NOT FOR PUBLICATION IN WEST'S HAWAIʻI REPORTS AND PACIFIC REPORTER

NO. CAAP-18-0000540 

IN THE INTERMEDIATE COURT OF APPEALS 

OF THE STATE OF HAWAI‘I 

CELSO D. CARABBACAN, Plaintiff-Appellant, 

v. 

OUTRIGGER CANOE CLUB, a Hawai‘i Corporation, 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. 16-1-1179) 

SUMMARY DISPOSITION ORDER 

(By: Wadsworth, Presiding Judge, Nakasone and McCullen, JJ.) 

 This appeal concerns whether summary judgment was 

properly granted in an employment discrimination case based on 

age and/or ancestry under Hawaii Revised Statutes (HRS) § 378-2.1

1 HRS § 378-2 (2015) makes it an "unlawful discriminatory practice" 

for 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" based 

on, inter alia, age or ancestry. HRS § 378-2(a)(1)(A). 

Electronically Filed

Intermediate Court of Appeals

CAAP-18-0000540

21-MAY-2024

08:01 AM

Dkt. 68 SO
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 Plaintiff-Appellant Celso D. Carabbacan (Carabbacan)

appeals from the May 18, 2018 "Order Granting [DefendantAppellee] Outrigger Canoe Club's [(Outrigger)] Motion for 

Summary Judgment Filed On February 23, 2018" (Order Granting 

MSJ); and June 6, 2018 Final Judgment entered by the Circuit 

Court of the First Circuit (Circuit Court).2 

 On appeal, Carabbacan contends the Circuit Court erred 

in granting Outrigger's Motion for Summary Judgment (MSJ) by 

concluding that Carabbacan "failed to establish a prima facie 

case of employment discrimination[.]"3

 Upon careful review of the record and the briefs 

submitted by the parties and having given due consideration to 

the arguments advanced and the issues raised, we resolve 

Carabbacan's contention as follows, and affirm. 

 Following an April 18, 2018 hearing on Outrigger's 

MSJ, the Circuit Court granted the motion. The May 18, 2018 

Order Granting MSJ stated: 

The Court finds that [Carabbacan] has failed to establish a 

prima facie case of employment discrimination based on 

personal knowledge, direct or circumstantial evidence, 

reasonable inference, or other admissible evidence. With 

respect to [Carabbacan's] claim his hours were reduced

[(discriminatory reduction in hours claim)], [Carabbacan]

has failed to provide admissible evidence to show any 

similarly situated younger or non-Filipino employee(s) did 

not also have their hours reduced. With respect to 

[Carabbacan's] claim his termination was discriminatory

[(discriminatory termination claim)], [Carabbacan] has 

failed to provide admissible evidence that the position 

[Carabbacan] held continued to exist after his termination.

2 The Honorable Jeffrey P. Crabtree presided.

3 In Carabbacan's second point of error, after acknowledging that 

the Circuit Court "did not reach" Carabbacan's claim that Outrigger's 

termination of Carabbacan for insubordination was pretextual, Carabbacan 

nevertheless addresses the "pretext" issue in anticipation of Outrigger's 

argument to affirm summary judgment on this basis. We need not address this 

point of error. 
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 Following the entry of Final Judgment in favor of 

Outrigger, Carabbacan timely appealed. 

 "We review a circuit court's award of summary judgment 

de novo under the same standard applied by the circuit court." 

Adams v. CDM Media USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81 

(2015) (quoting Shoppe v. Gucci Am., Inc., 94 Hawai‘i 368, 376, 

14 P.3d 1049, 1057 (2000)) (internal quotation marks omitted). 

When analyzing a claim of discrimination that relies on 

circumstantial evidence, Hawai‘i courts engage in a three-step 

analysis, where (1) "the plaintiff must establish a prima facie 

case of discrimination" (Step 1); (2) once plaintiff meets this 

burden, "the burden of production shifts to the defendant to 

articulate a legitimate, nondiscriminatory reason for the 

adverse employment action"; and (3) "if the employer rebuts the 

prima facie case, the burden reverts to the plaintiff to 

demonstrate that the defendant's proffered reasons were 

'pretextual.'" Id. at 13-14, 346 P.3d at 82-83 (quoting Shoppe, 

94 Hawai‘i at 378-79, 14 P.3d at 1059-60). 

 Here, Carabbacan acknowledges that because the Circuit 

Court ruled that Carabbacan failed to present a prima facie case 

under Step 1, "the burden shifting analysis of McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973),/Shoppe v. Gucci Am., Inc., 

94 Hawai‘i 368, 376, 14 P.3d 1049, 1057 (2000)/Adams v. CDM Media 

USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81 (2015), did not 

come into play." We likewise focus our review on whether 

Carabbacan established a prima facie case of discrimination 

under Step 1. 

 To establish a prima facie case of discrimination for 

Step 1, a plaintiff must show, by a preponderance of evidence, 

the following four elements: "(1) that plaintiff is a member of 

a protected class; (2) that plaintiff is qualified for the 
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position for which plaintiff has applied; (3) that plaintiff has 

suffered some adverse employment action; and (4) that the 

position still exists." Adams, 135 Hawai‘i at 13, 346 P.3d at 82 

(cleaned up). As to the fourth element (Element 4) in cases 

where a plaintiff alleges an adverse employment action but has 

"continued to be employed by the employer, the plaintiff may 

satisfy the fourth element of the prima facie case of 

discrimination by demonstrating that a similarly situated 

employee outside of [the plaintiff's] protected class was 

treated more favorably." Kaloi v. Cnty. of Hawai‘i, 

No. CAAP-15-0000308, 2016 WL 3199477, at *3 (Haw. App. June 8, 

2016) (mem. op.) (citations omitted). 

 Here, the Circuit Court's "prima facie case of 

discrimination" analysis turned on Element 4 for both 

Carabbacan's discriminatory reduction in hours claim and his 

discriminatory termination claim. See Adams, 135 Hawai‘i at 13, 

346 P.3d at 82. 

1. Whether Carabbacan presented evidence for 

Element 4 of his discriminatory reduction in 

hours claim that a similarly situated employee 

outside of Carabbacan's protected class was 

treated more favorably. 

 The Circuit Court concluded that Carabbacan "failed to 

provide admissible evidence to show any similarly situated 

younger or non-Filipino employee(s) did not also have their 

hours reduced." 

 In his Opening Brief, Carabbacan concedes that the 

Circuit Court's conclusion above "is true[,]"and that he did 

"not produce[] any evidence that he was the only busser whose 

hours were reduced from 32 per week to 17.5 per week." Instead, 

he argues on appeal that "that is not what must be proven" 

because "[a] plaintiff must show that another employee, outside 
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his class, was treated more favorably." This argument lacks 

merit. 

 Carabbacan's Complaint alleged that he "was subjected 

to unequal terms and conditions of employment including having 

his hours reduced"; that "[c]o-workers who were younger and not 

of the same ancestry and national origin as [Carabbacan] 

received more favorable treatment by not having hours reduced"; 

and that Carabbacan "suffered discrimination in terms, 

conditions, and privileges of his employment due to his national 

origin and age" under HRS § 378-2. See Complaint ¶ 11.b., 

11.c., and 13 (emphases added). Carabbacan claimed that when he 

asked Outrigger's General Manager why his hours were reduced, he 

was told that everyone's hours were reduced. 

 Outrigger moved for summary judgment on Carabbacan's 

claim in his Complaint paragraph 11.c., that he was treated 

differently than younger and/or non-Filipino employees because 

his hours were reduced. Outrigger argued "Carabbacan has no 

evidence his hours were reduced because of his age or 

ancestry[.]" 

 HRS § 378-2 prohibits discrimination in the terms and 

conditions of employment. Under Kaloi and HRS § 378-2, Element 

4 may be proved "by demonstrating that a similarly situated 

employee outside of [a plaintiff's] protected class was treated 

more favorably" with respect to a term and condition of 

employment. Kaloi, 2016 WL 3199477, at *3 (citations omitted). 

Carabbacan's Complaint alleged, under Kaloi and HRS § 378-2, 

that "[c]o-workers who were younger and not of the same 

ancestry" as Carabbacan "received more favorable treatment by 

not having hours reduced . . . ." See Complaint ¶ 11.c. 

Carabbacan's Complaint alleged that the "unequal term[] and 

condition[] of employment" was "having his hours reduced 
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. . . ." See Complaint ¶ 11.b. Thus, the language of HRS 

§ 378-2 and Carabbacan's own Complaint do not support 

Carabbacan's argument on appeal that he need only show that an 

employee outside his protected class "was treated more 

favorably[,]" untethered from any term and condition of 

employment such as the claimed reduction in hours. See Kaloi, 

2016 WL 3199477, at *3. 

 On this record, the Circuit Court did not err in 

granting summary judgment as to Carabbacan's discriminatory 

reduction in hours claim for failure to establish a prima facie 

case. See Adams, 135 Hawai‘i at 12, 346 P.3d at 81. 

2. Whether Carabbacan presented evidence for 

Element 4 of his discriminatory termination 

claim that Carabbacan's position still existed 

when he was terminated. 

 The Circuit Court concluded that Carabbacan "failed to 

provide admissible evidence that the position [Carabbacan] held 

continued to exist after his termination." 

 The record reflects that Carabbacan was terminated on 

January 16, 2015. In his declaration in opposition to the MSJ, 

Carabbacan stated: 

10. On Saturday, January 3, 2015, I received a call that 

business was slow and I should not come to work, even 

though I was scheduled to work.

11. I went in to work anyway, and [the manager] was mad 

that I came to work. I saw that a new young Mexican boy 

was working my position at a big wedding party.

(Emphases added.)

 To establish a prima facie case, Carabbacan must show 

by a preponderance of evidence that his position still existed 

when he was discharged. See Adams, 135 Hawai‘i at 13, 346 P.3d 

at 82. In his Opening Brief, Carabbacan does not point to any 

evidence in the record to support his argument that Carabbacan's 

position still existed as of the January 16, 2015 termination 
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date. See Hawai‘i Rules of Appellate Procedure (HRAP) Rule 

28(b)(7) (requiring argument to contain citations to parts of 

the record relied on). Carabbacan's statement that he saw a 

"new" person working in "[his] position" on January 3, 2015, is 

conclusory and does not show that Carabbacan's "position still 

exist[ed]" when Carabbacan was discharged thirteen days later on 

January 16, 2015. See Adams, 135 Hawai‘i at 13, 346 P.3d at 82. 

Carabbacan does not include the date of hire of the unnamed "new 

young Mexican" co-worker anywhere in his Opening Brief, nor does 

he point to evidence of such date of hire in the record. 

Instead, Carabbacan relies on improper inferences rather than 

evidence,4 which are insufficient to meet the preponderance of 

the evidence standard for a prima facie case of discrimination. 

See Adams, 135 Hawai‘i at 13, 346 P.3d at 82. 

 On this record, the Circuit Court did not err in 

granting summary judgment as to Carabbacan's discriminatory 

4 Carabbacan points to an "inference" rather than evidence, to 

support his argument that Carabbacan's position still existed as of the 

termination date, as follows:

On January 3, 2015, [Carabbacan] was told that there was no 

work for him, but when he came in anyway, he found a young, 

recently hired Mexican working his shift. There was no 

evidence that [Carabbacan] was terminated a [sic] part of a 

reduction in force. The alleged reason for the termination 

given by OUTRIGGER was "insubordination." Indeed, rather 

than a reduction in force, the hiring of the young Mexican 

is evidence that the force of bussers was either being 

increased, or the Mexican was hired in advance specifically 

as a replacement for [Carabbacan]. The position of busser 

is not a unique position for a canoe club operating a 

restaurant/wedding party facility. There are many people 

holding that position. The position of busser is an 

essential position at a canoe club operating a restaurant 

wedding party facility. The simple fact that OUTRIGGER had 

recently hired a new busser is ample evidence to support an 

inference that the position still existed as of the date of 

termination. 

Opening Brief at 14-15 (emphasis and bolding added).
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termination claim for failure to establish a prima facie case. 

See id. at 12, 346 P.3d at 81. 

 For these reasons, the May 18, 2018 "Order Granting 

Defendant Outrigger Canoe Club's Motion for Summary Judgment 

Filed On February 23, 2018" and June 6, 2018 Final Judgment 

entered by the Circuit Court of the First Circuit are affirmed. 

 DATED: Honolulu, Hawai‘i, May 21, 2024. 

On the briefs:

Charles H. Brower, 

for Plaintiff-Appellant. 

John S. Mackey, 

for Defendant-Appellee. 

/s/ Clyde J. Wadsworth 

Presiding Judge 

/s/ Karen T. Nakasone 

Associate Judge 

/s/ Sonja M.P. McCullen 

Associate Judge