII, as remedial legislation, is
construed broadly. This directive applies to the
reasonableness of a plaintiff's belief that a violation
occurred, as well as to other matters.

Gonsalves, 100 Hawai#i at 163, 58 P.3d at 1210 (cleaned up)
(reformatted) (quoting Moyo, 32 F.3d at 1385-86).
The evidence in the record, viewed in the light most
favorable to Nacino, could show that Cambridge terminated
Nacino's employment because Nacino filed the Discrimination
Lawsuit, which alleged a violation of HRS Chapter 378. That
would have been a violation of HRS § 378-2(a)(2). Under those
circumstances, it was error for the circuit court to grant
Cambridge's MSJ. See Lales, 133 Hawai#i at 358, 328 P.3d at 367
(noting that evidence of "the temporal proximity (amount [sic]
one month) between the complaint and the termination" raised an
issue of fact about whether the asserted reasons for the
termination were pretext for a discriminatory motive). Simply
stated, the resolution of the Discrimination Lawsuit in favor of
Cambridge does not resolve, as a matter of law, the factual
question of whether Cambridge fired Nacino in retaliation for
Nacino filing the Discrimination Lawsuit.
For the foregoing reasons, the Final Judgment entered
by the circuit court on November 19, 2019, is vacated, and this
case is remanded to the circuit court for further proceedings not
inconsistent with this summary disposition order.
DATED: Honolulu, Hawai#i, September 26, 2022.

On the briefs:
/s/ Lisa M. Ginoza
Earle A. Partington, Chief Judge
for Plaintiff-Appellant.
/s/ Keith K. Hiraoka
Jeffrey S. Portnoy, Associate Judge
Amanda M. Jones,
for Defendant-Appellee. /s/ Sonja M.P. McCullen
Associate Judge

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