Ho v. Kiewit Building Group, Inc.

Filing 125

ORDER DENYING DEFENDANTS' MOTION FOR SUMMARY JUDGMENT, ECF NO. 97 re 97 - Signed by JUDGE J. MICHAEL SEABRIGHT on 3/11/2025. (jni)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF HAWAII
THOMAS I. HO,

CIV. NO. 17-00024 JMS-RT

Plaintiff,

ORDER DENYING DEFENDANTS’
MOTION FOR SUMMARY
JUDGMENT, ECF NO. 97

v.
KIEWIT BUILDING GROUP, INC.;
KIEWIT INFRASTRUCTURE WEST
CO.,
Defendants.

ORDER DENYING DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT, ECF NO. 97
I. INTRODUCTION
Defendants Kiewit Building Group, Inc., and Kiewit Infrastructure
West Co. (collectively, “Defendants” or “Kiewit”), move for summary judgment in
this diversity case brought by Plaintiff Thomas Ho (“Plaintiff” or “Ho”) alleging
unlawful retaliation under the Hawaii Whistleblower Protection Act (“HWPA”).
As explained to follow, the Motion is DENIED. Plaintiff is eligible to seek relief
under the HWPA, and genuine issues of material fact remain as to whether
Plaintiff’s termination was done in retaliation for protected conduct.

II. BACKGROUND
A.

Procedural Background
Plaintiff was terminated from his employment with Kiewit nearly ten

years ago, on April 30, 2015 (effective May 1, 2015). 1 The court thus begins with
some background explaining the age of this litigation. Plaintiff filed this suit in the
Circuit Court of the First Circuit, State of Hawaii, on July 1, 2016. See ECF No.
1-1. After it was served on December 20, 2016, Defendants removed the suit to
federal court based on diversity of citizenship on January 19, 2017. See ECF No. 1
at PageID.3.
On March 9, 2018, the parties stipulated to stay all proceedings to
allow them to explore settlement through mediation. See ECF No. 33.
Subsequently, on February 7, 2019, the court administratively closed the case after
such a stipulation by the parties. See ECF No. 38. After a discussion with a
Magistrate Judge, the case was reopened in November 2019, ECF No. 41, and a
series of settlement conferences were held in 2020. See ECF Nos. 44, 50–55.

1

For purposes of this Order, the court draws no distinction between Kiewit Building
Group, Inc., and Kiewit Infrastructure West Co. Although Plaintiff may have initially worked
for Kiewit Infrastructure West before his later transfer to Kiewit Building Group when he was
fired, much of the record does not distinguish between the two corporate entities for purposes of
his employment. For example, some key employees for Kiewit (e.g., Vice President Sharon
Thom and manager Jane Sewell) were involved with Plaintiff’s employment and termination
both before and after the transfer.
2

Defendants then filed a Motion for Summary Judgment on November
16, 2020, which was set for hearing on January 7, 2021. ECF No. 57, 59. On
December 28, 2020, the case was re-assigned to this court after the then-assigned
Judge recused himself, ECF No. 64, and the Motion was rescheduled for March
2021. After a further settlement conference, the parties again agreed to
administratively close the case on February 3, 2021, ECF No. 68, and the pending
Motion was taken off calendar.
From July 7, 2021, through February 23, 2024, the parties filed nine
joint status reports requesting that the case remain closed and that the
administrative stay remain in place. See ECF Nos. 71, 72, 74, 75, 78–82. The
parties were apparently awaiting resolution of a related workers’ compensation
matter, with an intent to pursue a global settlement. See ECF No. 82 at
PageID.678. Meanwhile, counsel for Defendants retired, and new counsel entered
their appearances. ECF No. 77.
On March 14, 2024, a Magistrate Judge told the parties at a status
conference that “the Court is not inclined to permit this matter to remain
administratively closed without any clear indication as to when a resolution is
anticipated.” ECF No. 85. The parties were then ordered to enter private
mediation. Id. After that mediation apparently failed, the case was re-opened on
September 3, 2024. ECF No. 93.
3

Defendants re-filed a Motion for Summary Judgment on September
25, 2024. ECF No. 97. Plaintiff filed his Opposition on October 9, 2024, ECF No.
99, and Defendants filed their Reply on October 25, 2024, ECF No. 104. The
court held a hearing on the Motion on November 26, 2024. During the hearing, the
court requested supplemental briefing, and additional briefing was filed on
December 6, 2024, and on December 13, 2024. See ECF Nos. 109, 111.
B.

Factual Background
Plaintiff was an engineer at Kiewit, with most of the events at issue in

this litigation occurring in 2014, when he was an environment compliance manager
for Kiewit’s work on the Honolulu rail project in West Oahu. The suit alleges that,
during his recent tenure, he reported several violations of federal, state, or local
environmental laws or regulations. He was met with resistance from Kiewit
internally, and he claims several incidents of adverse actions as a result of his
reporting.2 Plaintiff then suffered a work-related injury in September of 2014, in
conjunction with a re-assignment from the rail project to a project at a school in
Kapolei. After experiencing difficulty with workers’ compensation matters and

2

This factual background section is primarily based on written testimony in the form of
Plaintiff’s declaration, as supported by numerous documents and emails. See ECF Nos. 100
through 100-46. Defendants offer substantial evidence as to the context of Plaintiff’s testimony,
and the reasons for his termination from their point of view. Although Defendants’ evidence
sheds light on the context of Plaintiff’s testimony, and could indicate no retaliatory motive, the
court is obligated at this summary judgment stage to construe evidence in the light most
favorable to Plaintiff. See, e.g., Scott v. Harris, 550 U.S. 372, 378 (2007).
4

with his medical condition, Plaintiff was terminated from Kiewit after refusing a
severance offer. The suit claims retaliation for engaging in protected activity under
the HWPA. Some of the key details are set forth in a timeline fashion as follows
(with some evidence that is particularly relevant to causation detailed later in the
appropriate discussion sections of the Order):
Late 2009

Plaintiff begins his job as an Environmental Compliance
Manager for Kiewit Infrastructure West, working on
Honolulu’s Rail Transit Project. Prior to that he worked
for Kiewit for about 10 years, starting as a field engineer.
ECF No. 100-1 at PageID.882.

March 3, 2014

Plaintiff writes emails to Kevin Young, Project Manager
of the Kamehameha Guideway Segment of the rail
project, noting that Kiewit’s actions were not allowed
“pursuant to the noise permit or variance.” Id. at
PageID.886. “Mr. Young acknowledged [Plaintiff] was
correct but proceeded anyway without the required
written authorization . . . .” Id.

March 2024

Plaintiff’s discussion with Mr. Young is passed to his
supervisor, Brent Scheele, who asks Ho, “How much
money do we have to lose to make it acceptable to you to
be out of compliance just for a little while?” Id. at
PageID.886–887.

March 5, 2014

Plaintiff sends another violation-related email. ECF No.
100-4 at PageID.932–936. Plaintiff claims he was “made
out to be ‘The problem’ and managers would compare
[him] to being a ‘Cop’ or police officer for strictly
enforcing the law.” ECF No. 100-1 at PageID.888.

March 11, 2014

Plaintiff meets with manager Tracy Martin regarding
previous reports and the “authenticity of [Ho’s] signature
on a HDOT permit,” which appeared to be fraudulent.
Id. Martin tells him “Right now, we’re not on the same
5

team. And [long term if] we can’t be on the same team,
then one of us has to go to a different team, [Okay?].”
Id.
April 10, 2014

An inspector from the Honolulu Department of
Transportation emails a report about “several violations
on the Kamehameha Highway Guideway.” Id. at
PageID.894. The violations “have to do with illegal
concrete washout, improper shortage of asphalt cold
patch material, oil leaking from machinery onto ground
and into trench[,] as well as failure to abide by the project
noise permit and variance.” Ho is informed by Kiewit
managers “to keep my comments regarding illegalities to
myself.” Id.

April 11, 2014

Plaintiff sends an email with notes regarding violations to
Area Manager Sharon Thom. ECF No. 100-8 at
PageID.972. The notes “covered falsification of
documents, lack of properly trained staff, violations in
regards to [several federal environmental laws] and other
issues.” ECF No. 100-1 at PageID.895.

April 22, 2014

Plaintiff sends an email to HART informing it that he
would be leaving the rail project “for reasons he could
not discuss,” apparently for an environmental position on
the Big Island. Id. at PageID.893, 895. Plaintiff claims
he was denied this lateral position. Id. at PageID.893.
Ho claims that “[t]his was the beginning of numerous,
consistent adverse employment actions taken against me
for reporting illegalities with respect to Environmental
issues connected to the rail project.” Id.

June 2014

Kiewit officials from Nebraska come to Hawaii to
investigate Plaintiff’s claims regarding noncompliance
with city, state and federal environmental laws. Id. at
PageID.896. Plaintiff attests that during the
investigation, investigators “grilled me for information
for days on end until basically they told me: ‘Thomas, the
6

problem is that you are right . . . you are right about all of
the issues.’” Id. at PageID.897.
June 9, 2014

After Kiewit conducts an internal investigation, a Kiewit
District Environmental Manager, Robert Brenner, writes
a letter or report (draft) agreeing with Plaintiff. See ECF
No. 100-13 at PageID.985. The lengthy letter/report
concludes among other things that
“there are significant environmental issues that
must be dealt with immediately.” “[Plaintiff] very
clearly knows the federal, state, and local laws, as
well as the permit conditions under which the
project operates . . . I believe that the problems
Thomas point out are either ignored, along with
[plaintiff’s] direction, or the staff do not know that
environmental issues are actually important . . . .
The project is currently at grave risk of receiving
notices of violation and fines if a regulatory
inspector show up on the site . . . .”
ECF No. 100-1 at PageID.898; ECF No. 100-13 at
PageID.985. Plaintiff attests that Brenner was told by
Kiewit to delete the letter and send out a “significantly
redacted version.” ECF No. 100-1 at PageID.898.

June 2014

Plaintiff has discussions with Sharon Thom about
Plaintiff’s “thoughts for going forward.” Id. at
PageID.899. Plaintiff claims that during this period “I
was told that there was no future for me in environmental
with [Kiewit].” Id. at PageID.900. “Because of that, at
Sharon Thom’s urging, I did mention that I wished to
return to engineering, in the hopes that I could get the . . .
Maintenance and Storage Facility (MSF) Rail job that I
was being recruited for which entailed both
environmental and engineering skill sets and work.” Id.
“Sharon Thom told me to say this in my email so that she
could get me off of the job I was currently at.” Id.

7

July 21, 2014

Plaintiff reports and discusses complaints regarding
violations of law regarding dirt and dust blowing from
Kiewit construction sites near Aloha Stadium onto
nearby homes. Id. at PageID.903; ECF No. 100-18 at
PageID.1007–1008.

August 19, 2014

Plaintiff reports and discusses another violation regarding
petroleum tainted soil. ECF No. 100-1 at PageID.904;
ECF No. 100-19 at PageID.1012.

August 2014

Plaintiff attests that he was not allowed to take a lateral
position at the Kiewit Maintenance and Storage Facility
Rail Project. ECF No. 100-1 at PageID.905.

Sept. 4, 2014

Plaintiff is “visited by Sharon Thom to discuss the future
of my career with Defendants going forward.” Id. Thom
begins by questioning Plaintiff’s work attendance based
on GPS records of the company truck. Id. Thom says to
him “that she felt that the Rail management were gunning
for me and that she just needed to get me off the job and
to just bear with it.” Id. at PageID.906.

Sept. 7, 2014

Thom tells Plaintiff he would be relocated to a Kiewit
project at Kapolei II Elementary School. Id. at
PageID.907. Plaintiff is confused by this reassignment.
Id. at PageID.907–908.

Sept. 9, 2014

Thom informs Plaintiff that instead he is being offered a
job in Denver, Colorado. He “was told that Defendants
and rail management wanted [him] to relocate to Denver,
Colorado.” Id. at PageID.908. The engineering position
included a pay cut with lesser benefits. Id. Plaintiff
considers the position but declines it. Id. at PageID.909.

Sept. 17, 2014

Plaintiff is relocated to the Kapolei project. This is an
entry level engineering position, with lesser benefits. Id.
at PageID.910. Plaintiff attests that he “was not given a
choice with respect to the Kapolei II [position].” Id.

8

Sept. 2014
Sept. 2014 to
April 2015

April 30, 2015

Plaintiff injures his back while loading boxes and
furniture relocating things to Kapolei.
Plaintiff has multiple issues with a workers’
compensation claim, his back injury, and multiple
instances of work absences. These events are detailed in
the discussion section to follow when analyzing whether
Plaintiff has met a burden to demonstrate a causal
connection between protected activity and adverse
employment action.
Plaintiff is terminated from employment as of May 1,
2015, with eligibility for being rehired, telling him “[a]t
such time [] that you are able to return to work, please
contact [Kiewit] and we will review open positions with
you.” ECF 98-29 at PageID.813.

According to representations from Plaintiff’s counsel at the hearing on
the Motion, Plaintiff has remained on disability since his termination.
III. STANDARD OF REVIEW
Summary judgment is proper when there is no genuine issue of
material fact, and the moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a). “An issue is ‘genuine’ only if there is a sufficient evidentiary
basis on which a reasonable fact finder could find for the nonmoving party, and a
dispute is ‘material’ only if it could affect the outcome of the suit under the
governing law.” In re Barboza, 545 F.3d 702, 707 (9th Cir. 2008) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

9

“The moving party initially bears the burden of proving the absence of
a genuine issue of material fact.” In re Oracle Corp. Sec. Litig., 627 F.3d 376, 387
(9th Cir. 2010). “When the moving party has carried its burden . . . its opponent
must do more than simply show that there is some metaphysical doubt as to the
material facts”; instead, the opponent must “come forward with specific facts
showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 586–87 (1986) (citation and internal quotation
marks omitted). “This burden is not a light one. The non-moving party must show
more than the mere existence of a scintilla of evidence.” In re Oracle, 627 F.3d at
387 (citation omitted); see also Anderson, 477 U.S. at 248 (stating that a party
cannot “rest upon the mere allegations or denials of his pleading” in opposing
summary judgment).
When considering a motion for summary judgment, the court views
the facts and draws reasonable inferences in the light most favorable to the
nonmovant. See, e.g., Scott, 550 U.S. at 378. “[T]he court does not make
credibility determinations or weigh conflicting evidence. Rather, it draws all
inferences in the light most favorable to the nonmoving party.” Soremekun v.
Thrifty Payless, Inc., 509 F.3d 978, 984 (9th Cir. 2007).

10

IV. DISCUSSION
A.

Hawaii Whistleblower Protection Act Claim
The Complaint alleges a single claim for retaliation in violation of the

HWPA, which is set forth in HRS § 378-62. 3
An HWPA claim under § 378–62 has three requirements.
First, an employee must have “engaged in protected
conduct” as defined by HRS § 378-62(1). Second, the
employer must take some “adverse action” against the
employee. And third, there must be “a causal connection
between the alleged retaliation and the
‘whistleblowing.’” To meet the causal connection
requirement, an “employer’s challenged action must have

3

Section 378-62 provides:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee’s
compensation, terms, conditions, location, or privileges of
employment because:
(1) The employee, or a person acting on behalf of the employee,
reports or is about to report to the employer, or reports or is about
to report to a public body, verbally or in writing, a violation or a
suspected violation of:
(A) A law, rule, ordinance, or regulation, adopted pursuant
to law of this State, a political subdivision of this State, or
the United States; or
(B) A contract executed by the State, a political subdivision
of the State, or the United States, unless the employee
knows that the report is false; or
(2) An employee is requested by a public body to participate in an
investigation, hearing, or inquiry held by that public body, or a
court action.
11

been taken ‘because’ the employee engaged in protected
conduct.”
Tagupa v. VIPdesk, Inc., 125 F. Supp. 3d 1108, 1119 (D. Haw. 2015) (quoting
Griffin v. JTSI, Inc., 654 F. Supp. 2d 1122, 1131 (D. Haw. 2008)); see also Crosby
v. State Dept. of Budget & Fin., 76 Haw. 332, 342, 876 P.2d 1300, 1310 (1994).
The three elements of a prima facie case of retaliation are examined as
part of a framework adopted from McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973). See Chan v. Wells Fargo Advisors, LLC, 124 F. Supp. 3d 1045, 1055
(D. Haw. 2015) (“In Crosby . . . the Hawaii Supreme Court essentially adopted the
familiar McDonnell Douglas burden-shifting framework for claims under [the
HWPA].”); see also, e.g., Bassett v. Haw. Disability Rts. Ctr., 2020 WL 7351113,
at *16 (D. Haw. Nov. 20, 2020) (“[C]ourts apply the McDonnell Douglas
framework to retaliation claims under the HWPA.”) (citations omitted). That is, in
lieu of direct evidence of retaliation,
[u]nder the McDonnell Douglas framework, the plaintiff
must first establish a prima facie case of retaliation by
showing (1) involvement in a protected activity, (2) an
adverse employment action, and (3) a causal link
between the two. Once a plaintiff has made a prima facie
showing, the burden of production, but not persuasion,
shifts to the defendant to articulate some legitimate,
nondiscriminatory reason for the challenged action.
Should the defendant carry its burden, the burden then
shifts back to the plaintiff to raise a triable issue of fact

12

that the defendant’s proffered reason was a pretext for
unlawful retaliation.
Bassett, 2020 WL 7351113, at *11 (internal citations, quotation marks, and
brackets omitted); see also Chan, 124 F. Supp. 3d at 1055–1057 (applying
McDonnell Douglas to HWPA claim). 4 “The burden of proof, however, always
remains with the plaintiff.” Chan, 124 F. Supp. 3d at 1055.5 At this point, “the
McDonnell Douglas framework ‘disappears,’ and ‘the sole remaining issue is
discrimination vel non.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062
(9th Cir. 2002) (quoting Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 143
(2000) (some marks omitted)).
“Under the McDonnell Douglas framework, the requisite degree of
proof necessary to establish a prima facie case . . . on summary judgment is
minimal and does not even need to rise to the level of a preponderance of the

4

“The McDonnell Douglas framework is ‘a tool to assist plaintiffs at the summary
judgment stage’ in cases where there may be ‘difficulties in proving intent to discriminate in a
disparate treatment context.’” Bassett, 2020 WL 7351113, at *11 n.13 (quoting Costa v. Desert
Palace, Inc., 299 F.3d 838, 854–55 (9th Cir. 2002)). “Alternatively, a plaintiff may ‘simply
produce direct or circumstantial evidence demonstrating that a discriminatory or retaliatory
reason more likely than not motivated the employer.’” Id. (quoting Surrell v. Cal. Water Serv.
Co., 518 F.3d 1097, 1105 (9th Cir. 2008) (internal brackets omitted)).
5

In Tagupa, the court analyzed an HWPA claim by applying Crosby and analyzing the
causal connection element in conjunction with the affirmative defense and pretext prongs—
essentially applying McDonnell Douglas without specifically citing to its standards. See 125 F.
Supp. 3d at 1120–24.
13

evidence.” Kama v. Mayorkas, 107 F.4th 1054, 1059 (9th Cir. 2024) (quoting
Opara v. Yellen, 57 F.4th 709, 722 (9th Cir. 2023)).
This minimal burden is doubtless justified by the fact that
those discriminating against a person because of that
person’s protected activity may not, in their statements
and documents, create direct evidence of discrimination,
though the claim against them is equally justified as in a
case where the discrimination has been admitted.
Id.
B.

The Scope of the Motion
Defendants’ Motion first argues that Plaintiff cannot prove the first

element (“protected conduct”) of a prima facie case because he was an
environmental compliance manager. They argue that because it was Plaintiff’s job
to investigate and report violations or suspected violations of law to his employer,
such reporting cannot be “protected” under the HWPA. If Defendants are correct
regarding a “compliance job” exception, then Plaintiff’s entire HWPA claim fails
as a matter of law, regardless of whether the other elements could be met.
Second, Defendants argue that Plaintiff is unable to establish the third
element—a causal connection between his termination and any protected
conduct—of a prima facie case of retaliation. And third, in arguing a lack of
causation, Defendants contend that Plaintiff’s HWPA claim fails because they
terminated him for an inability to fulfill work functions and come to work—a
legitimate, nondiscriminatory reason for the adverse action.
14

As to the second and third arguments, the Motion is limited to the
“adverse action” of Plaintiff’s May 1, 2015 termination. Plaintiff’s Opposition,
however, identifies other potential “adverse actions” besides the termination such
as being reassigned or being denied lateral transfers after Plaintiff reported—albeit
internally—potential legal violations. See Chan, 124 F. Supp. 3d at 1056
(reiterating that “an [HWPA] action is cognizable as an adverse employment action
if it is reasonably likely to deter employees from engaging in protected activity”)
(quoting Black v. Correa, 2008 WL 3845230, at *11 (D. Haw. Aug. 18, 2008));
Crosby, 76 Haw. at 341, 876 P.2d at 1309) (“[T]he HWPA provides protection to
employees who report suspected violations of law from ‘any form of retaliation by
their employers.’”) (quoting Sen. Stand. Comm. Rep. No. 1127, in 1987 Senate
Journal, at 1392)).
But, as the court stated during the hearing on the Motion, the court
does not consider this Motion as being directed to those other potential adverse
actions—in this regard, the court views the Motion essentially as seeking partial
summary judgment as to termination only. As to other adverse actions, Defendants
have not met their initial burden at summary judgment to demonstrate an absence
of evidence to support Plaintiff’s case. See, e.g., In re Oracle, 627 F.3d at 387
(reiterating the summary judgment standard, including that “[t]he moving party
initially bears the burden of proving the absence of a genuine issue of material
15

fact”) (citing Celotex Corp v. Catrett, 477 U.S. 317, 323 (1986)). For this reason,
the court does not analyze the evidence pertaining to whether Defendants
unlawfully retaliated against Plaintiff other than his ultimate termination (nor does
this Order recount all the details regarding other possible “adverse actions”).
During the hearing, Defendants appeared to argue that the allegedly
adverse actions (other than termination) raised in Plaintiff’s Opposition are new,
suggesting that the Complaint itself is limited to termination. The court, however,
reads the Complaint as indeed alleging—although in a jumbled fashion—several
incidents that might constitute adverse actions aside from termination, that is,
actions which could reasonably “deter employees from engaging in protected
activity.” Chan, 124 F. Supp. 3d at 1056.6
The court first addresses a “compliance job” exception to an HWPA
claim, and then addresses the causation element—whether the record supports a
theory that Plaintiff’s termination was in retaliation for protected activity. Then,

6

The Complaint was filed in state court before being removed to federal court, and
therefore it did not need to meet the Twombly/Iqbal plausibility standard, at least when it was
filed. See Bank of Am., N.A. v. Reyes-Toledo, 143 Haw. 249, 252, 428 P.3d 761, 764 (2018)
(expressly rejecting the plausibility standard and reaffirming that Hawaii state courts are
governed by “notice” pleading standards), overruled on other grounds by Wilmington Savings
Fund Society, FSB v. Domingo, 155 Haw. 1, 556 P.3d 347 (2024). And under Hawaii’s notice
pleading standards, the Complaint alleges, after 18 pages of factual allegations, that “[t]he above
acts . . . constitute a violation of the [HWPA]” and that “[a]s a result of the aforementioned
wrongful, unlawful, and illegal acts and/or omissions . . . Plaintiff suffered [damages].” ECF No.
1-1 at PageID.22–23. That is, under either pleading standard, the Complaint read broadly is not
limited to Plaintiff’s termination as the basis for the HWPA claim.
16

the court address the other prongs of the McDonnell Douglas framework—whether
Defendants’ defense of a non-discriminatory reason for termination is sufficient
and whether there is evidence of pretext.
C.

Protected Activity: Hawaii Courts Would Not Apply a “Compliance
Job” Exception to the HWPA
It is undisputed that Plaintiff’s job duties as the Environmental

Compliance Manager include reporting to Defendants of noncompliance or
suspected noncompliance with environmental laws or regulations. See ECF No.
98-2 at PageID.744 (listing Plaintiff’s responsibilities as including “Bi-Weekly
reporting of compliance [with all environmental regulations] to internal and
external partners” and “[t]imely reporting of incidents via the Kiewit tracking
system”). Defendants ask the court to adopt an exception to the HWPA that
precludes employees whose job duties require reporting noncompliance to the
employer from making HWPA claims, arguing that such internal reporting is not
“whistleblowing” because it is activity that such employees are expected to
perform. Defendants argue that “[w]here an employee’s job duties include
reporting to the employer non-compliance with laws or regulations, courts have
consistently held that the employee’s reports of such non-compliance to the
employer do not constitute whistleblowing protected activity or protected activity
that can serve as a basis for a retaliatory discharge claim.” ECF No. 97-1 at
PageID.721–722.
17

Defendants’ Motion cites three cases for the proposition that “courts
have consistently held” that no protected activity occurs where an employee’s job
duties include reporting non-compliance. See id. at PageID.722 (citing Klaus v.
Vill. of Tijeras, 2022 WL 4289952 (D.N.M. Sept. 16, 2022); Cottrell v. Greenwell,
2021 WL 741781 (W.D. Ky. Feb. 25, 2021); and Wolf v. Pac. Nat’l Bank, 2010
WL 5888778 (S.D. Fla. Dec. 28, 2010)). 7 Klaus, applying New Mexico law,
granted summary judgment for an employer on a New Mexico Whistleblower
Protection Act claim because plaintiff’s alleged reporting activity was not “outside
of her defined job duties.” Klaus, 2022 WL 4289952, at *10. Similarly, Cottrell,
although denying summary judgment to an employer because the plaintiff’s job
duties were disputed, indicated that under Kentucky law the plaintiff’s job duties
were relevant in determining whether he had engaged in whistleblowing. See
Cottrell, 2021 WL 741781, at *5. And a magistrate judge in Wolf recommended
dismissal of a bank president’s federal whistleblower claim, reasoning that “[i]t is
well established in federal whistleblower cases that a plaintiff does not engage in
protected activity by disclosing violations of law as part of his job responsibilities.”
Wolf, 2010 WL 5888778, at *10 (citing Sasse v. United States Dep’t of Labor, 409
F.3d 773, 779–80 (6th Cir. 2005)).

7

Defendants’ Reply also cites Huffman v. Office of Personnel Management, 263 F.3d
1341, 1351–53 (Fed. Cir. 2001), for the same proposition. See ECF No. 104 at PageID.1118 n.2.
18

Despite those cases, Defendants acknowledge that no published
Hawaii case has addressed—one way or the other—whether Hawaii law follows
such a “compliance job” exception for a retaliation claim of any sort (and the court
has not found a published Hawaii case directly on point). See Tongson v. County
of Maui, 621 F. Supp. 2d 1019, 1024 (D. Haw. 2008) (declining to exercise
supplemental jurisdiction over HWPA claim, in part, because of this same open
and novel issue of state law).8 And the parties also acknowledge that a split of
authority appears to exist in case law from other jurisdictions.9
“In the absence of controlling state law, a ‘federal court sitting in
diversity must use its own best judgment in predicting how the state’s highest court
would decide the case.’” Tirona v. State Farm Mut. Auto. Ins. Co., 812 F. Supp.
1083, 1085 (D. Haw. 1993) (citations omitted). “Without certifying a question to
the [State] Supreme Court, ‘[federal courts] are required to ascertain from all the
available data what the state law is and apply it.’” Soltani v. W. & S. Life Ins. Co.,
8

Tongson reasoned that “Defendants’ motions for summary judgment raise novel issues
of state law that would require this Court to construe certain portions of the HWPA that have not
yet been addressed by Hawaii state courts.” 621 F. Supp. 2d at 1024. A motion in Tongson
“request[ed] summary judgment against [the plaintiff] on the ground that she cannot have a cause
of action under the HWPA for reporting wrongdoing because [the plaintiff’s] job itself ‘placed
her in a special position to identify the errors and bring them to the attention of her supervisors.’”
Id. (quoting defendant’s motion) (some brackets omitted). Tongson observed that “[w]hether
this would constitute ‘reporting’ is an issue that has not yet been addressed by Hawaii courts.”
Id. Tongson also recognized that “Hawaii courts have not yet ruled on whether a ‘report’ under
the HWPA must be made to a third party, or whether an employee can ‘report’ a wrongdoer’s
conduct to the wrongdoer himself.” Id. at 1025.
9

Defendants’ position ultimately appears—at best—to be a minority view.
19

258 F.3d 1038, 1045 (9th Cir. 2001) (quoting Ins. Co. of Penn. v. Associated Int’l
Ins. Co., 922 F.2d 516, 520 (9th Cir. 1990)). “In so doing, a federal court may be
aided by looking to well-reasoned decisions from other jurisdictions.” Takahashi
v. Loomis Armored Car Serv., 625 F.2d 314, 316 (9th Cir. 1980). After analyzing
the cases cited by Defendants, examining “well-reasoned decisions from other
jurisdictions,” id., and considering the statutory language, the court predicts that
Hawaii would reject a “compliance job” exception to the HWPA.
1.

Case Law from Other Jurisdictions Weighs Heavily Against
Adopting an Exception
Although the court has not canvassed all other jurisdictions, many, if

not most, jurisdictions have rejected a job-based exemption from retaliation
claims—even under a limited situation where an employee’s entire job is
compliance related (i.e., as distinguished from where an employee might have only
some job duties that entail compliance reporting). See, e.g., Menard v. Targa
Resources, LLC, 366 So. 3d 1238, 1244 (La. 2023) (rejecting a job duty exception,
reasoning in part that “judicially inserting a job duty exception into [the Louisiana
Environmental Whistleblower Statute] results in employees who likely have the
most knowledge of environmental violations not being protected from retaliation,”
and distinguishing prior federal law); City of Fort Worth v. Pridgen, 653 S.W.3d
176, 186 (Tex. 2022) (rejecting the argument that employees who report violations
of law as part of their jobs are not protected under a Texas Whistleblower Act);
20

Lippman v. Ethicon, Inc., 119 A.3d 215, 230 (N.J. 2015) (“[W]e find no support in
[the New Jersey Conscientious Employee Protection Act’s] language, construction,
or application in this Court’s case law that supports that watchdog employees are
stripped of whistleblower protection as a result of their position or because they are
performing their regular job duties.”); Brown v. Mayor of Detroit, 734 N.W.2d
514, 518 (Mich. 2007) (“[T]here is . . . no language in the [Michigan] statute that
limits the protection of the [Michigan Whistleblowers Protection Act] to
employees who report violations or suspected violations only if this reporting is
outside the employee’s job duties.”). 10 And after careful examination of the
Hawaii statute and of relevant opinions on both sides of the question, the court
adopts the view of these courts that reject an exception—indeed, in contrast, all the
cases cited by Defendants stand on shaky ground.
Defendants rely heavily on Klaus, in which the U.S. District Court for
the District of New Mexico applied then-existing New Mexico law and granted
summary judgment in favor of an employer, reasoning in part that no
whistleblowing occurred for an employee whose job duties “contemplated her
familiarity with and identification of potential and/or actual violations of laws
10

See also Pippin v. Boulevard Motel Corp., 835 F.3d 180, 183 (1st Cir. 2016)
(reiterating that “no broad-based job duties exception” applies under the Maine Whistleblowers’
Protection Act, and explaining that “although a particular employee’s job duties may be relevant
in discerning his or her actual motivation in reporting information, those duties are not
dispositive of” whether an employee engaged in protected activity) (quoting Harrison v. Granite
Bay Care, Inc., 811 F.3d 36, 51 (1st Cir. 2016)) (applying Maine law).
21

regarding government administration and reporting them to the Mayor.” 2022 WL
4289952, at *10. Klaus reasoned that the plaintiff “was not putting her job security
at risk for the benefit of the public, but instead was doing her job.” Id. (citing Wills
v. Bd. of Regents of Univ. of N.M., 357 P.3d 453, 457 (N.M. App. 2015), and
reasoning that “whistleblower laws are designed to protect employees who risk
their own personal job security for the benefit of the public”) (citation omitted). 11
But Wills—the main support for that ruling in Klaus—appears to no
longer be good law in New Mexico on this point. In 2023—after Klaus was
decided—the New Mexico Court of Appeals issued Lerma v. State, 541 P.3d 151
(N.M. App. 2023), which: (1) rejected the argument that a New Mexico
whistleblowing claim must be made “outside an employee’s ordinary job duties,”
id. at 156; and (2) explicitly rejected Wills’ reading of the New Mexico WPA, see
id. at 158 (finding Wills was “based on unsound reasoning” and was
“methodologically flawed”).12 In short, Lerma undermines Klaus.

11

Klaus also cited to an unpublished decision of the New Mexico Court of Appeals,
Kakuska v. Roswell Indep. Sch. Dist., 2019 WL 2103358 (N.M. Ct. App. Apr 16, 2019), for the
same proposition that “any public employee seeking the [New Mexico Whistleblower Act’s]
protection must show evidence of a communication pertaining to a ‘matter of public interest and
that the communication is not made primarily for the benefits of the employee, or as part of the
employee’s normal job responsibilities.” Klaus, 2022 WL 4289952, at *10 (quoting Kakuska,
2019 WL 2103358, at *4) (emphasis added). In turn, Kakuska cited to Wills as support. See
2019 WL 2103358, at *4.
12

The New Mexico Supreme Court granted certiorari in Lerma on December 28, 2023.
See Lerma v. State, 546 P.3d 1266 (N.M. Dec. 23, 2023) (table) (indicating that certiorari was
granted in No. S-1-SC-40126). That appeal remains pending.
22

This reading is confirmed by Mascarenas v. Village of Angel Fire,
New Mexico, 2023 WL 6391502 (D.N.M. Sept. 30, 2023), in which a more recent
decision from the District of New Mexico rejected a “job duty” exception to the
New Mexico WPA, reasoning as follows:
Defendants further contend that Plaintiff’s disclosures . . .
fall outside of WPA’s protection because his disclosures
concerned communications he was required to make as
part of his job as Chief Procurement Officer of the
Village. . . . Citing to Wills v. Board of Regents of
University of New Mexico as one of their main sources of
authority, Defendants contend that the WPA does not
protect communications that employees are required to
make as part of their job responsibilities. 357 P.3d 453
(N.M. Ct. App. 2015) . . . . However, in Lerma, the New
Mexico Court of Appeals recently rejected the Wills
reading of the WPA, ruling that communications made
through ordinary workplace channels or as part of an
employee’s normal work duties are not excluded from
protection under the WPA. 2023 WL 5696175, at *1. In
light of Lerma, the Court finds that all of Mascareñas[’]
alleged disclosures, regardless of whether they were
made as communications he was required to make as part
of his job, fall inside WPA’s protection.
2023 WL 6391502, at *12.
Similarly, the other cases cited by Defendants—Cottrell, Wolf, and
Sasse—have also been undermined. Those cases were all in some manner based
on Federal Circuit opinions Willis v. Department of Agriculture, 141 F.3d 1139
(Fed. Cir. 1998), and Huffman v. Office of Personnel Management, 263 F.3d 1341
(Fed. Cir. 2001), which indeed held that the federal WPA did not apply to
23

employees with compliance duties, in part because reports of violations were not
considered to be protected “disclosures.” See Cottrell, 2021 WL 741781, at *4–6
(citing Willis and Huffman, among other cases); Wolf, 2010 WL 5888778, at *10
(citing Huffman, among other cases); Sasse, 409 F.3d at 780 (applying Willis and
Huffman to other federal whistleblower statutes).
Willis affirmed the dismissal of a federal WPA claim because “[p]art
of Willis’ job duties . . . was to review the conservation compliance of farms
within his area,” and so “[i]n reporting some of them as being out of compliance,
he did no more than carry out his required everyday job responsibilities.” 141 F.3d
at 1144. And Huffman expanded on Willis, finding “no clear evidence in the
legislative history of the [federal] WPA . . . that the WPA was designed to trigger
protection for performance of normal duties.” 263 F.3d at 1353. “The WPA was
established to protect employees who go above and beyond the call of duty and
report infractions of law that are hidden.” Id.
But Congress responded to Willis and Huffman with the
Whistleblower Protection Enhancement Act of 2012 (“WPEA”), which amended
the federal WPA in part “to clarify the disclosures of information protected from
prohibited personnel practices.” Pub. L. 112-199, 126 Stat 1465 (Nov. 27, 2012).
See, e.g., Alguard v. Vilsack, 2015 WL 667787, at *3 (E.D. Wash. Feb. 17, 2015)
(explaining that Congress in the WPEA clarified that “a ‘disclosure . . . made
24

during the normal course of duties of an employee’ is a protected disclosure under
the Act.”) (quoting Pub. L. No. 112-199 at § 101). Specifically, 5 U.S.C.
§ 2302(f)(2) now provides:
If a disclosure is made during the normal course of duties
of an employee, the principal job function of whom is to
regularly investigate and disclose wrongdoing (referred
to in this paragraph as the “disclosing employee”), the
disclosure shall not be excluded from subsection (b)(8)[13]
if the disclosing employee demonstrates that an employee
who has the authority to take, direct other individuals to
take, recommend, or approve any personnel action with
respect to the disclosing employee took, failed to take, or
threatened to take or fail to take a personnel action with
respect to the disclosing employee in reprisal for the
disclosure made by the disclosing employee.

13

In turn, 5 U.S.C. § 2302(b)(8), in part, precludes retaliation by rendering it unlawful
for an employee to:
take or fail to take, or threaten to take or fail to take, a personnel
action with respect to any employee or applicant for employment
because of—
(A) any disclosure of information by an employee or applicant
which the employee or applicant reasonably believes evidences—
(i) any violation of any law, rule, or regulation, or
(ii) gross mismanagement, a gross waste of funds, an abuse
of authority, or a substantial and specific danger to public
health or safety,
if such disclosure is not specifically prohibited by law and
if such information is not specifically required by
Executive order to be kept secret in the interest of national
defense or the conduct of foreign affairs . . . .
25

The WPEA effectively nullified Willis and Huffman on the very
question whether a job-duty exception exists. See, e.g., Lerma, 541 P.3d at 157
(“Congress has made clear that it never intended to exclude communications made
through normal channels or as part of ordinary duties, and Congress has amended
the federal statute to abrogate Willis on this point.”) (citing 5 U.S.C. § 2302(f));
Rittenberry v. Citizens Tri-Cnty. Bank, 423 F. Supp. 3d 509, 519 (E.D. Tenn. 2019)
(declining to follow Wolf and Sasse because “Congress amended the
Whistleblower Protection Act in 2012—postdating both the Wolf and Sasse
decisions—to clarify that an employee is not excluded from whistleblower
protection because their ‘disclosure is made during the normal course of duties.’”)
(quoting 5 U.S.C. § 2302(f)(2)); Daniels v. Merit Sys. Prot. Bd., 832 F.3d 1049,
1051–52 (9th Cir. 2016) (“In 2012, Congress amended the WPA. . . . Congress
identified and abrogated specific judicial decisions by the Federal Circuit that had
concluded that disclosures made in certain contexts (for example, during the course
of an employee’s regular duties, or where the information disclosed was already
known) would not be eligible for WPA protection.”);14 Leshinsky v. Telvent GIT,

14

Daniels further explained that:
Congress concluded that such [Federal Circuit] decisions
impermissibly narrowed the scope of the WPA and clarified that it
“intend[ed] to protect ‘any disclosure’ of certain types of
wrongdoing in order to encourage such disclosures” and “that the
(continued . . . )
26

S.A., 942 F. Supp. 2d 432, 449 (S.D.N.Y. 2013) (“In rejecting the Federal Circuit’s
narrow reading of the WPA, Congress made crystal clear its intent that any
whistleblower who reports misconduct via one of the enumerated channels be
protected under federal whistleblower statutes.”).
Indeed, a recent opinion gave this very reason—intervening
Congressional action—for rejecting a “job-duty” exception to a Louisiana
whistleblowing statute. As the Louisiana Supreme Court reasoned,
The job duty exception was created in Willis[]. Citing
Willis, several federal cases perpetuated the exception.
See Sasse [] and Huffman []. In 2012, amendments to 5
U.S.C. § 2302 clarified that these cases were wrongly
decided. Congress emphasized the original intent of the
WPA was to afford broad protection to all
whistleblowing employees. By adding subsection (f)(2)
to 5 U.S.C. § 2302, . . . Congress expressed that a job
duty exception is contrary to the purpose of the WPA.
Menard, 366 So.3d at 1244. And so, Menard “interpret[ed] the similar language in
[the Louisiana statute] consistent with Congress’ interpretation of the WPA,” and
held that “[t]here is no job duty exception.” Id.; see also Lerma, 541 P.3d at 156
(similar reasoning under New Mexico law).

protection for disclosing wrongdoing is extremely broad and will
not be narrowed retroactively by future [Board] or court opinions.”
832 F.3d at 1052 (quoting S. Rep. No. 112–155, at 5, 2012 U.S.C.C.A.N. at 593).
27

2.

The Language of HRS § 378-62 and Hawaii Case Law Supports
Rejecting an Exception
Just as important, like statutes analyzed in other jurisdictions, the

language of HRS § 378-62 itself supports a reading that rejects a compliance-duty
exception to whistleblower protection. The statute, quoted earlier, provides that
“[a]n employer shall not discharge, threaten, or otherwise discriminate against an
employee . . . ,” but nothing in its plain language limits the types of “employees”
who are protected, much less by job duty. 15 Indeed, the statute protects an
“employee” who “reports or is about to report to the employer, or reports or is
about to report to a public body, verbally or in writing, a violation or a suspected
violation of [law].” HRS § 378-62(1) (emphasis added).
The Hawaii Legislature specifically added the clause “or is about to
report to the employer” in 2002 “to expand the activities protected, under the Act,
from reports made to public bodies to also include reports made to employers.”
Lopes v. Kapiolani Med. Ctr. for Women & Children, 410 F. Supp. 2d 939, 952 (D.
Haw. 2005) (citing 2002 Haw. Sess. Laws, Act 56, § 5). Although it did not

15

HRS § 378-61 defines “employee” as
[A] person who performs a service for wages or other
remuneration under a contract for hire, written or oral, express or
implied. Employee includes a person employed by the State or a
political subdivision of the State.

and it defines a “person” as “an individual, sole proprietorship, partnership, corporation,
association, or any other legal entity.”
28

address whether a subset of employees (e.g., those with compliance duties) is
protected or not, the amendment specifically allowed protection for internal reports
by employees to their employers, clearly demonstrating an intent to increase
employee protections (not limit them). And Crosby explains that “the HWPA
should be construed liberally to accomplish the purpose for which it was enacted.”
76 Haw. at 342, 876 P.2d at 1310 (citing Flores v. United Airlines, Inc., 70 Haw. 1,
12 n.8, 757 P.2d 641, 647 n.8 (1988)). As to that purpose, Crosby emphasized that
“Legislative history confirms that the HWPA provides protection to employees
who report suspected violations of law from ‘any form of retaliation by their
employers.’” Id. at 341, 876 P.2d at 1309 (quoting Sen. Stand. Comm. Rep. No.
1127, in 1987 Senate Journal, at 1392).
Finally, the Hawaii Supreme Court—albeit in an unpublished
memorandum decision—refused to decide whether an employee’s “regular job
duties” could exclude that employee from having “participated” in protected
activity for purposes of a related provision of the HWPA, HRS § 378-62(2). 16 In
Tokashiki v. Frietas, 110 Haw. 283, 132 P.3d 851, 2006 WL 995161 (2006)
(mem.), the employer (former Kauai County Police Chief George Freitas) argued
that his former secretary Jacquelyn Tokashiki’s participation in a Police

16

Section 378-62(2) provides that an employer shall not retaliate against an employee
because “[a]n employee is requested by a public body to participate in an investigation, hearing,
or inquiry held by that public body, or a court action.” (Emphasis added.)
29

Commission investigation was not protected activity under the HWPA because her
“performance of . . . routine administrative and ministerial duties” or “regular job
duties . . . cannot be considered ‘participation’ in an investigation.” 2006 WL
995161, at *7. Although the Hawaii Supreme Court “assum[ed], without
deciding” that “Tokashiki’s ‘ministerial’ participation was not protected conduct
under the HWPA,” it nevertheless upheld an HWPA claim based on more
substantive participation, concluding that “Tokashiki’s research, advice, and other
involvement prior to initiation of the formal investigation would appear to
constitute participation in an ‘inquiry.’” Id. Nevertheless, the Hawaii Supreme
Court hinted that an employee’s “regular job duties” would not preclude an HWPA
claim as a matter of law, stating:
Freitas . . . fails to point to any authority to support the
proposition that “routine administrative and ministerial
duties” or “regular job duties” do not constitute protected
activity, and as this court noted in Crosby, “the HWPA is
a remedial statute. As such, the HWPA should be
construed liberally to accomplish the purpose for which it
was enacted.” Crosby, 76 Hawai‘i at 341–42, 876 P.2d
at 1309–10 (citations omitted).
Id.
In short, given (1) the weight of case law in other jurisdictions that
reject a “compliance job” exception to whistleblower claims, (2) the weaknesses in
cases cited by Defendants, (3) the particular language of § 378-62, read in favor of
employees as mandated by Crosby, and (4) the clues given in Tokashiki, the court
30

concludes that the Hawaii Supreme Court would reject a “compliance job” or “job
duty” exception that would preclude a retaliation claim under the HWPA. Plaintiff
may seek relief under the HWPA.
D.

The Third Element: Causal Connection Between Protected Activity and
Termination
Defendants next argue that Plaintiff cannot prove the causation

element of the retaliation test under the HWPA. This element requires “a causal
connection between the alleged retaliation and the ‘whistleblowing.’” Tagupa, 125
F. Supp. 3d at 1119; Chan, 124 F. Supp. at 1055. To meet the causal connection
requirement, an “employer’s challenged action must have been taken ‘because’ the
employee engaged in protected conduct.” Tagupa, 125 F. Supp. 3d at 1119. As
the Hawaii Supreme Court reiterated in Crosby, “an employee has the burden of
showing that his or her protected conduct was a ‘substantial or motivating factor’
in the decision to terminate the employee.” 76 Haw. at 342, 876 P.2d at 1310
(citation omitted). In this regard, “there is no required level of substantiality, . . .
only that the employee’s protected conduct ‘played a role in the employer’s
action.’” Griffin, 654 F. Supp. 2d at 1131 n.20 (quoting Crosby, 76 Haw. at 342,
876 P.2d at 1310).17 And “[c]ircumstantial evidence can be sufficient for
17

“[T]he Hawaii Supreme Court has continued to use the ‘causal link’ standard,” rather
than a “but-for” causation standard later adopted for certain causes of action by the U.S.
Supreme Court in University of Texas Southwestern Medical Center v. Nassar, 570 U.S. 338,
351 (2013). See Fernandez v. FedEx Corp. Servs., Inc., 2021 WL 4305259, at *8 (D. Haw. Sept.
3, 2021) (citing cases)).
31

Plaintiff’s showing on causation.” Sing v. Hawaiian Airlines, Inc., 2021 WL
5310896, at *12 (D. Haw. Nov. 15, 2021) (citing Griffin, 654 F. Supp. 2d at 1133
(“Though an employee may always present direct evidence of motive, proximity in
time is one type of circumstantial evidence that is sufficient on its own to meet the
plaintiff’s burden.”)).
Defendants argue that Plaintiff cannot show causation because he was
not terminated until May 1, 2015—which was some nine months after Plaintiff’s
apparent last act of “protected activity,” an August 19, 2014 report of
environmental problems regarding petroleum tainted soil. See ECF No. 100-1 at
PageID.904 (“Mr. Okamitsu and I then notified managers to ensure that
Defendants stopped hauling the petroleum soaked soil [which is a law violation]
. . . . The procedures and protocols for identifying Petroleum Contaminated Soil
(PCS) were not followed . . . .”); ECF No. 100-19 at PageID.1012 (emails). 18
Defendants rely on a series of cases analyzing whether temporal proximity
between protected activity and adverse action is sufficient to establish a causal
connection. See, e.g., Kama, 107 F.4th at 1061 (upholding determination that a 56day gap between protected activity and termination was not enough by itself to

18

Defendants’ Motion argues that the last act of protected activity was June 9, 2014,
when Plaintiff sent an email explaining that the project was at risk due to environmental
problems. See ECF No. 97-1 at PageID.718. But, as pointed out by Plaintiff, the record supports
Plaintiff’s argument that—at minimum—activity on August 19, 2014 (regarding the petroleum
tainted soil), can be construed as a report constituting protected activity.
32

establish retaliation); You v. Longs Drugs Stores Cal., LLC, 937 F. Supp. 2d 1237,
1258 (D. Haw. 2013) (“Causation may be inferred when an adverse employment
action occurred ‘fairly soon after the employee’s protected expression.’”) (quoting
Villiarimo, 281 F.3d at 1065); Bassett, 2020 WL 7351113, at *13 (“[W]hen the
time lag between the protected activity and adverse employment action is too great,
courts have ‘found the absence of a causal link as a matter of law.’”) (quoting Pratt
v. Haw. Dep’t of Pub. Safety, 308 F. Supp. 3d 1131, 1147 (D. Haw. 2018)). “As
this court has noted, a ‘temporal distance of several months makes a causal link
more difficult to prove; a distance of five years severely undermines it.’” You, 937
F. Supp. 2d at 1258 (quoting Stucky v. State of Haw., Dep’t of Educ., 2007 WL
602105, at *5 (D. Haw. Feb. 15, 2007)).
Nevertheless, “the Ninth Circuit has cautioned courts against
engaging in a ‘mechanical inquiry into the amount of time between the speech and
alleged retaliatory action.’” Id. (quoting Anthoine v. N. Central Counties
Consortium, 605 F.3d 740, 751 (9th Cir. 2010)). “There is no ‘bright line’ rule
providing that any particular period is always too long or always short enough to
support an inference.” Id. (citing Coszalter v. City of Salem, 320 F.3d 968, 977–78
(9th Cir. 2003)). Whether an adverse employment action is intended to be
retaliatory
is a question of fact that must be decided in the light of
the timing and the surrounding circumstances. In some
33

cases, the totality of the facts may form such a clear
picture that a district court would be justified in granting
summary judgment, either for or against a plaintiff, on
the issue of retaliatory motive; but the length of time,
considered without regard to its factual setting, is not
enough by itself to justify a grant of summary judgment.
Coszalter, 320 F.3d at 978. This is because “if [courts] establish a per se rule that
a specified time period is too long to support an inference of causation, welladvised retaliators will simply wait until that period has passed [and then] retaliate
with impunity.” Id. Rather, “the inquiry is fact-specific and depends on both the
degree of proximity and what, if any, other evidence supports an inference of
[causation].” Kama, 107 F.4th at 1059–60 (citing Coszalter, 320 F.3d at 978). As
the Seventh Circuit has reasoned:
[T]he fact that a year passed between [plaintiff’s]
protected expression and her termination does not mean
that she cannot prove that retaliation caused her
discharge; instead, it means that the timing of her
discharge, in itself, does not support an inference of
retaliation, and she must come forward with other
evidence.
Paluck v. Gooding Rubber Co., 221 F.3d 1003, 1010 (7th Cir. 2000) (citations
omitted).
And here, there is “other evidence.” Much happened during the
approximately nine-month period between the August 19, 2014 report regarding a
petroleum contamination violation and Plaintiff’s May 1, 2015 termination. To
summarize—construing the evidence in Plaintiff’s favor as required at this
34

summary judgment stage—during this period, Plaintiff did not work due to a workrelated injury and had several administrative issues, including Kiewit’s misfiling of
Plaintiff’s application for workers’ compensation benefits, when he was also
seeking information regarding Family and Medical Leave benefits. In short—
again, construing evidence in Plaintiff’s favor—he was given “the runaround” by
Kiewit during the nine-month gap when Kiewit knew Plaintiff was having
insurance and treatment problems. The evidence supports an inference that Kiewit
had intended to terminate him much earlier than it did. And as it turns out, he was
terminated the same day that the Hawaii Department of Labor and Industrial
Relations found he had suffered a work injury.
In September 2014, Plaintiff injured his back moving furniture while
relocating to a different Kapolei-based Kiewit position (allegedly, a position with
lesser pay and benefits). A Kiewit manager discouraged Plaintiff from reporting
the incident as a work injury because—Plaintiff was told—reporting it “could
create some big problems for you.” ECF No. 100-1 at PageID.912. After he
reported the incident and inquired about a workers’ compensation claim, Sharon
Thom (a senior vice president from Kiewit) wrote to Plaintiff on October 17, 2014,
telling him that he had violated Kiewit policy by not timely reporting a work injury
and threatening him with “disciplinary action up to an including termination.”

35

ECF No. 100-25 at PageID.1042. Thom wrote Plaintiff again on October 21,
2014, that:
[w]e believe that you were aware, or should have been
aware, at the point you began experiencing discomfort
and self treating that the Company should have been
made aware of the issue. As you know, it is imperative
that any workplace injury or symptoms be reported to the
Company immediately.
ECF No. 100-27 at PageID.1046.19
When Plaintiff told Kiewit on October 23, 2014, that he needed help
getting the workers’ compensation insurance claim number to get needed medical
treatment, Thom simply responded that:
[W]orkers’ compensation claims are handled by a third
party provider. That provider reviews the claim and
makes a determination on whether the claim is
compensable, and if so, to what extent. We must let the
process run its course.
ECF No. 100-30 at PageID.1053. Meanwhile, Kiewit had apparently filed
Plaintiff’s workers’ compensation claim with the wrong third-party provider. ECF
No. 100-31 at PageID.1055; ECF No. 100-34; ECF No. 100-1 at PageID.916. On
November 5, 2014, Plaintiff notified Jane Sewell of Kiewit of a processing error,

19

Thom, however, had been told on October 15, 2014, by a Kiewit manager that Plaintiff
was filing a workers’ compensation claim after receiving MRI results, and that “he’s been
keeping both Damon and Alika updated on his status.” ECF No. 98-22 at PageID.790. And, in
fact, Plaintiff had been emailing Kiewit personnel (including “Damon” and “Alika”) since as
least October 2, 2014, about his back pain and the ongoing results of the medical tests. See ECF
Nos. 98-17 to 98-21.
36

and complained about needed medical treatment and unpaid bills because of the
error, ECF No. 100-31, but she did not respond. ECF No. 100-1 at PageID.917.
The record contains no response to Plaintiff until a February 5, 2015, email from
Sewell. See ECF No. 100-37 at PageID.1071. The cryptic response from Sewell
was simply:
Thank you for the email. To verify, the work comp claim
is being handled through the OCIP process. I look
forward to hearing from you with information from your
doctor.
Id. But, in addition to Plaintiff’s prior emails, Kiewit had already been officially
told on January 27, 2015, by an insurance administrator, Sedgwick CMS, that
Kiewit had filed Plaintiff’s claim with the wrong insurance carrier and thus his
claim had been denied. See ECF No. 100-34 at PageID.1065; ECF No. 100-41 at
PageID.1079. Plaintiff immediately responded to Sewell on February 5, 2015,
with an email asking:
What does that mean? “[T]he work comp is being
handled through the OCIP process?” I filed the claim
several months ago, and verified with you in November
that Sedgwick was the carrier. I’ve already gone to the
independent medical evaluation. The department of
labor has already set a hearing date. Why are there all of
a sudden these changes? Please explain.
ECF No. 100-38 at PageID.1073.
Meanwhile, on January 26, 2015, Sewell had written to Plaintiff,
listing the “essential functions of an engineering position,” and asking him for:
37

clarification about (a) when you will be released to return
to work; (b) what restrictions, if any, are placed upon
your ability to perform the essential functions of an
engineering position; and (c) if there are any restrictions,
we need your physician to clarify which of the
aforementioned restrictions are permanent and which are
temporary.
ECF No. 100-33 at PageID.1062. She also asked for “any and all ideas which you
may have about how you might be able to return to work in a safe and effective
manner.” Id. Plaintiff responded on February 4, 2015, telling Sewell:
I have spoken to the doctor and he will be providing
responses to your questions. Also, in regards to my
Workmans comp claim, I just received a notice from
Sedgwick stating that after all this time they have now
discovered that they are not the insurance carrier . . . ?
Something about OCIP being enacted from 8/19/14 under
HART and being covered under Old Republic Insurance
Corporation Policy A1LWF5261400??? Can you please
provide me some insight on this? I thought this was
clarified back in November.
ECF 100-36 at PageID.1069.
On March 25, 2015, Plaintiff wrote another email to Sewell,
explaining some of his insurance and medical issues, and that he has been
receiving temporary disability benefits, and providing some medical
documentation of his condition. ECF No. 100-42 at PageID.1082.
During all this time, Plaintiff had not been working, and on April 9,
2015, Sewell offered Plaintiff a separation, which included a severance payment of
$20,000, in exchange for a waiver and release. ECF No. 100-43 at PageID.1084.
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The letter included a listing of all of Plaintiff’s “14 out-of-work extensions” due to
“inability to return to work since September 26, 2014.” Id. Plaintiff did not accept
the proposed severance agreement.
On April 30, 2015, the DLIR issued a determination in an ongoing
workers’ compensation proceeding that found Plaintiff had suffered a work injury
on September 19, 2014. ECF No. 100-44 at PageID.1090. The DLIR found that
his workers’ compensation claim was compensable, and that he was awarded
disability benefits from October 2014 through March 3, 2015. Id. at PageID.1092.
That same day, Kiewit terminated Plaintiff, effective on May 1, 2015. ECF No.
98-29 at PageID.812–813.
Construing this evidence in the light most favorable to Plaintiff, the
record supports a conclusion that Kiewit had already decided—well before April
30, 2015—that it was going to terminate Plaintiff. That is, there is enough
evidence to support an inference of causation for purposes of the prima facie case.
See Kama, 107 F.4th at 1059 (reiterating that “[u]nder the McDonnell Douglas
framework, the requisite degree of proof necessary to establish a prima facie case
on summary judgment is minimal and does not even need to rise to the level of a
preponderance of the evidence”) (ellipses and emphasis omitted) (quoting Opara,
57 F.4th at 722). In sum, Plaintiff has made a prima facie showing of causation
when considering not only the proximity of termination (or lack thereof) to
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protected activity, but also the “totality of the facts” and the “surrounding
circumstances” of the termination and “its factual setting.” Coszalter, 320 F.3d at
978.
E.

Pretext
Plaintiff having established a prima facie case of retaliation, at the

next step of the McDonnell Douglas framework, Defendants have proffered a
legitimate, non-discriminatory reason for termination—Plaintiff’s multiple
absences from work and corresponding inability to perform his job as an engineer.
See ECF No. 98-29 at PageID.812; ECF No. 97-1 at PageID.728–730; see also
ECF No. 105-1 at PageID.1141–1142. Defendant’s termination letter now listed
15 “out-of-work extensions” and told him:
Our current understanding is that your leave is indefinite.
We continue to have your best interest in mind, but given
your open ended request for time off, and your last
known restrictions (apart from being unable to return to
work) exclude you from virtually every position with the
Company, the Company extended you a separation
offer. . . . As of the date of this letter, I still have not
received a response from you; therefore, your
employment with Kiewit will be terminated as of May 1,
2015.
ECF No. 98-29 at PageID.812–813.
The question under McDonnell Douglas is whether Plaintiff can meet
his corresponding burden to show that the reasons given for the termination are
pretextual. A plaintiff can establish pretext “(1) directly, by showing that unlawful
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discrimination more likely [than not] motivated the employer; [or] (2) indirectly,
by showing that the employer’s proffered explanation is unworthy of credence
because it is internally inconsistent or otherwise not believable; or via a
combination of the[se] two kinds of evidence.” Kama, 107 F.4th at 1059 (quoting
Chuang v. Univ. of Cal. Davis, Bd. of Trs., 225 F.3d 1115, 1127 (9th Cir. 2000)).
And, “[a]t the pretext stage, the plaintiff’s burden remains low, and “very little[ ]
evidence is necessary to raise a genuine issue of fact regarding an employer’s
motive.” Id. (quoting Opara, 57 F.4th at 723–24). “Nevertheless, a plaintiff must
present some evidence that goes to the defendant’s motivation—either by directly
showing that it was discriminatory or by contesting the defendant’s claimed
motivation.” Id.
Plaintiff points to evidence that Kiewit supervisors had specifically
told him not to report environmental incidents. See, e.g., ECF No. 100-1 at
PageID.886-87 (Kiewit supervisor Brent Scheele asking Plaintiff, “How much
money do we have to lose to make it acceptable to you to be out of compliance just
for a little while?”); id. at PageID.894 (Kiewit instructing Ho “to keep my
comments regarding illegalities to myself”); ECF No. 100-13 at PageID.985
(Kiewit out-of-state district manager agreeing with Ho about environmental
violations after an investigation); ECF No. 100-1 at PageID.898 (testimony that the
district manager was told by Kiewit to delete the report and submit a redacted
41

version). This evidence, if believed—even assuming if does not rise to a level of
direct evidence of discrimination—supports a showing of pretext by showing
Defendants’ motivation. But Plaintiff mostly relies on the strength of the evidence
supporting a showing of causation at the prima facie stage—the same evidence that
supports an inference that Kiewit had already decided to terminate him (well
before his actual termination date), and thus were using his continuing absences as
a pretextual reason to retaliate. See Griffin, 654 F. Supp. 2d at 1134 (“In other
words, a reasonable inference can be made that Defendant . . . may have already
planned on terminating Plaintiffs, but waited until the government requested their
removal in order to disguise its retaliatory motivation.”).
This is a proper method of showing pretext, given the evidence here.
See, e.g., Miller v. Fairchild Indus., Inc., 797 F.2d 727, 732 (9th Cir. 1986) (“To
show pretext, the plaintiff is not necessarily required to introduce evidence beyond
that already offered to establish her prima facie case, although she may of course
provide additional proof of the defendants’ unlawful motivation.”) (citing Tex.
Dep’t of Comm. Affairs v. Burdine, 450 U.S. 248, 255 n.10 (1981)); Yartzoff v.
Thomas, 809 F.2d 1371, 1377 (9th Cir. 1987) (“Evidence already introduced to
establish the prima facie case may be considered [in analyzing pretext].”). As
courts have reiterated, “[t]emporal proximity can support both a prima facie case of
retaliation and a showing of pretext.” Kama, 107 F.4th. at 1059 (emphasis added)
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(citing Miller, 797 F.2d at 731–32); Chan, 124 F. Supp. 2d at 1057 (observing that
“Judge J. Michael Seabright of this court has recognized that the timing of adverse
employment actions can sometimes suffice as circumstantial evidence for both a
prima facie case and evidence of pretext.”) (citing Patrick v. 3D Holdings, LLC,
2014 WL 1094917, at *11 (D. Haw. Mar. 18, 2014)).
And here, given the combination of evidence of discriminatory
animus and the evidence of causation, the court concludes that Plaintiff has met his
“low” burden to demonstrate pretext. See Kama, 107 F.4th at 1059. At this point,
“the McDonnell Douglas framework ‘disappears,’ and ‘the sole remaining issue is
discrimination vel non.’” Villiarimo, 281 F.3d at 1062 (brackets omitted) (quoting
Reeves, 530 U.S. at 143). “This burden [to show pretext] thus merges with the
plaintiff’s ultimate burden of persuading the court that he is the victim of
retaliation.” Yartzoff, 809 F.2d at 1377 (citing Burdine, 450 U.S. at 256).
Applying the framework to Plaintiff’s HWPA claim, the court DENIES
Defendants’ Motion for Summary Judgment.
///
///
///
///
///
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V. CONCLUSION
For the foregoing reasons, Defendants’ Motion for Summary
Judgment is DENIED.
IT IS SO ORDERED.
DATED: Honolulu, Hawaii, March 11, 2025.

/s/ J. Michael Seabright
J. Michael Seabright
Chief United States District Judge

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