The Intermediate Court of Appeals of Hawai‘i has overturned a lower court’s decision to grant summary judgment in favor of Hawai‘i Pacific University (HPU) in a lawsuit brought by former employee Pamela Joyce Lough, who alleged she was fired due to her age (58) and sex. The appellate court found that the Circuit Court made significant errors in applying the correct legal standards for employment discrimination claims, meaning Lough’s case must now proceed to trial.
The Core Dispute: Wrong Legal Test Applied
Lough sued HPU, claiming her termination violated Hawai‘i Revised Statutes (HRS) § 378-2, which prohibits discrimination based on age or sex. HPU successfully convinced the Circuit Court to dismiss the case early through a Motion for Summary Judgment (MSJ). Summary judgment is granted only when there are no genuine disputes of material fact and the moving party is entitled to judgment as a matter of law.
On appeal, Lough argued the Circuit Court erred in several ways, primarily concerning the initial hurdle in discrimination cases: establishing a “prima facie” case.
Hawai‘i courts use a modified three-step framework, often associated with the federal *McDonnell Douglas* test, known in state law as the *Shoppe* framework. This framework requires:
1. The plaintiff establishes a prima facie case of discrimination.
2. The burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the action.
3. The burden reverts to the plaintiff to prove the employer’s reason was merely a pretext for discrimination.
Error One: Misstating the Prima Facie Case Requirements
The Intermediate Court of Appeals focused heavily on the first step. The Circuit Court, in its conclusions of law, listed four elements for Lough’s prima facie case but incorrectly modified the fourth element for a termination case.
The correct fourth element, when an employee is terminated, is showing that “the position still exists.” However, the Circuit Court incorrectly required Lough to show she was treated less favorably than “similarly situated employees that are younger and/or male.”
The appellate court clarified that this “less favorable treatment” standard is generally used when an employee remains employed but alleges discrimination through lesser benefits or opportunities. Because Lough alleged termination, the proper inquiry under established Hawai‘i precedent (*Adams* and *Nozawa*) was whether her position continued to exist in some form.
The appellate court noted that Lough had presented evidence—including testimony that her duties were being handled temporarily—suggesting the position had not been permanently eliminated. Because the Circuit Court based its initial dismissal on the wrong legal standard for this crucial fourth element, the appellate court ruled that the summary judgment on this ground was improper.
Error Two: Overlooking Genuine Disputes on Pretext
Even if Lough had failed the prima facie test, the court still needed to examine the employer’s justification (Step 2) and whether Lough could show it was a sham (Step 3). HPU claimed Lough was fired for a legitimate, non-discriminatory reason: sending confidential financial information about the university to an outside third party without authorization.
Lough strongly contested this justification. She argued that the information she shared—a “snippet” from an internal presidential update regarding budget cuts—was not the kind of confidential “business or financial information” HPU’s own policy prohibited sharing. Furthermore, she pointed out that other high-level HPU employees, including the President and CFO, had openly discussed the university’s financial difficulties with the media.
The Intermediate Court of Appeals found that Lough’s evidence created a “genuine issue of material fact” on whether HPU’s stated reason was legitimate or merely a pretext. If Lough could show that HPU enforced its confidentiality policy selectively—punishing her while ignoring similar disclosures by others—a jury could reasonably infer that the true motivation was discriminatory.
Because these factual disputes existed regarding the severity of her alleged misconduct and the consistency of HPU’s policy enforcement, the court concluded that HPU was not entitled to judgment as a matter of law.
Conclusion and Remand
The appellate court found that the Circuit Court erred both in applying the wrong legal test for the prima facie case and in failing to recognize the factual disputes surrounding HPU’s justification for the firing.
As a result, the Intermediate Court of Appeals vacated (cancelled) both the Circuit Court’s order granting summary judgment and the final judgment entered in HPU’s favor. The case is now sent back to the Circuit Court for further proceedings, which will likely involve a full trial where a jury or judge can weigh the evidence presented by both sides.