Lee v. National Carpet

NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
17-APR-2024
08:23 AM
Dkt. 64 SO

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

JAMES W.K. LEE, Plaintiff-Appellant, v.
NATIONAL CARPET, Defendant-Appellee.
and
JOHN DOES 1-15, JANE DOES 1-5, DOE CORPORATIONS 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. 17-1-0625)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting C.J., and Wadsworth and Nakasone, JJ.)

Plaintiff-Appellant James W.K. Lee (Lee) appeals from
the May 20, 2019 Final Judgment (Judgment), entered in favor of
Defendant-Appellee National Carpet (National) and against Lee by
the Circuit Court of the First Circuit (Circuit Court).1/ Lee
also challenges the Circuit Court's April 29, 2019 "Order
Granting [National's] Motion for Summary Judgment" (Order). On
appeal, Lee contends that the Circuit Court erred in granting
summary judgment in favor of National.
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
Lee's contention as follows, and affirm.
Following an April 3, 2019 hearing on National's motion
for summary judgment, the Circuit Court ruled in relevant part:

1/
The Honorable Jeffery P. Crabtree presided.
NOT FOR PUBLICATION IN WEST'S HAWAII REPORTS OR THE PACIFIC REPORTER

With respect to [Lee's] claim asserting a wrongful
termination because of a disability in violation of Hawai #i
Revised Statute[s] ("HRS") § 378-2(a)(1), the Court finds
that [Lee] has not and cannot meet his prima facie burden to
show that he suffered from a disability protected by HRS
Chapter 378. In opposition to [National's] Motion, [Lee]
failed to present any medical records or admissible medical
evidence to establish that he had a disability as defined by
HRS Chapter 378. [Lee's] reliance on his declaration in
lieu of medical records is insufficient to meet his burden
to raise a question of fact on the issue of whether [Lee]
had a disability protected by HRS Chapter 378. Thorn v. BAE
Systems Hawai#i Shipyards, Inc., 586 F.[ ]Supp.[ ]2d 1213,
1221 (D. Hawai#i 2008). In addition, [Lee] has not
presented any evidence to raise an issue of fact regarding
whether his alleged disabilities limited his ability to
perform essential functions of his job.

Lee contends that the Circuit Court erred in granting
summary judgment in favor of National on Lee's claim that he
suffered "an impairment from gout and arthritis[,]" where Lee
stated in answers to interrogatories that "his gout was causing
him pain." Lee argues that "[i]t was not necessary to support
his claim of pain with medical records or other medical
evidence." Lee further argues that "there is no dispute that
[he] was suffering from gout and arthritis."
Lee points to nothing in the record supporting the
latter argument, which we therefore disregard. See Hawai#i Rules
of Appellate Procedure Rule 28(b)(4), (7). Indeed, our review of
the record reveals that Lee did not even allege below that he
suffered from arthritis as part of his claim. Not having raised
the issue below, Lee cannot raise it on appeal; his arthritis-
based claim is waived. See Ass'n of Apartment Owners of Wailea
Elua v. Wailea Resort Co., 100 Hawai#i 97, 107, 58 P.3d 608, 618
(2002) (arguments not raised in the trial court are ordinarily
deemed waived on appeal).
HRS § 378-2 makes it an unlawful discriminatory
practice "[f]or 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" because of a person's
disability. HRS § 378–2(a)(1)(A) (2015). To establish a prima
facie case of disability discrimination under HRS Chapter 378, "a
plaintiff has the burden of establishing that: (1) he or she is
an individual with a 'disability' within the meaning of the

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

statute; (2) he or she is otherwise qualified to perform the
essential duties of his or her job with or without reasonable
accommodation; and (3) he or she suffered an adverse employment
decision because of his or her disability." French v. Hawaii
Pizza Hut, Inc., 105 Hawai#i 462, 467, 99 P.3d 1046, 1051 (2004)
(adopting the analysis for establishing a prima facie case of
disability discrimination under HRS § 378–2 that was established
in Sutton v. United Air Lines, Inc., 527 U.S. 471, 477-78 (1999),
for disability discrimination under the Americans With
Disabilities Act of 1990 (ADA), 42 U.S.C. § 12101). HRS § 378–1
(2015) defines disability as "the state of having a physical or
mental impairment which substantially limits one or more major
life activities[.]" Thus, "a 'physical or mental impairment' is
a disability if the impairment 'substantially limits' a 'major
life activity.'" French, 105 Hawai#i at 467, 99 P.3d at 1051
(quoting HRS § 378–1).
Here, National moved for summary judgment on Lee's
claim of disability discrimination, arguing in part that Lee
could not establish a prima facie case because he had failed
during discovery to produce any evidence that he suffered from a
disability as defined by HRS § 378–1. See Ralston v. Yim, 129
Hawai#i 46, 48, 292 P.3d 1276, 1278 (2013) (where the non-movant
bears the burden of proof at trial, a summary judgment movant may
satisfy its initial burden by "demonstrating that the non-movant
will be unable to carry [its] burden of proof at trial"). In his
opposition to the motion, Lee relied on his own declaration,
which stated that he was diagnosed with gout in 2005; the gout
"would cause [his] right ankle and right elbow to swell"; he
would "have trouble standing and walking" when his ankle would
swell, and would "have trouble lifting" when his right elbow
would swell; he "needed to work a little slower at a time when
[he] was having an attack"; and he "would have a gout attack
about one time per month which would last one to two days." Lee
did not submit any medical documentation or a declaration by
either of his physicians supporting his opposition to the motion.
We recognize that standing, walking, and lifting are
major life activities. See Hawai#i Administrative Rules (HAR)

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