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IN THE SUPREME COURT OF THE STATE OF HAWAIʻI 

---o0o--- 

CHRISTIE ADAMS, Petitioner/Plaintiff-Appellant, 

vs. 

CDM MEDIA USA, INC., Respondent/Defendant-Appellee. 

SCWC-12-0000741 

CERTIORARI TO THE INTERMEDIATE COURT OF APPEALS 

(CAAP-12-0000741; CIV. NO. 11-1-0931) 

February 24, 2015 

McKENNA AND POLLACK, JJ., AND CIRCUIT JUDGE ALM, IN PLACE OF 

ACOBA, J., RECUSED, WITH RECKTENWALD, C.J., CONCURRING AND 

DISSENTING, WITH WHOM NAKAYAMA, J., JOINS 

OPINION OF THE COURT BY POLLACK, J. 

I. Background 

Christie Adams (Adams) filed a complaint in the 

Circuit Court of the First Circuit (circuit court) alleging that 

she had been subjected to employment discrimination in violation 

of Hawaiʻi Revised Statutes (HRS) § 378-2. The discriminatory 

Electronically Filed

Supreme Court

SCWC-12-0000741

24-FEB-2015

09:45 AM
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act claimed by Adams was CDM Media, USA, Inc.’s (CDM) decision 

not to hire Adams due to her age. CDM’s motion for summary 

judgment was granted by the circuit court on the basis that 

Adams had failed to demonstrate that CDM’s reasons for not 

hiring her were pretextual. In a summary disposition order, the 

Intermediate Court of Appeals (ICA) affirmed the holding of the 

circuit court, and Adams sought review of the ICA judgment in 

this court. 

For the reasons set forth below, we hold that summary 

judgment was improperly granted as CDM did not satisfy its 

burden to articulate a legitimate, nondiscriminatory reason for 

declining to hire Adams, and therefore pretext was not required 

to be considered by the circuit court. Accordingly, we vacate 

the judgments of the ICA and the circuit court and remand the 

case to the circuit court for further proceedings. 

A. Employment action and HCRC decision 

On January 12, 2009, CDM published an online 

solicitation seeking applicants for its International Media 

Sales Executives positions. CDM described the International 

Media Sales Executive position as “an inside [telephone] sales 

person job that . . . requires 200 to 250 cold calls a day.” 

The relevant portions of the advertisement stated as follows: 

We’re looking for motivated, hungry people to join our ever 

expanding sales team in the role of advertising sales. We 

offer recognized training to build upon your formal 

education/experience and teach you the business of 
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advertising and summit sales in order for you to progress 

and build your career quickly. 

We offer great base salary, health/dental insurance and 

very attractive bonus scheme to ensure we have a high level 

of achievers applying (Realistic OTE 1st year- $70K). 

The heart of CDM Media is based on a commitment to 

innovation, so if you are looking for a business 

environment that’s conducive to creativity and challenge, 

please inquire about this unique advertising sales 

opportunity. 

Here are a few key benefits to working at CDM Media: 

 Competitive starting salary + aggressive commission and 

bonus package (Realistic first year OTE 70k) 

 First-class Sales Training Program from the best in the 

industry

 Lucrative sales prizes for top-performers 

 Generous paid time off programs  Comprehensive training 

sessions 

 Health/Dental benefits 

 Career development opportunities 

 Referral bonuses for bringing in new sales talent 

 Being a contributor to REAL growth 

Requirements

 Sales experience preferred 

 Detail-oriented and organized 

 Strong communication skills 

 Willingness to take on new challenges 

 MOST IMPORTANTLY, a true determination to succeed! 

(Emphasis in original). On February 11, 2009, a local newspaper 

posted a story stating that CDM was looking to hire “energetic 

and driven professionals” and was planning to put them “through 

an eight-week comprehensive training course.” Adams saw this 

article and online advertisements related to the position.1

 

CDM’s hiring procedure at the time was as follows: 

 1

 Adams also saw online advertisements that stated CDM was seeking 

“youthful” employees. Adams submitted these advertisements in response to 

CDM’s Motion for Summary Judgment. CDM denied placing such advertisements. 

The circuit court found the advertisements to be inadmissible hearsay. 
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a. Brandon Bera, CDM HR Director, calls all applicants 

to speak for a 5 minute phone screening with very basic 

questions regarding what interested them about CDM Media. 

It is then determined who will be brought in for a first 

round face-to-face interview. 

b. Brandon Bera, CDM HR Director, hosts the first round 

of interviews and reviews all candidates that came in for 

the interview and narrows down the list of potential 

candidates to meet with the CEO, Glenn Willis. This is 

meant to be an interview focusing on experience, 

personality, characteristics, professional appearance of 

the candidate, and to determine if they seem like team 

players. Usually, there are hundreds of applicants that 

are narrowed down to around 4-5 dozen that will be met in 

person. 

c. Those select few that stick out from the first round 

interview are then moved on to the second round where they 

will meet with CDM’s CEO, Glenn Willis, and often times 

CDM’s VP of Sales, Nick Backhouse in the same day. This is 

meant to focus on more in-depth personality characteristics 

to and detailed questions about experience to make sure 

what was said in the first interview aligns to the second 

interview. 

d. Those that impress all parties involved in the hiring 

process (CDM’s CEO and President Glenn Willis, HR Director 

Brandon Bera and sometimes Sales Vice President/Director 

Nick Backhouse if reassurance is needed) are then made an 

offer within a couple weeks of the final interview. 

On February 13, 2009, Adams sent an email to CDM Human Resources 

Director, Brandon Bera (Bera), applying for the position. The 

email included a list of awards Adams won while working for 

Verizon in Hawaiʻi, which included awards for “inside/telephone” 

sales and “outside” sales and at least one award exclusively for 

telephone sales: 

President’s Award for Professional Salesmanship, Premise 

Sales Representative, for the Calendar Year 2000 This award 

is presented to the top outside sales representative (of 

about 23 outside sales reps) in Verizon Information 

Services’ Honolulu Division based 80% on customer growth 

and 20% on customer satisfaction. 

Hall of Fame Award for the Calendar Year 2000 One of the 

most coveted and prestigious of all Verizon sales awards, 

this award is presented to outside and telephone sales 
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representatives who achieve a net increase of 25% for two 

consecutive years. . . . 

1999-2000 Silver Prize Tip [sic] Winner to Montreal and 

Quebec City, Canada During the one-year period of the 

contest, winning sales representatives must achieve a 

minimum of 115% to sales net goal performance and a minimum 

of 100% to performance selling items on superpages.com, 

must participate in at least one Quality Improvement Team 

(QIT), and must have an error percentage less than 1/2 of 

one percent of all advertising revenue handled. Of about 23 

telephone sales reps and 23 outside sales reps, I was the 

only sales rep in the Hawaii Division to win this prize 

trip, which was based upon meeting all four goals in the 

Hawaii marketplace. 

Top Producer, Premise Sales Reps, Kauai 2000 Telephone 

Directory Canvass For 195.51% performance to goal (of about 

23 outside sales reps). 

ZEAM Award for the Calendar Year 1999 This award is 

presented to sales reps who achieved or exceeded their 

annual sales goal with zero errors or mistakes over a oneyear period of time. . . . 

Top Producer, Telephone Sales Reps, Big Island 1999 

Telephone Directory Canvass For 217% performance to goal 

(from about 23 telephone sales reps). 

Eagle Award, 1999 This award is given to sales 

representatives who perform at 100% or higher consistently 

for 26 weeks in a row. 

(Underlining added). On February 18, 2009, Bera had a fiveminute phone call with Adams. After the call, Adams sent Bera 

another email, this one including Adams’ professional resume and 

a list of her computer, clerical, and office skills, which 

stated Adams had “used computers on a daily basis for the past 

25 years.” 

The resume attached to this second email stated that 

Adams had “[m]ore than 20 years of full-time, hands-on 

experience in nearly all aspects of sales and marketing, 

including inside and outside sales.” Adams had received a B.A. 
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from Stanford University and “complet[ed] additional college 

courses taken in Switzerland and at the University of Hawaiʻi at 

Manoa.” 

Adams’ resume indicated that from 1984 to 1986, she 

was the Executive Director of The Hawaiʻi Society/The American 

Institute of Architects, where she managed the affairs of the 

550-member non-profit. From 1986 to 1998, Adams was the 

President of Christie Adams & Associates Marketing and Public 

Relations, where she worked directly with many clients, 

including owners of businesses, executives of nonprofits and 

governmental managers, to develop public relations programs and 

organize special events. From September 1998 to 2003, Adams 

worked for Verizon selling advertising in Verizon’s print and 

online Yellow Pages, contacting customers in person and by 

phone. While working at Verizon, Adams won the sales 

achievement awards described in her email to Bera. 

From May 2004 to September 2004, Adams was a Loan 

Officer with Hawaii HomeLoans where she met with prospective 

home loan clients “over the phone and/or in person.” Lastly, 

from October 1, 2004, to May 15, 2007, Adams’ resume lists her 

as a “Caregiver for Terminally-ill parent” and, from August 2007 

to August 2008, as a “Home Organizer for the Lillian B. Adams 

Trust.” 
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On or about February 19, 2009, Adams was interviewed 

in person by Bera. On the date of the interview Adams was 59 

years old. As described by Adams, “[a]t the end of the 

interview I asked Bera what the next step would be and he seemed 

hesitant to pass me along for the next interview. He said Glenn 

Willis would decide.” Glenn Willis (Willis) was the President 

and Chief Executive Officer (CEO) of CDM at the time. The only 

notes from the interview were notations made on an attachment to 

Adams’ first email, one of which was a box drawn around 

“Verizon/Yellow Pages” with the words “1/2 inside” and “1/2 

outside” written beside it.2

Adams was not asked to return for the second interview 

and received no other contact from CDM until March 1, 2009. On 

that date, Adams received a rejection letter from CDM. On March 

30, 2009, CDM hired four persons for the position sought by 

Adams, who ranged in age from 24 to 38. On May 15, 2009, CDM 

hired three more persons for the position, ranging in age from 

23 to 40. By October 19, 2009, only the two youngest of the new 

hires were still employed by CDM.3

 2

 CDM admitted that the notes on Adams’ February 13, 2009 email 

were “handwritten notes relating to the interview.” 

3

 CDM included in its Respondent’s Answer to Charge of 

Discrimination Filed on August 27, 2009 to the HCRC a list of all employees 

hired around the time Adams was interviewed and a list of “current 

employees.” 
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On August 27, 2009, Adams filed a Charge of 

Discrimination against CDM with the Hawaiʻi Civil Rights 

Commission (HCRC). In her submission to HCRC, Adams stated, “I 

believe that if not for my age I would have been hired for the 

International Media Sales Executive position.” CDM filed 

“Respondent’s Answer to Charge of Discrimination Filed on August 

27, 2009” (Answer). The Answer stated, inter alia, that sales 

executives in the position for which Adams applied made “200 to 

250 cold calls a day” and that one criteria CDM used to evaluate 

candidates was whether or not they had “[e]xperience in dealing 

with VP and C-level executives in Fortune 500 organizations.” 

The Answer also included a list of all employees hired around 

the time Adams was interviewed and a list of “current 

employees.” On February 9, 2011, the HCRC issued a Notice of 

Dismissal and Right to Sue Letter. 

B. Circuit Court 

On May 10, 2011, Adams filed a complaint in the 

circuit court. The complaint alleged that CDM had violated HRS 

§ 378-2 by discriminating against Adams due to her age. Adams 

alleged CDM posted advertisements seeking applicants who were 

“youthful” and “recent college graduates.” Adams claimed she 

was entitled to loss of income because she was not hired as a 

result of discrimination and “was not able to become employed 

for a long period of time despite her efforts to find 
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employment.” Adams requested an order that CDM hire her, and 

she also sought general damages, special damages (such as lost 

wages, punitive damages, and litigation costs), and attorney’s 

fees, as well as other appropriate relief. 

On June 20, 2011, CDM filed an answer to the 

complaint. CDM denied that Adams was qualified for the 

position, denied placing any ads for “youthful” people or 

“recent college graduates” to join its sales team, and denied 

that Adams was not hired because CDM “was advertising for 

‘youthful’ applicants and ‘recent college graduates.’” 

On February 21, 2012, CDM filed a motion for summary 

judgment (MSJ). CDM claimed it was “entitled to summary 

judgment on [Adams’] age discrimination claim because the record 

lacked substantial evidence that either: (1) Adams was qualified 

for the sales position, or (2) CDM Media’s reasons for not 

hiring Adams for the sales position were a pretext for age 

discrimination.” The only relevant document attached to the MSJ 

is a declaration from Willis (Willis’ Declaration or 

Declaration). In his Declaration, Willis states that it was his 

decision not to hire Adams in February 2009. Willis declares it 

was his “belief” that Adams was not qualified for the position. 

Willis also states that he “did not consider any criteria stated 

in any advertising or posting in making my decision not to hire” 

Adams. (Emphasis added). 
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The content of Willis’ Declaration is as follows: 

1. I am the President and CEO of CDM Media USA, Inc. 

2. CDM Media provides business to business technology 

marketing services. In particular, it provides global 

marketing assistance to information technology 

executives from Fortune 1000 companies by way of (1) 

web products, (2) interactive media campaigns, (3) 

workshops and (4) a variety of invitation-only custom 

technology marketing events. All of these products are 

aimed at an audience of C-Level corporate executives 

(for example CEOs, CIOs and CFOs) with information 

technology responsibility for their companies. 

3. I decided not to hire Plaintiff Christie Adams in 

February of 2009. 

4. The inside sales person job that Ms. Adams applied for 

involves cold calling C-Level executives of Fortune 

1,000 companies responsible for information technology, 

can be tedious and requires a team player. 

5. It was my belief that [Adams] was not qualified for the 

job because: 

a. She had no sales experience in the prior five 

years; 

b. As far as I understood, most of her recent 

(previous 10-15 years) sales experience was in 

publishing and/or selling phone book advertising 

which incorporated outside sales and face to face 

communication; 

c. As far as I understood, she had little or no 

sales experience that involved selling to C-Level 

corporate executives of Fortune 1,000 companies; 

and 

d. I was advised that she had said that she disliked 

tedious work.[4]

6. The company did not hire any younger applicants with 

equal or lower qualifications for the position. 

7. I was not involved in creating, reviewing or approving 

any advertising or posting for the position for which 

[Adams] applied, nor was I aware of the content of such 

advertising or posting, and I did not consider any 

criteria stated in any advertising or posting in making 

my decision not to hire [Adams]. 

 4

 Adams disputed making such a statement. 
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(Emphases added). 

Citing to Willis’ Declaration, CDM argued the record 

lacked substantial evidence of Adams’ qualification for the 

position. CDM made four arguments to establish that Adams was 

not qualified: (1) Adams had no sales experience in the five 

years prior to applying for the CDM position; (2) “very little 

of what Adams did more than five years before she applied for 

the inside sales job at CDM Media had anything to do with that 

job, because she spent much of her time before her more than 

five year hiatus as an outside sales person”; (3) Adams’ “prior 

sales experience did not involve selling to C-level executives 

of Fortune 1,000 companies”; and (4) “the work at CDM Media can 

be tedious” and Adams had expressed a dislike of tedious work. 

CDM maintained that it was justified in considering recent sales 

experience as an important job qualification because Adams had 

“no relevant work experience” “that [was] sufficient ground to 

hold that she was not qualified for the sales position.” 

CDM argued further that Adams failed to establish that 

CDM’s reasons for not hiring her were a “pretext” for 

discrimination. CDM contended that to establish pretext, Adams 

must show that CDM’s explanation was “unworthy of belief,” “a 

dishonest explanation,” or “deceit used to cover one’s tracks.” 

CDM claimed that “Willis’ honest belief in the reasons he had 

for deciding that Adams was not qualified prevents Adams from 
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showing pretext.” CDM also claimed that “[n]o one who was hired 

was similarly unqualified.” Even if CDM misjudged Adams’ 

qualifications, CDM contended that it had discretion in making 

hiring decisions and “[i]n order to overcome this discretion, 

Adams would have to show that she was ‘clearly superior’ or 

‘significantly’ or ‘markedly’ better than chosen candidates.” 

CDM argued that Adams made no such claims. 

On June 27, 2012, Adams filed a memorandum in 

opposition to the MSJ. Adams attached a declaration to her 

submission, stating “I had provided Bera with sufficient 

information of my qualifications before and during the phone 

interview to set up an in-person interview, and at the in-person 

interview.” Adams noted, “CDM did not state that job applicants 

needed to be currently employed in sales.” Adams represented 

that none of the “online classified ads placed by Defendant for 

employees that I saw” mentioned that the position required sales 

experience selling to C-Level corporate executives of Fortune 

1,000 companies. Likewise, Adams declared this “area of 

expertise” was not “mentioned to me during my telephone 

interview by Bera, nor during my in-person interview with Bera.” 

Adams also declared that, contrary to Willis’ 

statement, her sales experience in the ten to fifteen years 

prior to the interview was not limited to outside, face-to-face 

sales of printed phone book advertising, but also included 
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“online, selling websites and links for customers,” as well as 

“print and online advertising full-time in an inside sales 

position over the phone from September of 1998 to about May of 

2000, when our management promoted me into outside sales.” 

Adams stated that she possessed twenty-five years of “computer 

experience” at the time of the interview. 

Adams additionally set forth in her declaration that 

she “previously had dealt with many high-level executives dating 

back to my first full-time job in 1974.” Adams stated, “[e]ven 

though I was well qualified for the position, was a top sales 

associate when employed by the yellow pages, had won numerous 

sales awards there, and had traveled all over the world, I feel 

that CDM did not hire me because I was not ‘young’ enough for 

CDM Media.” 

In Adams’ memorandum in opposition, she argued first 

that it was “obviously not true” that she was unqualified for 

the job as she “was highly qualified for the job due to her 

experience in sales.” Adams maintained that “the job did not 

require sales experience,” and thus the argument that Adams did 

not have the required sales experience is “pure pretext to cover 

age discrimination.” Adams also denied stating that she did not 

like tedious work. 

On June 29, 2012, CDM filed a reply. CDM contended 

that Willis’ Declaration supported the fact that CDM had 
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“presented evidence that it did not hire younger applicants than 

Adams who had qualifications equal to or lower than hers.” CDM 

maintained that Adams presented no admissible evidence “that any 

person CDM Media hired is younger and/or equally or less 

qualified than Adams.” 

On July 5, 2012, a hearing was held on the MSJ. The 

court explained that “the question in the Court’s mind boiled 

down to the third prong of the McDonnell Douglas test.” The 

court’s view was that Adams had not raised a genuine issue of 

material fact with regard to pretext. 

Adams responded that she did not need to prove pretext 

because CDM had not satisfied its burden of showing that it had 

legitimate nondiscriminatory reasons not to hire Adams. CDM 

replied that the five-year gap in Adams’ work experience was a 

sufficient nondiscriminatory reason not to hire Adams. Adams’ 

counsel countered that the five-year gap was irrelevant because 

Adams “was a good, an excellent, a terrific, a fantastic 

salesperson. . . .” Counsel noted, “[y]ou know, this is not 

rocket science. You get on the phone. You have a very good 

personality. You know what the script is to talk to people 

about, which is provided by the company. So how does that have 

any relationship to a decision not to hire her?” 

Adams maintained that CDM’s contention that she said 

she did not like “tedious” work was not only false but was also 
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“created to substantiate their pretext for not hiring her.” 

Adams argued that although Willis stated the job required a 

“team player,” “he didn’t say anything about why [Adams was] not 

a team player.” 

In response to the court’s specific inquiry into what 

Adams’ arguments were concerning pretext, Adams argued the 

following: (1) the contentions that she did not have sales 

experience for five years or experience calling C-level 

executives were both pretext for discrimination because the 

posted job advertisements did not state that sales experience or 

experience in calling executives was required; (2) the “tedious 

work” comment was clearly a material issue of fact as anyone who 

heard such a comment would not hire a person for the job, and 

Willis based his decision on that comment; and (3) no evidence 

was presented that Adams was not a team player. Adams concluded 

that material issues of fact existed and that summary judgment 

was inappropriate. 

The circuit court orally ruled that, under McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973), Adams had made a 

prima facie case of discrimination: “This Court, under the 

pertinent McDonnell Douglas test . . . concludes that the 

plaintiff did meet their initial burden of establishing the 

prima facie showing.” Thus, the burden shifted to the employer, 

and “[t]he employer, based on the paper submitted to the Court, 
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did establish legitimate nondiscriminatory reason [sic] for not 

hiring the plaintiff.” The circuit court concluded that Adams 

“did not raise triable issues of material fact as to the 

employer’s reason that the non-hiring was pretextual.” 

Concerning the “tedious work” comment, the circuit 

court ruled “there may be a material – there may be a disputed 

fact there. But in this Court[’s] view, that alone is not 

enough to meet plaintiff’s burden, once we hit the third prong 

of the McDonnell Douglas test.” 

Concerning Adams’ argument that the persons hired 

instead of Adams “had no sales experience, or sales experience 

that was less than that of the plaintiff,” the circuit court 

ruled “all that’s submitted in support of that assertion is her 

own declaration.” The circuit court viewed that evidence as 

“not admissible.” Accordingly, the circuit court granted 

summary judgment in favor of CDM. 

The circuit court did not make separate findings of 

fact and conclusions of law. The July 24, 2012 Order Granting 

Defendant’s Motion for Summary Judgment Filed February 21, 2012, 

affirmed the circuit court’s oral ruling. 

[T]he [circuit court] finds and orders as follows: 

That [Adams] has met her burden of showing a prima facie 

case of age discrimination. That [CDM] has met its burden 

to articulate a legitimate nondiscriminatory reason for not 

hiring [Adams]. That the burden therefore shifted to 

[Adams] to demonstrate [CDM’s] reasons were perpetual. 

That [Adams] failed to raise a genuine issue of material 

fact as to whether [CDM’s] reasons were pretextual. That 
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[CDM’s MSJ] should therefore be granted and [Adams’] 

Complaint dismissed. 

Also on July 24, 2012, the circuit court entered its final 

judgment in favor of CDM. On August 23, 2012, Adams filed a 

timely notice of appeal to the ICA. 

C. Appeal to the ICA 

On December 26, 2012, Adams filed her Opening Brief 

with the ICA contending that the trial court erred in granting 

summary judgment in favor of CDM. Adams requested the ICA 

reverse the circuit court’s decision and remand for trial. 

Adams first argued that “CDM did not meet its initial 

burden of establishing a legitimate, nondiscriminatory 

justification for not hiring [Adams].” Adams contended that 

Willis’ statements concerning CDM not hiring any younger, 

equally or less qualified individuals than Adams, and “Adams did 

not have enough sales experience for the job,” “are conclusory 

statements not supported by evidence.” Adams maintained that 

she had no “duty to rebut these statements until the statements 

themselves had been properly supported by evidence.” Adams also 

maintained that “Willis’ conclusory statements that Adams didn’t 

measure up should have been supported by the resumes of the 

individuals who were hired.” 

On April 15, 2013, CDM filed its Answering Brief. CDM 

reasserted its contention that Adams was not qualified for the 

position. CDM argued that Adams “[i]n particular, [] failed to 
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establish the second element for a prima facie case, i.e., that 

she was qualified for the position for which she applied.” CDM 

maintained that it had articulated a legitimate, 

nondiscriminatory reason for not hiring Adams. Relying on 

Willis’ Declaration, CDM maintained the legitimate reason was 

that: 

Willis decided that [Adams] was not qualified for the job 

because [Adams] had no sales experience in the prior five 

years. Willis understood that [Adams’] recent sales 

experience (the previous 10-15 years) was in publishing and 

selling phone book advertising which involved outside sales 

and face to face communication. Willis understood [Adams] 

had little or no sales experience that involved selling to 

C-level executives of Fortune 1,000 companies. Willis was 

advised that [Adams] said that she disliked tedious work. 

Furthermore, CDM argued it “was entitled to use subjective 

hiring criteria.” CDM maintained that “contrary to [Adams’] 

contentions, CDM does not have the burden of proving that the 

persons it hired were more qualified than [Adams].” CDM argued 

that it could “appropriately consider factors not listed in the 

advertisement” in making hiring decisions. 

D. ICA decision 

On October 18, 2013, the ICA issued its Summary 

Disposition Order (SDO). The ICA held that CDM stated a 

legitimate nondiscriminatory reason for not hiring Adams, 

pursuant to McDonnell Douglas. The ICA found that “Adams did 

not produce persuasive, admissible evidence that CDM’s reasons 

were pretextual and thus failed to satisfy her burden under 

McDonnell Douglas.” Thus, the ICA affirmed the circuit court’s 
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rulings. Aside from the introductory paragraphs, the ICA’s 

decision was as follows: 

Adams was 59 years old when CDM declined her application to 

a sales position in their Honolulu office. CDM stated that 

its decision was based on Adams’ lack of recent and 

relevant work experience in inside sales to high level 

corporate executives in Fortune 1,000 companies. By 

articulating this “legitimate, nondiscriminatory reason” 

for refusing to hire Adams, CDM satisfied its burden under 

the pertinent McDonnell Douglas test for age 

discrimination. Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368, 

378, 14 P.3d 1049, 1059 (2000) (citing McDonnell Douglas 

Corp. v. Green, 411 U.S. 792 (1973)); (holding modified by 

Hazen Paper Co. v. Biggins, 507 U.S. 604 (1993)); and 

(holding modified by Wilmot v. Forest City Auto Parts, 2000 

WL 804616 (Ohio Ct. App. Jun. 22, 2000)). Adams did not 

produce persuasive, admissible evidence that CDM’s reasons 

were “pretext” and thus failed to satisfy her burden under 

McDonnell Douglas. Shoppe, 90 Hawaiʻi at 378-79, 14 P.3d at 

1059-60. Accordingly, the circuit court concluded that 

Adams “did not raise triable issues of material fact as to 

[CDM’s reasons for not hiring her]” and granted summary 

judgment for CDM. 

 Therefore, 

 IT IS HEREBY ORDERED that the July 24, 2012 

Final Judgment granting the July 24, 2012 “Order Granting 

Defendant’s Motion For Summary Judgment Filed February 21, 

2012” is affirmed. 

Adams v. CDM Media USA, Inc., No. CAAP-12-0000741, 2013 WL 

5707278 (App. Oct. 18, 2013) (SDO). The ICA issued its final 

judgment on November 21, 2013. 

E. Application for Writ of Certiorari 

On December 23, 2013, Adams filed her Application for 

Writ of Certiorari (Application).5

 Adams presented two questions 

for decision: 

 5

 CDM did not file a response to the Application. 
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A. Whether the [ICA] committed a grave error of law or 

fact in affirming the Circuit Court grant of summary 

judgment? 

B. Whether the decision of the [ICA] contains 

inconsistencies with those of this court of a magnitude 

dictating the need for further appeal? 

Adams maintains, inter alia, that “CDM failed to meet 

its initial burden of establishing a legitimate 

nondiscriminatory justification for not hiring Adams.” Adams 

contends that the evidence, viewed in the light most favorable 

to her, “leads to the conclusion that Willis did not even make 

the decision not to hire Adams.” Adams argues that “it was 

actually Bera who decided not to hire Adams as it would have 

been impossible for Willis to hire Adams without having 

interviewed her.”6

 Adams requests that this court review the 

ICA’s affirmation of the circuit court’s decision. 

II. Standard of Review 

“We review a circuit court’s award of summary judgment 

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

Shoppe v. Gucci Am., Inc., 94 Hawaiʻi 368, 376, 14 P.3d 1049, 

1057 (2000) (alteration omitted) (quoting Amfac, Inc. v. Waikiki 

 6

 Adams argues further that, under a “cat’s paw theory,” even if 

Willis was the ultimate decision-maker and held no discriminatory animus 

toward Adams, she could still prove discrimination by CDM if the ultimate 

adverse employment action was influenced or motivated in some way by the bias 

of an employee, such as Bera, who contributed to the decision. Adams argues 

that “to establish a legitimate nondiscriminatory reason for rejecting Adams’ 

application, CDM was required to submit a declaration by Bera explaining why 

he did not forward Adams[’] application on to Willis for further review.” 

Thus, Adams concludes this failure to establish a lack of discriminatory 

animus on the part of Bera was sufficient reason to deny summary judgment in 

favor of CDM. 
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Beachcomber Inv. Co., 74 Haw. 85, 104, 839 P.2d 10, 22 (1992)). 

“[S]ummary judgment is appropriate if the pleadings, 

depositions, answers to interrogatories, and admissions on file, 

together with the affidavits, if any, show that there is no 

genuine issue as to any material fact and that the moving party 

is entitled to a judgment as a matter of law.” Id. “A fact is 

material if proof of that fact would have the effect of 

establishing or refuting one of the essential elements of a 

cause of action or defense asserted by the parties.” Id. 

“[T]he evidence must be viewed in the light most favorable to 

the non-moving party.” Id. 

III. Discussion 

A. HRS Chapter 378 and the Shoppe-McDonnell test 

HRS § 378-2(1)(A) (1999) states, “It shall be an 

unlawful discriminatory practice: [] Because of . . . age . . . 

[f]or any employer to refuse to hire . . . any individual.”7

 

In enacting Revised Laws of Hawaiʻi (RLH) § 90A-1 

(1963), the precursor to HRS § 378-2, HRS Tables of Disposition, 

 7

 HRS § 378-2(1)(A) (1999) states in full: 

It shall be an unlawful discriminatory practice: 

(1) Because of race, sex, sexual orientation, age, 

religion, color, ancestry, disability, marital status, or 

arrest and court record: 

(A) 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 . . . . 
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at 8 (1968), the legislature stated that the purpose of the bill 

was 

to protect and safeguard the right and opportunity of all 

persons to seek, obtain, and hold employment or membership 

in a labor organization without discrimination or 

abridgement on account of race, sex, age, religion, color 

or ancestry. It is not the intent of this bill to tell an 

employer whom to hire, but to declare it to be unlawful for 

an employer to refuse to employ, or to discharge from 

employment, any individual because of race, sex, age, 

religion, color or ancestry, nor is it the intent of this 

bill to interfere with management or an employer’s 

prerogative to select the best qualified person for any 

given position in accordance with established occupational 

qualifications that are applied equally to all persons. 

S. Stand. Comm. Rep. No. 573, in 1963 Senate Journal, at 866 

(emphases added) (hereinafter 1963 Senate Journal); see 1963 Haw. 

Sess. Laws Act 180, § 1 at 223. The purpose of the bill is to 

“afford[s] all persons equal opportunities in employment . . . , 

with the qualifications of the applicants being the sole test in 

selecting employees.” 1963 Senate Journal at 866. 

HRS Chapter 378 endorses an employer’s authority to 

decline to hire employees based on legitimate job 

qualifications. That chapter does not “[p]rohibit an employer 

. . . from refusing to hire . . . any individual for reasons 

relating to the ability of the individual to perform the work in 

question.” HRS § 378-3(3) (Supp. 1999) (emphasis added). 

Therefore, when hiring employees, an employer may consider any 

reason related to the ability of an individual to perform the 

work in question, but the employer is not permitted, subject to 
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exceptions not relevant to this case,8 from considering age, as 

well as the other categories set forth in HRS § 378-2(1). 

A plaintiff can prove age discrimination “by adducing 

circumstantial evidence of discrimination.”9 Shoppe, 94 Hawaiʻi 

at 378, 14 P.3d at 1059. When analyzing a claim of age 

discrimination relying on circumstantial evidence, this court 

has set forth a three-step analysis, modifying the test adopted 

in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). 

Shoppe, 94 Hawaiʻi at 378-79, 14 P.3d at 1059-60. “First, the 

plaintiff must establish a prima facie case of discrimination by 

demonstrating, by a preponderance of the evidence, the following 

four elements: (1) that plaintiff is a member of a protected 

class; (2) that plaintiff is qualified for the position for 

which plaintiff has applied . . . ; (3) that plaintiff has 

 8

 HRS § 378-3 provides, inter alia, that, the provisions of Part 1 

of HRS Chapter 378 will not: repeal any law, prevent employers from 

establishing “bona fide occupational qualifications,” affect the operation of 

retirement plans, prohibit religious organizations from preferring 

individuals of the same religion, conflict with security regulations of the 

United States or the State, require unreasonable structural changes or 

expensive equipment alterations to accommodate a person with a disability, 

prohibit schools from considering criminal convictions, prohibit financial 

institutions from considering any criminal offense involving dishonesty or a 

breach of trust, preclude any employee from bringing a civil action for 

sexual harassment or sexual assault, or require an employer to accommodate 

the needs of a nondisabled person associated with a person with a disability. 

See HRS § 378-3. 

9

 “Because an employer who discriminates is unlikely to leave a 

smoking gun attesting to a discriminatory intent . . . a victim of 

discrimination is seldom able to prove his claim by direct evidence, and is 

usually constrained to rely on circumstantial evidence.” McMillan v. 

Examination Mgmt. Servs., Inc., No. 94 CIV. 2229 LAP, 1996 WL 551725 

(S.D.N.Y. Sept. 27, 1996) (internal quotation marks omitted). 
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suffered some adverse employment action . . . ; and (4) that the 

position still exists.”10 Id. at 378, 14 P.3d at 1059. 

In the second step, “[o]nce the plaintiff establishes 

a prima facie case of discrimination, the burden of production 

shifts to the defendant to articulate a legitimate, 

nondiscriminatory reason for the adverse employment action.” 

Id. “The employer’s explanation must be in the form of 

admissible evidence and must clearly set forth reasons that, if 

believed by the trier of fact, would support a finding that 

unlawful discrimination was not the cause of the challenged 

employment action.” Id. “Although the burden of production is 

shifted to the employer, the ultimate burden of persuading the 

trier of fact that the employer intentionally discriminated 

against the plaintiff remains at all times with the plaintiff.” 

Id. at 378-79, 14 P.3d at 1059-60 (alteration omitted) (internal 

quotation marks omitted) (quoting Texas Dep’t of Cmty. Affairs 

v. Burdine, 450 U.S. 248, 253 (1981)). 

In the third step, “if the employer rebuts the prima 

facie case, the burden reverts to the plaintiff to demonstrate 

 10 The fourth element of the McDonnell Douglas prima facie analysis 

requires proof “that, after [the complainant’s] rejection, the position 

remained open and the employer continued to seek applicants from persons of 

complainant’s qualifications.” McDonnell Douglas Corp. v. Green, 411 U.S. 

792, 802 (1973) (emphasis added). Shoppe does not require the claimant to 

provide proof of the qualifications of the applicants that the employer 

continued to seek for the position. Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 

1059. 
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that the defendant’s proffered reasons were ‘pretextual.’” Id. 

at 379, 14 P.3d at 1060. A plaintiff may establish pretext by 

“persuading the court that a discriminatory reason more likely 

motivated the employer or . . . by showing that the employer’s 

proffered explanation is unworthy of credence.” Id. 

B. Prima facie case 

In the present case, Adams clearly established a prima 

facie case of discrimination and therefore satisfied the first 

step of the Shoppe-McDonnell standard. 

At the hearing on the motion for summary judgment, the 

circuit court made a specific finding that Adams established a 

prima facie case, thus expressly determining that Adams was 

qualified for the position. “This Court . . . concludes that 

the plaintiff did meet their [sic] initial burden of 

establishing the prima facie showing.” The court reiterated 

this finding in the written order granting the MSJ: “the 

[circuit court] finds and orders as follows: That [Adams] has 

met her burden of showing a prima facie case of age 

discrimination.” 

The record amply demonstrates that Adams clearly 

satisfied all four elements of the first prong of the ShoppeMcDonnell test. In its Answering Brief to the ICA, CDM argued 

that Adams “[i]n particular, [] failed to establish the second 

element for a prima facie case, i.e., that she was qualified for 
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the position for which she applied.” CDM did not contest the 

first, third, and fourth requirements of Adams’ prima facie 

case. 

In any event, establishment of the first, third, and 

fourth elements are beyond dispute. First, Adams was fifty-nine 

years old at the time when she applied with CDM, so she is part 

of a protected class.11 As to the third element, Adams suffered 

an adverse employment action when CDM decided not to hire her. 

In regard to the fourth element, the position continued to exist 

after she received a rejection letter on March 1, 2009, because 

later that year CDM hired seven persons as International Media 

Sales Executives. 

As to the second element, it is also clear that Adams 

was qualified. CDM argued to the ICA that Adams was not 

qualified for the position because she did not have recent or 

relevant sales experience. However, the phone sales position 

did not require sales experience. 

 11 The bill enacting RLH § 90A-1 originally included a specific 

prohibition on discrimination in hiring of persons between the ages 40-65, 

which was later deleted. H. Stand Comm. Rep. Nos. 31 & 80, in 1963 House 

Journal, at 591 & 607; S. Stand. Comm. Rep. Nos. 399 & 810, in 1963 Senate 

Journal, at 810 & 867. The Senate explained, “The deletion of reference to 

ages 40 to 65 is not to be construed . . . as an avoidance [of] the problems 

of our older workers, but rather as an attempt to make discrimination on the 

basis of age more inclusive by removing specific limitations.” 1963 Senate 

Journal at 867. While HRS § 378-2(1) does not specify specific age 

limitations, Adams’ inclusion as a protected person was not challenged in 

this case. 
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First, the advertisement CDM posted for the job stated 

that sales experience was “preferred,” but not required. If 

sales experience was a “preference” and not a minimum 

qualification, then Adams could have had no sales experience and 

she still would have been qualified for the job. 

Second, the hiring solicitation posted by CDM promised 

extensive training. “We offer recognized training to build upon 

your formal education/experience and teach you the business of 

advertising and summit sales in order for you to progress and 

build your career quickly.” “Here are a few key benefits of 

working at CDM Media: . . . First-class Sales Training Program 

from the best in the industry.” Similarly, newspaper articles 

regarding CDM’s solicitation indicated “[a]ll sales hires will 

go through an eight-week comprehensive training course.” The 

offer of extensive training underscores the fact that no sales 

experience was required. 

Moreover, Adams had extensive sales experience. Adams 

owned and operated her own marketing company for twelve years, 

during which time she “[w]orked directly with owners of 

businesses, executives of nonprofits and governmental managers.” 

Subsequently, Adams worked for five years with Verizon. During 

that time, Adams worked in both “inside” and “outside” sales. 

Viewed in the light most favorable to Adams, this fact was 

specifically recognized by CDM when one of its agents made the 
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hand-written notes “1/2 inside” and “1/2 outside” on Adams’ 

first email besides the boxed-in words “Verizon/The Yellow 

Pages.” While employed as a sales person at Verizon, Adams won 

at least one award specifically for her inside/telephone sales 

work. In addition, Adams won six other awards, all for 

outperforming her peers and maintaining consistently positive 

sales results. Adams denied stating that she disliked tedious 

work, and thus this evidence is not weighed against Adams on 

summary judgment. Because sales experience was merely 

“preferred” and Adams had extensive sales experience, Adams was 

qualified for the position and clearly satisfied the second 

element of the prima facie test. 

Therefore, because the circuit court made an express 

determination that Adams established a prima facie case, and the 

evidence in the record, viewed in the light most favorable to 

Adams, demonstrates that she met the four elements of the 

Shoppe-McDonnell prima facie test, Adams established a prima 

facie case of age discrimination. 

C. Legitimate, nondiscriminatory reason 

Once Adams established a prima facie case of age 

discrimination, a burden of production shifted to CDM to 

“articulate a legitimate, nondiscriminatory reason” for not 

hiring Adams. Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059. 
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In this case, Willis articulated four reasons in 

paragraph 5 of the Declaration for not hiring Adams:

5. It was my belief that the Plaintiff was not qualified 

for the job because: 

a. She had no sales experience in the prior five 

years; 

b. As far as I understood, most of her recent 

(previous 10-15 years) sales experience was in 

publishing and/or selling phone book 

advertising which incorporated outside sales 

and face to face communication; 

c. As far as I understood, she had little or no 

sales experience that involved selling to CLevel corporate executives of Fortune 1,000 

companies; and 

d. I was advised that she had said that she 

disliked tedious work. 

Accordingly, we consider whether Willis’ Declaration articulates 

a legitimate, nondiscriminatory reason for the adverse 

employment action. 

1. Defining “legitimate” in the context of HRS Chapter 378 

“Legitimate” is defined as “lawful,” or “genuine.” 

Black’s Law Dictionary 984 (9th ed. 2009). “[A] ‘legitimate’ 

reason must be one that is justifiable in view of the purposes 

of the [statute].” Hill v. Mississippi State Emp’t Serv., 918 

F.2d 1233, 1243-44 (5th Cir. 1990) (Rubin, J., dissenting). 

In applying the second step of the analysis, “[t]he 

employer’s explanation must be in the form of admissible 

evidence and must clearly set forth reasons that, if believed by 

the trier of fact, would support a finding that unlawful 

discrimination was not the cause of the challenged employment 

action.” Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059. However, 
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if the employer’s articulated reason is not legitimate (or is 

discriminatory) or if the articulated reason is not in the form 

of admissible evidence, then the burden of production has not 

been met.12

a. Legislative intent of HRS § 378-2 

Legislative history is a valuable indicator of the 

purpose of a statute. “This court’s primary duty in 

interpreting and applying statutes is to ascertain and give 

effect to the legislature’s intention to the fullest degree.” 

Nat’l Union Fire Ins. Co. v. Ferreira, 71 Haw. 341, 345, 790 

P.2d 910, 913 (1990); HRS § 1-15(2) (2009) (“The reason and 

spirit of the law, and the cause which induced the legislature 

to enact it, may be considered to discover its true meaning.”). 

In interpreting statutes, “this court ‘must read statutory 

language in the context of the entire statute and construe it in 

a manner consistent with its purpose.’” Schmidt v. HSC, Inc., 

131 Hawaiʻi 497, 508, 319 P.3d 416, 426 (2014) (emphasis added) 

(quoting Blaisdell v. Dep’t of Pub. Safety, 113 Hawaiʻi 315, 318, 

151 P.3d 796, 799 (2007)).

The purpose of HRS Chapter 378 is to ensure that 

hiring criteria are “in accordance with established occupational 

 12 See HRE Rule 301(3); (defining the “burden of producing evidence” 

as the obligation of a party to introduce evidence of the existence or 

nonexistence of a relevant fact sufficient to avoid an adverse peremptory 

finding on that fact”); see also HRE Rule 303(b). 
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qualifications that are applied equally to all persons.” 1963 

Senate Journal at 866. When the law was initially enacted as 

Act 180, section (1)(a) of the law read as follows: 

(1) It shall be unlawful employment practice or unlawful 

discrimination: 

(a) For an employer to refuse to hire or employ or to 

bar or discharge from employment, any individual 

because of his race, sex, age, religion, color or 

ancestry, provided that an employer may refuse to 

hire an individual for good cause relating to the 

ability of the individual to perform the work in 

question . . . . 

See 1963 Haw. Sess. Laws Act 180, § 1 at 223, codified at RLH 

§ 90A-1, recodified to HRS §§ 378-2 and 378-3 (emphasis added).13 

Thus, as enacted, the law explicitly linked the authority to 

refuse to hire or discharge to “good cause relating to the 

ability of the individual to perform the work in question.” As 

explained by the Senate committee report, specifically referring 

to section (1)(a) of Act 180, the policy supported by the law 

was to “afford all persons equal opportunities in employment 

. . . with the qualifications of the applicants being the sole 

test in selecting employees.” 1963 Senate Journal at 866 

(emphasis added).14 

 13 The minority asserts that “the 1963 version [of the statute] was 

unclear.” Minority at 25. However, the minority declines to demonstrate the 

alleged lack of clarity. 

14 In full, the passage provides as follows: 

This bill does not give minority group members any special 

privileges in obtaining employment but afford [sic] all 

persons equal opportunities in employment regardless of 

race, sex, age, religion, color or ancestry with the 

(continued. . .) 
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Section 1(a) of the bill provides in part that an employer 

may refuse to hire an individual for good cause relating to 

the ability of the person to perform the work in 

question[]. An employer may refuse to hire an individual 

for justifiable and reasonable cause. In this connection, 

the employer may, depending on the job, consider the 

training, experience, intelligence, personality and 

appearance of the applicant where any or all of these 

factors are applied equally to all applicants and are 

determinative in the selection of the best qualified.[15]

Id. at 867 (emphases added) (internal quotation marks omitted). 

Chapter 378 therefore does not prohibit an employer from 

refusing to hire an individual for reasons that are applied 

equally to all applicants and are “relat[ed] to the ability of 

the individual to perform the work in question.” HRS § 378-3(3) 

(emphasis added). Thus, a “legitimate, nondiscriminatory 

reason” not to hire a person, in view of the purposes and 

statutory provisions of HRS Chapter 378, must be a reason 

related to the “ability of the individual to perform the work in 

question.” 

b. Subsequent recodification did not alter the intent of the 

legislature 

RLH § 90A-1 was recodified to HRS Chapter 378 in 1981 

and reorganized with the addition of protections for women and 

government workers. 1981 Haw. Sess. Laws Act 94, §§ 1-3 at 184-

 (. . .continued) 

qualifications of the applicants being the sole test in 

selecting employees. 

1963 Senate Journal at 866. 

15 Appearance cannot include color or racial characteristics. 1963 

Senate Journal at 867. 
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89. Reformation or reenactment of a statute does not alter the 

purpose or intent of a law unless that is the express intent of 

the legislature. Muniz v. Hoffman, 422 U.S. 454, 470 (1975) 

(“It will not be inferred that the legislature, in revising and 

consolidating the laws, intended to change their policy, unless 

such an intention be clearly expressed.” (emphasis added)). 

If a revised statute is ambiguous or susceptible of two 

constructions, reference may be made to the prior statute 

for the purpose of ascertaining intent. But mere 

differences in words or arrangement should not generate an 

inference of legislative intent to change the former rule. 

A revision will not be construed as altering a particular 

statute absent a clear, unmistakable legislative intent. 

Le Mars Mut. Ins. Co. of Iowa v. Bonnecroy, 304 N.W.2d 422, 424 

(Iowa 1981) (emphasis added) (citations omitted); see also Pye 

v. State, 919 A.2d 632, 637 (Md. 2007) (“[A] change in a statute 

as part of a general re-codification will ordinarily not be 

deemed to modify the law unless the change is such that the 

intention of the Legislature to modify the law is 

unmistakable.”). 

As stated by the legislature, the purpose of the 1981 

revisions was to “extend coverage of Part I (Discriminatory 

Practices) of the Employment Practices Act, Chapter 378, Hawaii 

Revised Statutes, to Employees of the State and county 

governments to help ensure that women are provided equal 

treatment in employment when disabled because of pregnancyrelated conditions, and to clarify policies and procedures in 

the area of enforcement with respect to unlawful or 
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discriminatory employment practices.” H. Stand. Comm. Rep. No. 

549, in 1981 House Journal, at 1166 (emphases added). Thus, the 

express intent of the 1981 legislature was to expand the 

safeguards offered by the employment discrimination provision of 

HRS Chapter 378. In contrast, the legislative history does not 

reveal any intention to alter the fundamental purposes of the 

employment discrimination law or to reduce its protections. 

Therefore, the 1963 legislative history continues to provide a 

significant and reliable averment that the purpose of HRS § 378-

2 is to “afford all persons equal opportunities in employment 

. . . with the qualifications of the applicants being the sole 

test in selecting employees.” 1963 Senate Journal at 866; see 

Muniz, 422 U.S. at 470. 

As recodified, HRS § 378-3(3) preserves the intent of 

the legislature. In the 1981 revision, the legislature shifted 

language “provid[ing] that an employer may refuse to hire an 

individual for good cause relating to the ability of the 

individual to perform the work in question,” 1963 Haw. Sess. 

Laws Act 180, § 1 at 223, to “Nothing in this part shall be 

deemed to . . . [p]rohibit . . . an employer . . . from refusing 

to hire . . . any individual for reasons relating to the ability 

of the individual to perform the work in question.” HRS § 378-

3. Thus, following the recodification, the substance of the 

statute is identical: in 1963 the language provided an exception 
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to the prohibition against discriminatory hiring or discharging 

practices and the language continues to do so in the 1981 

revision, underscoring the fact that the legislature has 

provided no indication that the purpose of the statute has been 

altered. 

Nonetheless, the minority maintains that the purpose 

and intent of HRS § 378-2 was transformed based on the 1981 

recodification. Minority at 24-25. However, the minority does 

not provide any legislative history to support its contention 

that the 1981 revision was intended to alter the purpose of HRS 

Chapter 378. See Minority at 22-26. Thus, the interpretation 

of the minority must be rejected as the legislature did not 

express any intent to change the policy of the statute. Muniz, 

422 U.S. at 470; Le Mars Mut. Ins. Co., 304 N.W.2d at 424 (“A 

revision will not be construed as altering a particular statute 

absent a clear, unmistakable legislative intent.”).16 

 16 Although the minority contends the 1963 legislative history is 

irrelevant, minority at 26-27 n.6, it nevertheless also disputes the 

interpretation of certain passages from the 1963 Senate Journal. Id. The 

minority argues that statements from the journal “that reference the 

qualifications of the applicant,” “when viewed in context, [] appear to be 

general statements of support for equal opportunity, and not directives to 

employers to base their hiring decisions solely on an applicant’s 

qualifications.” Minority at 26 n.6. Respectfully, the legislature’s 

statement that “This bill . . . afford[s] all persons equal opportunities in 

employment . . . with the qualifications of the applicants being the sole 

test in selecting employees,” 1963 Senate Journal at 866 (emphasis added), is 

much more than a “general statement of support,” especially when viewed in 

conjunction with the specific statutory language adopted by the legislature 

in RLH § 90A-1. 1963 Haw. Sess. Laws Act 180, § 1 at 223, recodified at HRS 

§§ 378-2 and 378-3. 
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The minority alternatively argues, “Even if the 

Majority is correct that the purpose of the current statute 

remains the same as the 1963 version, our plain reading 

interpretation of the current statute is consistent with that 

legislative purpose when viewed in light of the whole 

legislative history.” Minority at 26 (emphasis added). The 

minority’s argument does not provide the context by which to 

understand its reference to the “light of the whole legislative 

history” or provide legislative history that contradicts the 

1963 legislature’s intent as described above. Thus, if the 

purpose of the current statute “remains the same as the 1963 

version,” then the minority’s “plain reading interpretation” of 

the current statute is pointedly inconsistent with the “whole 

legislative history.” 

Finally, the minority contends that when the 1963 

legislature made the statement that the qualifications of the 

applicants shall be the sole test in selecting employees,17 “the 

legislature was addressing concerns that the statute might 

create special preferences (such as hiring quotas) for 

minorities.” Minority at 26 n.6. The minority does not present 

any authority in support of a legislative concern regarding 

“special preferences.” Surely, the right of individuals 

 17 See supra note 14 for the full text of the “sole test” statement. 
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protected under HRS § 378-2 to expect that their ability to 

perform the work in question will be the “sole test” in an 

employment decision, subject to the exceptions of HRS § 378-3, 

which is not a “special preference” but rather the embodiment of 

the protection that HRS Chapter 378 guarantees. 

c. Principles of statutory construction reinforce the 

legislature’s intent 

When construing a statute, our foremost obligation is 

to ascertain and give effect to the intention of the 

legislature, which is to be obtained primarily from the language 

of the statute itself. Kauai Springs, Inc. v. Planning Comm’n 

of Cnty. of Kauai, 133 Hawaiʻi 141, 163, 324 P.3d 951, 973 

(2014). We must read statutory language in the context of the 

entire statute and construe it in a manner consistent with its 

purpose. Id. Additionally, “Laws in pari materia, or upon the 

same subject matter, shall be construed with reference to each 

other.” HRS § 1-16. Further, when construing a statute, courts 

are “bound to give effect to all parts of a statute, and no 

clause, sentence, or word shall be construed as superfluous, 

void, or insignificant if a construction can be legitimately 

found which will give force to and preserve all words of the 

statute.” Fagaragan v. State, 132 Hawaiʻi 224, 241, 320 P.3d 

889, 906 (2014) (citation and alteration omitted). 
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HRS §§ 378-2 and 378-3 both concern lawful employment 

practices. Thus, in order to give effect to HRS § 378-2, the 

prohibitions of that section must be read together with HRS 

§ 378-3. See HRS § 1-16. In HRS § 378-3, the legislature has 

provided a list of eleven specific exceptions to the employment 

discrimination prohibition of HRS § 378-2. For instance, as 

stated, the legislature permits an adverse employment decision 

when the reason for that decision is related to the person’s 

ability to perform the work in question. HRS § 378-3(3). Other 

exceptions, inter alia, allow religious organizations to give 

employment preference to individuals of the same religion, HRS § 

378-3(5), and exempt employers from having to make 

“unreasonable” structural changes or “expensive” equipment 

alterations to accommodate a person with a disability.18 HRS § 

378-3(7). 

Statutory lists may be interpreted under the principle 

of expressio unius est exclusio alterius; i.e., the express 

inclusion of certain items in a statutory list implies the 

exclusion of others and of alternatives. Fagaragan, 132 Hawaiʻi 

at 242, 320 P.3d at 907. This principle applies equally to a 

statutory list of exceptions; when the legislature has created 

certain exceptions, “it does not follow that courts have 

 18 For a summary of all the exceptions, see supra note 8. 
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authority to create others.” United States v. Johnson, 529 U.S. 

53, 58 (2000). The “proper inference” from a list of exceptions 

to a statute is that the legislature “considered the issue of 

exceptions and, in the end, limited the statute to the ones set 

forth.” Id.; see also Thurston v. Bishop, 7 Haw. 421, 442 (Haw. 

Kingdom 1888) (“The rule of construction, expressio unius est 

exclusio alterius, then, ought to exclude all other 

exceptions.”). In Hawaiʻi, the principle of expressio unius est 

exclusio alterius is applicable “where in the natural 

association of ideas the contrast between a specific subject 

matter which is expressed and one which is not mentioned leads 

to an inference that the latter was not intended to be included 

within the statute.” Int’l Sav. & Loan Ass’n, Ltd. v. Wiig, 82 

Hawaiʻi 197, 201, 921 P.2d 117, 121 (1996). 

Thus, in applying the rule of construction, expressio 

unius est exclusio alterius, this court looks to the contrast 

provided by the natural association of ideas expressed in the 

statutory list. Id. Here, there is a decided contrast between 

the eleven specific exceptions presented by HRS § 378-3 and 

potential exceptions that are not mentioned. For example, there 

is a clear delimitation intended by the legislature’s reference 

in HRS § 378-3(5) to “religious or denominational institution[s] 

or organization[s],” such that a contrast is clearly implied 

that the legislature did not intend that private businesses 
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could also give employment preference to individuals who share a 

common religion or denomination. Similarly, the legislature’s 

use of “unreasonable structural changes or expensive equipment 

alterations” in HRS § 378-3(7) describes a standard that 

contemplates a clear contrast to reasonable structural changes 

or non-expensive alterations of equipment; thus, it may be 

inferred that the legislature plainly intended that an 

alteration involving a minimal or nominal cost may not be 

asserted as a basis to not hire a person with a disability. 

Accordingly, the contrast between the exceptions 

listed in HRS § 378-3 and those not listed admits the firm 

conviction that the legislature “considered the issue of 

exceptions and, in the end, limited the statute to the ones set 

forth.” Johnson, 529 U.S. at 58. By the same analysis, the 

legislature’s permission to allow an employer to refuse to hire, 

refer or discharge an individual “for reasons related to the 

ability of the individual to perform the work in question,” HRS 

§ 378-3(3) (emphasis added), implies a clear contrast to reasons 

that have no relation to the ability to perform the job. Thus, 

in accordance with the principle of expressio unius est exclusio 

alterius, the exceptions of HRS § 378-3 do not permit an adverse 

employment decision to be based on reasons unrelated to the 

ability of the individual to perform the work in question. 
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The minority offers the criticism that our decision 

treats HRS § 378-3 “as an exclusive list,” and “the legislature 

was merely attempting to ensure that a particular group of key 

rights remained protected without listing every possible basis 

for an adverse employment decision.” Minority at 23, 27. Under 

the minority’s reasoning, “[n]othing in either [HRS §§ 378-2 or 

378-3] tells the employer that it must limit its hiring 

decisions to reasons related to the ‘ability of the individual 

to perform the work in question.’” Minority at 23; see also 

minority at 25. This analysis is flawed for several reasons. 

First, the treatment of the eleven exceptions provided 

in HRS § 378-3 as an exclusive list is in full accordance with 

the principle of expressio unius est exclusio alterius, based 

upon the self-evident contrast between the eleven exceptions 

prescribed by HRS § 378-3 and unspecified possible exceptions. 

Johnson, 529 U.S. at 58. Second, if nothing tells the employer 

that it must limit its hiring decisions to reasons related to 

the ability of the individual to perform the work in question, 

then “all” nondiscriminatory reasons are permitted. If all 

nondiscriminatory reasons are permitted, then there would be no 

purpose for an exception involving a subset of nondiscriminatory 

reasons “relating to the ability of the individual to perform 

the work in question.” See HRS 378-3(3). Thus, the contention 

of the minority renders the exception provided in HRS § 378-3(3) 
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as superfluous, contrary to our duty to give effect to all parts 

of a statute when a construction can be legitimately found that 

will give force to and preserve all words of the statute. See 

Fagaragan, 132 Hawaiʻi at 241, 320 P.3d at 906. Third, it is 

plain that by construing the exceptions in HRS § 378-3 to have 

unlimited expansion for “possible bas[es]” not listed by the 

legislature, the minority’s analysis renders not just HRS § 378-

3(3), but all non-discriminatory exceptions in HRS § 378-3 as 

superfluous. The practical effect of a boundless expansion of 

the bases for exceptions listed in HRS § 378-3 is to eliminate 

the protections afforded by HRS § 378-2. 

In order to give proper effect to the intention of the 

legislature, HRS § 378-2 must be construed in the context of the 

entire statute and consistent with its purpose to afford all 

persons equal opportunities in employment. See 1963 Senate 

Journal at 866. When read to limit lawful adverse employment 

decisions to those based on reasons related to the ability of 

the individual to perform the work in question, both HRS §§ 378-

2 and 378-3(3) are enforced and preserved, in accordance with 

the mandate that laws on the same subject “shall be construed 

with reference to each other.” See HRS § 1-16. Further, when 

read in the context of the exceptions provided by HRS § 378-3, 

the prohibitory language of HRS § 378-2 is consistent with the 

purpose identified in its legislative history “that the 
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qualifications of the applicants be[] the sole test in selecting 

employees.” 1963 Senate Journal at 866; see Kauai Springs, 

Inc., 133 Hawai‘i at 163, 324 P.3d at 973. 

d. Requirement of a legitimate, nondiscriminatory reason in our 

prior decisions 

The requirement that legitimate, nondiscriminatory 

reasons for an adverse employment action must pertain to the 

individual’s inability to perform the work in question is 

supported by our prior analysis of HRS § 378-2. In Shoppe, the 

employee, Shoppe, alleged age discrimination when she was 

terminated by her employer, Gucci. Shoppe, 94 Hawaiʻi at 381, 14 

P.3d at 1062. The reason articulated by Gucci for firing Shoppe 

was that she was not performing her job in a satisfactory 

manner. Shoppe, 94 Hawaiʻi at 374-76, 381, 14 P.3d at 1055-57, 

1062. Shoppe’s supervisor, Perreira, testified that she had 

visited Shoppe’s Maui store and found important inventory 

documents lying on the floor, which needed to be filled out and 

faxed to the Gucci warehouse on Oʻahu in order for inventory to 

be shipped to Maui that day. Shoppe missed the deadline for 

faxing the papers and had done so numerous times, resulting in 

Perreira personally reprimanding Shoppe on several occasions for 

her tardiness. Id. 

The reasons Gucci articulated for firing Shoppe were 

therefore related to timely report filing, an important function 
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of Shoppe’s position at Gucci. Under these circumstances, the 

Shoppe court found that Gucci had articulated legitimate 

nondiscriminatory reasons: 

[T]here does not appear to be a genuine issue of fact 

regarding Plaintiff’s failure to perform the duties of [a] 

store manager satisfactorily. Therefore Defendants have 

articulated legitimate, nondiscriminatory reasons for the 

adverse employment action against Plaintiff. 

Shoppe, 94 Hawaiʻi at 381, 14 P.3d at 1062 (emphases added). In 

other words, because the reasons Gucci articulated for the 

adverse employment action were related to Shoppe’s inability to 

adequately perform the job in question, Gucci articulated a 

legitimate, nondiscriminatory reason for firing Shoppe. 

Similarly, in Simmons v. Aqua Hotels & Resorts, Inc., 

130 Hawaiʻi 325, 310 P.3d 1026 (App. 2013), an employee alleged, 

inter alia, age discrimination under HRS § 378-2(1)(A). Id. at 

328, 310 P.3d at 1029. The reasons given by the employer for 

the adverse employment action was that the employee’s position 

had been restructured as part of cost-cutting measures following 

bankruptcy.19 Id. The employee was informed she could apply for 

the restructured position. Id. at 327-28, 309 P.3d at 1028-29. 

The employee declined to apply and the employer hired a 

different person for the new position. Id. The ICA found that 

the employee established a prima facie case of discrimination. 

 19 The new position was substantively different, including a new 

title, redefined job description, different benefits, reduced salary, and 

required relocation to Kauaʻi. Simmons, 130 Hawaiʻi at 327, 310 P.2d at 1028. 
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Id. at 330-31, 309 P.3d at 1031-32. The ICA next found that the 

employer met its burden to produce legitimate, nondiscriminatory 

reasons for the adverse employment action because the employer’s 

restructuring plan eliminated the employee’s original position, 

the job description for the new position had been redefined, and 

the job holder was required to be readily available on-site. 

Id. at 331, 309 P.3d at 1029, 1032. The reasons provided were 

related to a person’s ability to perform the work in question 

because they defined the requirements of the job. Therefore, 

the explanation given for the adverse employment action was 

legitimate because it was related to the ability of the employee 

to perform the work in question.20

In Dir., Dep’t of Labor & Indus. Relations v. Si-Nor, 

Inc., No. 27497, 2009 WL 405926 (App. Feb. 18, 2009) (mem.), an 

employee alleged discrimination and a prima facie case of 

discrimination was established.21 Id. at *8. The Hawaiʻi Labor 

Relations Board (HLRB) found testimony regarding the employee’s 

insubordination and involvement in altercations with others more 

 20 The ICA went on to vacate summary judgment in favor of the 

employer because it found genuine issues of material fact as to the 

employer’s credibility; that is, the plaintiff had raised a material issue as 

to pretext. “Based on this record, a rational fact-finder could infer that 

Defendants’ stated reasons for Plaintiff’s termination lacked credibility and 

were pretextual.” Id. at 331, 310 P.3d at 1032. 

21 In Si-Nor, it was alleged that the employer discriminated against 

the employee for having reported work place safety issues, in violation of 

HRS § 396-8(e)(3). Si-Nor, 2009 WL 405926, at *7-*8. The ICA and the Hawaiʻi 

Labor Relations Board applied the three-part Shoppe-McDonnell analysis. Id. 

at *8-9. 
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credible than the employee’s testimony. Id. at *9. The ICA 

determined that “based on the testimony that the HLRB found 

credible, [the employer] had legitimate reasons for firing [the 

employee].” Id. The reasons given by the employer in Si-Nor — 

the ability of the employee to work without insubordination and 

disruptive altercations — were related to the employee’s ability 

to perform the work in question and were therefore legitimate. 

In contrast, this court evaluated the reason 

articulated by the employer in Sam Teague, Ltd. v. Hawaiʻi Civil 

Rights Commission, 89 Hawaiʻi 269, 971 P.2d 1104 (1999), and 

determined that the articulated reason was not legitimate.22 Id. 

at 277-79, 971 P.2d at 1112-14. In Sam Teague, a female 

employee was terminated after taking a leave of absence for 

pregnancy, in violation of the employer’s policy of not allowing 

leave in the first year of employment. Id. at 272-74, 971 P.2d 

at 1107-09. This court held that the employer’s “no leave” 

policy violated Hawaiʻi law and administrative rules that 

required employers to provide a leave of absence for a 

“reasonable period of time” for “pregnancy, childbirth, or 

 22 In Sam Teague, the employer appealed the decision and award in 

favor of the employee by the Hawai#i Civil Rights Commission. The court 

analyzed the claims under the Shoppe-McDonnell rubric and the definitions and 

requirements of HRS §§ 378-1, -2, and -3. Sam Teague, 89 Hawaiʻi 269, 278-81, 

971 P.2d 1104, 1113-16. 
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related medical conditions.” Id. at 277-79, 971 P.2d at 1112-

14. 

In addition to specifically holding that the policy 

was invalid, the court also evaluated the legitimacy of the 

employer’s articulated reason for the termination: that the 

employee was terminated because she intentionally failed to 

disclose her pregnancy before accepting a job where leave was 

not permitted in the first year. Id. at 278-79, 971 P.2d at 

1113-14. The court in Sam Teague found that the “no leave” 

policy had not been communicated to the employee, nor was she 

informed that the employer’s requested “one-year commitment” 

meant “working twelve consecutive months with no extended 

leave.” Id. at 273, 278-79, 971 P.2d at 1108, 1113-14. The 

court found that the employee “could have reasonably believed 

that a one-year commitment simply meant that she would remain 

employed with the business for at least a term of one year” and 

that the employee intended to return to work after the birth of 

her child. Id. at 279, 971 P.2d at 1114. 

Based on those findings, the court concluded that the 

employer “failed to establish a legitimate nondiscriminatory 

explanation of the adverse employment action.” Id. This 

conclusion is consistent with the principle that the reason 

articulated by an employer is not legitimate when it is not 

related to the ability of the individual to perform the work in 
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question. That is, because the employee in Sam Teague was able 

to perform the job in conformance with the criteria as conveyed 

by the employer, the reason given by the employer – that the 

employee could not work 12 months consecutively – was unrelated 

to the ability of the employee to meet the requirements of the 

position as conveyed to the employee. 

Thus, the review of the cases of our courts addressing 

the second step of the Shoppe-McDonnell framework reflect that 

that the nondiscriminatory reason articulated by the employer 

for the adverse employment action must be related to the ability 

of the individual to perform the work in question. 

2. Reasons provided by CDM were not legitimate 

Paragraph (5)(a) of the Declaration states it was 

Willis’ belief that Adams was not qualified for the job because 

“[Adams] had no sales experience in the prior five years.”23 

Under the Shoppe-McDonnell analysis, we are required to 

determine whether the fact that “[Adams] had no sales experience 

in the prior five years” was a legitimate, nondiscriminatory 

reason for CDM not to have hired Adams. Specifically, the 

analysis must consider whether sales experience in the prior 

 23 Willis stated his “belief” that Adams had no sales experience in 

the prior five years. Adams’ lack of sales experience in the past five years 

was established by Adams’ declaration attached to Adams’ Memorandum in 

Opposition to [CDM’s] Motion for Summary Judgment Filed February 21, 2012 and 

her resume, which was attached as exhibit 10. 
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five years was related to Adams’ ability to perform as a 

telephone sales person at CDM. 

a. CDM disavowed consideration of “sales experience” 

In determining whether “sales experience in the prior 

five years” was related to the ability to perform the duties of 

the position, we note that the ultimate decision-maker in this 

case, Willis, specifically stated in his Declaration that he 

“did not consider any criteria stated in any advertising or 

posting in making [his] decision not to hire [Adams].” 

(Emphasis added). However, “sales experience preferred” was one 

of the listed “requirements” in the online employment 

solicitation published by CDM. Since “sales experience” was a 

“criteria stated in [] advertising,” which Willis expressly 

disavowed as a consideration in his decision not to hire Adams, 

Willis’ proffered reason not to hire Adams because she had no 

sales experience in the prior five years is plainly contradicted 

by his own statement that he did not consider sales experience. 

As “sales experience in the past five years” was 

refuted as a consideration in the hiring decision by CDM’s own 

admission, the criterion was not related to the job in question 

and thus was not a legitimate reason for the adverse employment 

action. Therefore, the Declaration’s articulated criterion of 

“sales experience in the prior five years” did not satisfy CDM’s 
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burden to produce a legitimate, nondiscriminatory reason for its 

hiring decision in this case. 

b. “Sales experience” was not shown to be related to the 

ability to perform the job in question 

Second, even assuming the proffered justification that 

“sales experience in the prior five years” had not been 

disavowed by CDM, this justification was not related to an 

individual’s ability to perform as a telephone sales person 

because it is controverted by the advertised qualifications for 

the job. CDM’s posted solicitation for the position stated 

“Sales experience preferred,” but the solicitation did not 

indicate that sales experience in the last five years was 

required in order to be qualified for the position. 

The justification in the Declaration is also 

contradicted by the employee-training program highlighted in 

CDM’s posted solicitation. CDM’s solicitation stated, “We offer 

recognized training to build upon your formal 

education/experience and teach you the business of advertising 

and summit sales . . . .” “Here are a few key benefits of 

working at CDM Media: . . . First-class Sales Training Program 

from the best in the industry.” Similarly, a newspaper article 

regarding CDM’s employment solicitation stated “[a]ll sales 

hires will go through an eight-week comprehensive training 

course.” 
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“Sales experience in the prior five years” was not 

shown to be related to Adams’ ability to perform the duties of a 

telephone sales person because CDM’s hiring advertisements 

indicated that sales experience was not required to be qualified 

for the position and also promised to provide extensive sales 

training. Thus, the criterion of “sales experience in the prior 

five years” was not a required qualification for the position, 

not a legitimate reason for the adverse employment action, and 

not related to Adams’ ability to perform the job in question. 

Therefore, CDM failed to meet its burden of production in the 

second step of the Shoppe-McDonnell analysis. 

c. “Legitimate” is integral to the Shoppe-McDonnell analysis 

The employer’s burden to articulate a legitimate, 

nondiscriminatory reason is not a burden to prove the truth of 

the legitimate, nondiscriminatory reason. That is, the 

requirement in the second step is that the “explanation” 

articulated be legitimate, Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 

1059, not that the employer prove that the reason was true or 

correct. 

Further, the evaluation of the legitimacy of the 

articulated reason is distinct from an evaluation of the 

credibility of a defendant. The evaluation of the legitimacy of 

a nondiscriminatory reason for an adverse employment action in 

the context of the Shoppe-McDonnell test is only whether the 
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reason is related to the ability of the individual to perform 

the work in question; in contrast, an evaluation of credibility 

looks to whether the reason was believed or is worthy of 

credence. Thus, the evaluation of legitimacy does not transform 

the burden to produce a legitimate reason into a burden to prove 

that reason.24

However, the minority would go further, essentially 

reading “legitimate” out of the Shoppe-McDonnell test. See 

minority at 16-18. The minority would hold that “an employer’s 

proffered reason must be taken as true.” Id. at 18, 19 

(emphasis added); see also id. at 31 (“[W]e must assume that the 

proffered evidence is true.”). Under the minority’s analysis, 

no analysis of the legitimacy of the reason is permissible; a 

court is required to accept any nondiscriminatory reason and one 

completely unrelated to the qualifications of the individual to 

perform the job. Respectfully, the authority cited for this 

proposition, Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993), 

and Shoppe, 94 Hawaiʻi at 378, does not mandate unexamined 

acceptance of any nondiscriminatory reason. 

Hicks states that in the second step of the McDonnell 

Douglas analysis, the employer must “introduce evidence which, 

 24 Thus, the contention of the minority that under this decision the 

“burden shifts to the employer-defendant to prove that the reasons for its 

decision,” minority at 33, is incorrect. 
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taken as true, would permit the conclusion that there was a 

nondiscriminatory reason for the adverse action.” Hicks, 509 

U.S. at 509 (emphasis in original). Some examination by the 

court is implied by the directive that the evidence presented 

must be sufficient to “permit the conclusion.” See also Texas 

Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255 (1981) 

(holding that the “explanation provided must be legally 

sufficient to justify a judgment for the defendant” and noting 

that the “sufficiency of the defendant’s evidence should be 

evaluated” (emphasis added)).25 Similarly, Shoppe states, “The 

 25 The remaining cases cited by the minority do not reduce the 

requirement that the legitimate, nondiscriminatory reason “must be legally 

sufficient to justify a judgment for the defendant.” Burdine, 450 U.S. at 

255 (emphasis added); see Woodson v. Scott Paper Co., 109 F.3d 913, 920 n.2 

(3d Cir. 1997) (The second step “is satisfied if the defendant articulates 

any legitimate reason for the discharge”); Krenik v. Cnty. of Le Sueur, 47 

F.3d 953, 958 (8th Cir. 1995) (“In the second part . . . the burden shifts to 

the defendant who must . . . produc[e] evidence, ‘that the plaintiff was 

rejected . . . for a legitimate, nondiscriminatory reason.’”). Trans World 

Airlines, Inc. v. Thurston, 469 U.S. 111 (1985), minority at 28, did not 

substantively discuss legitimacy because it did not apply McDonnell Douglas. 

The “test is inapplicable where the plaintiff presents direct evidence of 

discrimination. . . . In this case, there is direct evidence.” Id. at 121; 

see also Wright v. Southland Corp., 187 F.3d 1287, 1305 (11th Cir. 1999) 

(same) (cited by minority at 30). 

A review of the cases cited by the minority in support of its 

argument that an employer’s action may be based on an objectively false but 

honestly held belief do not refute the conclusion that the reason articulated 

still must be legitimate because legitimacy was not at issue in those cases. 

Minority at 35-37; see Sybrandt v. Home Depot, U.S.A., Inc., 560 F.3d 553, 

558 (6th Cir. 2009) (plaintiff stipulated that the employer “articulated a 

facially legitimate, nondiscriminatory reason for terminating her 

employment”); Flores v. Preferred Technical Grp., 182 F.3d 512, 515 (7th Cir. 

1999) (articulated reason was insubordination and “[i]nsubordination is a 

legitimate, nondiscriminatory reason for firing an employee”). In other 

cases cited by the minority, the second prong of the McDonnell Douglas test 

was not substantively examined but the articulated reasons were manifestly 

legitimate. See Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1062-63 

(9th Cir. 2002) (articulated reason was that employee violated company 

procedures and was dishonest during the ensuing investigation); Tesh v. U.S. 

(continued. . .) 
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employer’s explanation must be in the form of admissible 

evidence and must clearly set forth reasons that, if believed by 

the trier of fact, would support a finding that unlawful 

discrimination was not the cause of the challenged employment 

action.” Shoppe, 94 Hawaiʻi at 378, 14 P.3d at 1059 (emphasis 

added). Thus, Shoppe, too, indicates that the nondiscriminatory 

reason must be evaluated for legitimacy. 

The Shoppe decision undertook just such an analysis: 

Under these circumstances, there does not appear to be a 

genuine issue of fact regarding Plaintiff’s failure to 

perform the duties of store manager satisfactorily. 

Therefore, Defendants have articulated legitimate, 

nondiscriminatory reasons for the adverse employment action 

against Plaintiff. 

Shoppe, 94 Hawaiʻi at 381, 14 P.3d at 1062 (emphasis added); see 

also Sam Teague, 89 Hawaiʻi at 279, 971 P.2d at 1114 (“Therefore, 

[employer] has failed to establish a legitimate 

nondiscriminatory explanation of the adverse employment 

action.”). Thus, our examination of legitimacy is consistent 

with this court’s prior holdings. 

The minority’s analysis is inconsistent with these 

prior decisions. Our case law has not provided any decision in 

which a reason unrelated to the ability of the person to perform 

 (. . .continued) 

Postal Serv., 349 F.3d 1270, 1272 (10th Cir. 2003) (articulated reason for 

termination was that “an investigation revealed that [employee] was dishonest 

in pursuing [a] workers’ compensation claim”); Majewski v. Automatic Data 

Processing, Inc., 274 F.3d 1106, 1116 (6th Cir. 2001) (articulated reason was 

the employee’s “increasingly poor job performance”). 
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the job has been accepted as satisfying the second step of the 

Shoppe-McDonnell analysis. The minority’s reasoning would 

impose new constraints on our law by unreasonably restricting 

the power of a court to evaluate the legitimacy of a defendant’s 

articulated reason. Thus, the analysis of the minority is 

contrary to Hawaiʻi law that the hiring or discharge decision of 

an individual protected under HRS § 378-2 shall be related to 

the ability of the person to perform the work in question. 

The minority maintains that the McDonnell Douglas test 

represents a “universally accepted framework.” Minority at 31. 

However, McDonnell Douglas has been the subject of significant 

academic criticism.26 It has been objected to by prominent state 

jurists for its lack of clarity and effect of undermining its 

own purpose and provoked a line of criticism over its use in the 

summary judgment context. In Trott v. H.D. Goodall Hosp., 66 

A.3d 7 (Me. 2013), Justice Silver wrote separately to reaffirm 

his position that the Maine Supreme Court “should not apply the 

three-step, burden-shifting [McDonnell Douglas] analysis . . . 

 26 See, e.g., Sandra F. Sperino, Beyond McDonnell Douglas, 34 

Berkeley J. Emp. & Lab. L. 257 (2013); William R. Corbett, Fixing Employment 

Discrimination Law, 62 SMU L. Rev. 81 (2009); Martin J. Katz, Unifying 

Disparate Treatment (Really), 59 Hastings L.J. 643 (2008); Jamie Darin 

Prenkert, The Role of Second-Order Uniformity in Disparate Treatment Law: 

McDonnell Douglas’s Longevity and the Mixed-Motives Mess, 45 Am. Bus. L.J. 

511, 512-15 (2008); Michael J. Zimmer, The New Discrimination Law: Price 

Waterhouse Is Dead, Whither McDonnell Douglas?, 53 Emory L.J. 1887, 1930 

(2004); Michael Evan Gold, Towards a Unified Theory of the Law of Employment 

Discrimination, 22 Berkeley J. Emp. & Lab. L. 175 (2001). 
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to discrimination claims at the summary judgment stage” because 

“it unnecessarily complicates the courts’ already difficult 

task.” Id. at 16 (Silver, J., concurring). “This rigid and 

artificial . . . analysis confuses rather than clarifies the 

ultimate issue in employment discrimination cases: whether there 

is evidence of discrimination.” Id. (internal quotation marks 

omitted); see Curlee v. Kootenai Cnty. Fire & Rescue, 224 P.3d 

458, 463 (Idaho 2008) (concluding that while the burden-shifting 

analysis is applicable at trial, it should not be applied at 

summary judgment); Heng v. Rotech Med. Corp., 688 N.W.2d 389, 

401 (N.D. 2004) (stating that McDonnell Douglas has “little or 

no application at the summary judgment stage”). 

Federal jurists, too, have raised similar concerns. 

Judge Magnuson of the Eighth Circuit expressed in Griffith v. 

City of Des Moines, 387 F.3d 733 (8th Cir. 2004), that “[a]bsent 

from [McDonnell Douglas] was any justification or authority for 

this scheme” and observed that McDonnell Douglas has “confused 

courts across the nation.” Id. at 740 (Magnuson, J., concurring 

specially). “[C]ourts have failed to thoroughly examine the 

language of the statute and congressional intent, and instead 

have fought to keep an arbitrary paradigm alive.” Id. at 747 

(emphasis added). Judge Wood of the Seventh Circuit Court of 

Appeals called “attention to the snarls and knots” of the 

McDonnell Douglas test, referring to it as an “allemande worthy 
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of the 16th century.”27 Coleman v. Donahoe, 667 F.3d 835, 863 

(7th Cir. 2012) (Wood, J., concurring). “The original McDonnell 

Douglas decision was designed to clarify and to simplify the 

plaintiff’s task . . . unfortunately, both of those goals have 

gone by the wayside.” Id. Judge Hartz of the Tenth Circuit 

Court of Appeals stated, “The use of the McDonnell Douglas 

framework [] readily lends itself to consideration of 

formalities instead of the essence of the issue at hand.” Wells 

v. Colo. Dep’t of Transp., 325 F.3d 1205, 1225 (10th Cir. 2003) 

(Hartz, J., concurring). Judge Tymkovich, also of the Tenth 

Circuit Court of Appeals, stated adoption of the McDonnell 

Douglas framework “has left the entire area of law confused” and 

that the McDonnell Douglas “inquiry distracts the court from 

what it should be focusing its attention on: determining whether 

the plaintiff produced sufficient evidence of discrimination.” 28 

 27 An “allemande” is a dance form associated with Baroque music 

originating in Europe in the sixteenth century, often involving lines of 

couples dancing with interlocked arms. Allemande, Wikipedia (Feb. 15, 2015, 

2:28 PM), http://en.wikipedia.org/wiki/Allemande. 

28 The Supreme Court has moved away from a burden-shifting framework 

in certain types of discrimination cases. In Price Waterhouse v. Hopkins, 

490 U.S. 228 (1989), the Court stated that Burdine is inapplicable to prove 

sex discrimination when the employer’s motive was a mixture of legitimate and 

illegitimate reasons. Id. at 246-47 (plurality opinion); see also Desert 

Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (holding that a plaintiff in a 

mixed motive case is required to prove his or her case by a preponderance of 

the evidence, using direct or circumstantial evidence). Similarly, in Gross 

v. FBL Financial Services, Inc., 557 U.S. 167 (2009), when the Court declined 

to apply McDonnell Douglas in a mixed-motive, age discrimination complaint 

brought under federal law, instead holding that a “plaintiff must prove by a 

preponderance of the evidence . . . that age was the ‘but-for’ cause of the 

challenged employer decision.” Id. at 177-78. 
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The Honorable Timothy M. Tymkovich, The Problem with Pretext, 85 

Denv. U. L. Rev. 503, 505, 522 (2008). 

The McDonnell Douglas framework, (or, in Hawaiʻi, the 

Shoppe-McDonnell test), is an analysis adopted by courts to 

apply an anti-discrimination law. The Shoppe-McDonnell test 

does not establish or modify HRS § 378-2, but instead it is a 

court-designed tool to effectuate the statute. Thus, what 

constitutes as a legitimate, nondiscriminatory reason under HRS 

§ 378-2 ultimately must be discerned by an examination of the 

statute, its legislative history, and other principles of 

statutory construction. See Griffith, 387 F.3d at 747 

(Magnuson, J., concurring specially). The relevance of the 

manner in which other courts may have interpreted the McDonnell 

Douglas framework is limited to the extent that the analyses of 

these courts were not designed to give effect to HRS § 378-2 and 

did not take into account the purpose and protections afforded 

by the Hawaiʻi legislature, which has specifically informed our 

analysis. 

The minority’s effective elimination of “legitimate” 

from the Shoppe-McDonnell analysis would place Hawaiʻi employees 

eligible for protection because of race, sex, sexual 

orientation, age, religion, color, ancestry, disability, marital 

status, or status as a victim of domestic or sexual violence at 

a significant disadvantage. Under the minority’s analysis, the 
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employer could posit any nondiscriminatory reason in order to 

rebut the plaintiff’s prima facie case, contrary to Hawaiʻi law, 

the intent of the legislature, and the prior holdings of this 

court, all in defense of a test that, as one jurist phrased it, 

“readily lends itself to consideration of formalities instead of 

the essence of the issue at hand.”29

d. Hypotheticals posed by the minority are insubstantial 

The minority posits a series of strained hypotheticals 

that it argues would result from a court’s examination of 

“legitimate;” however, each lacks substance and is readily 

answerable. 

The minority first suggests that “whenever the number 

of equally qualified applicants exceeds the number of positions, 

those qualified applicants not hired could have a cause of 

action” because “the only legitimate hiring consideration is 

whether the person is qualified.” Minority at 37. However, it 

is clear that the purpose of HRS Chapter 378 is not to prohibit 

 29 The requirement that the job selection criteria be related to the 

job in question already operates in Title VII of the Civil Rights Act of 1965 

prohibiting discrimination in hiring practices based on race, color, 

religion, sex, and national origin. That law “proscribes not only overt 

discrimination but also practices that are fair in form, but discriminatory 

in operation.” Griggs v. Duke Power Co., 401 U.S. 424, 431 (1971). “The 

touchstone is business necessity.” Id. (emphasis added). Thus, “[i]f an 

employment practice which operates to exclude [a racial category] cannot be 

shown to be related to job performance, the practice is prohibited.” Id. 

(emphasis added). There is no indication that Title VII of the Civil Rights 

Act of 1965 has resulted in a flood of spurious claims against employers 

based upon the hypothetical scenarios envisioned by the minority, and thus we 

are assured that the application of the law enacted by our legislature will 

not create such consequences. 
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selection among applicants; it is to set forth the acceptable 

criteria for selection upon qualifications related to the 

position offered. HRS § 378-3(3) (“Nothing in this part shall 

be deemed to . . . [p]rohibit or prevent an employer from 

refusing to hire . . . any individual for reasons relating to 

the ability of the individual to perform the work in question . 

. . .”). Thus, an employer may select an employee from a pool 

of applicants to fill a limited number of positions by comparing 

and contrasting job-related qualifications without creating a 

cause of action. 

The minority also suggests that under our definition 

of legitimate, the employer could not take an applicant’s 

“personality” into consideration in its decisions. Minority at 

38. To the contrary, an individual’s personality may be a 

legitimate reason for an adverse employment decision when the 

personality trait is related to the ability to perform the work 

in question. On the other hand, an employee’s burden to show 

discrimination would be insurmountable if an employer could make 

adverse hiring decisions based on personality traits that were 

unrelated to the ability to perform the job.30 

 30 A discriminatory basis for an adverse hiring decision could be 

readily justified by characterizing the reason as based on “personality.” 

Personality embraces a person’s moods, attitudes, opinions, motivations, and 

style of thinking, perceiving, speaking, and acting.” Personality, MerriamWebster, http://www.merriam-webster.com/dictionary/personality (last visited 

December 29, 2014). Thus, if personality was a legitimate reason for an 

(continued. . .) 
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Similarly, the minority suggests that an employer 

could face liability for incorrectly assigning a high score on 

an employment exam to the wrong person. Minority at 38-39. 

However, it would seem probable that such an exam would test 

qualities related to the ability to perform the work in 

question; thus the exam results would be related to the job, 

even if mistakenly applied to the wrong individual.31

3. Undisclosed criteria may weigh against finding of 

legitimate 

Although not necessary to its primary holding based on 

illegal pregnancy discrimination, this court’s decision in Sam 

Teague focused in part on the employer’s failure to inform the 

employee of the “no leave” policy or the meaning of the one-year 

commitment. 89 Hawaiʻi at 273, 279, 971 P.2d at 1108, 1114. The 

ruling in Sam Teague that failing to communicate the existence 

of a job criterion is a factor that weighs against an employer’s 

use of that criterion as a legitimate nondiscriminatory reason 

for an adverse employment action is consistent with HRS Chapter 

 (. . .continued) 

adverse action even when unrelated to the position, an employer could decline 

to hire a person on the grounds of mannerisms or style that may be culturally 

based. 

31 The minority appears to also assert that test results are hearsay 

and are thus precluded from providing a legitimate, nondiscriminatory reason. 

Minority at 35. To clarify, an in-court statement based on personal 

knowledge of test results is not hearsay. In contrast, if a statement in a 

declaration relies upon information provided by another person, as in this 

case, it is not based on personal knowledge and is inadmissible as hearsay, 

barring an exception to the hearsay rule. See infra, section III.C.5. 
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378’s purpose of ensuring that employment decisions are made 

based on “factors [that] are applied equally to all applicants.” 

1963 Senate Journal at 866. 

If an employer discloses the criteria that the 

employer actually uses to evaluate candidates, it is more likely 

that the employer is applying these criteria to all applicants. 

Conversely, “informal, secretive and subjective hiring or 

promotion decision processes tend to facilitate the 

consideration of impermissible criteria.” Roberts v. Gadsden 

Mem’l Hosp., 835 F.2d 793, 798 (11th Cir. 1988). 

Unpublicized or undisclosed criteria are not likely to 

be established occupational qualifications, nor can it be 

assumed that they are applied equally to all persons. See Rowe 

v. Gen. Motors Corp., 457 F.2d 348, 359 (5th Cir. 1972) 

(recognizing mechanisms for employment discrimination that 

involved promotion/transfer criteria “which can be covertly 

concealed”); Porter v. Milliken & Michaels, Inc., No. CIV. A. 

99-0199, 2001 WL 1315435 (E.D. La. June 28, 2001) (noting that 

“[c]ourts have found that informal, secretive and subjective 

hiring or promotion decision processes tend to facilitate the 

consideration of impermissible criteria”). Therefore, 

undisclosed criteria measuring a person’s ability to perform the 

work in question are less likely to form the basis of legitimate 

and nondiscriminatory reasons for adverse employment actions. 
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Here, “sales experience in the prior five years” was 

not publicized or disclosed as a hiring criterion in any 

materials in the record other than in Willis’ Declaration. CDM 

presented no evidence that the requirement of “sales experience 

in the prior five years” was applied or disclosed to any other 

applicant.32 Thus, the criterion of “sales experience in the 

prior five years” may have been an informal and undisclosed 

hiring criterion applied only to Adams.33 Second, Willis’ 

Declaration expressly states that he did not use “any criteria 

stated in any advertising or posting in making my decision not 

to hire [Adams].” However, the Declaration does not indicate 

whether this was also true for other applicants. Therefore, it 

is not clear if the hiring criteria used to evaluate applicants 

were publicized or disclosed to any person applying for the 

position. CDM’s rejection of its own publicized hiring criteria 

may also indicate that an informal, undisclosed, and 

individualized hiring criterion was applied to Adams. 

Consequently, the undisclosed hiring criterion relied upon by 

CDM to conclude that Adams was unqualified for the position, 

 32 CDM also did not present evidence that sales experience in the 

past five years was a usual or customary hiring requirement for the 

particular position at issue, for any other position at CDM, or for the 

industry in general. 

33 CDM’s disqualifying criteria - lack of sales experience in the 

past five years - correlates exactly with Adams’ actual recent lack of sales 

experience and may also indicate that an individualized criterion was applied 

to Adams. 
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which may or may not have been applied to any other applicant, 

also weighs against a finding that the proffered reason was a 

legitimate, nondiscriminatory reason for the adverse employment 

action against Adams. 

4. Additional reasons provided by CDM are inadmissible hearsay 

Willis also set forth three additional reasons for not 

hiring Adams, which can be considered collectively. The Willis 

Declaration states: 

5. It was my belief that the Plaintiff was not qualified 

for the job because: 

. . . 

b. As far as I understood, most of her recent 

(previous 10-15 years) sales experience was in 

publishing and/or selling phone book 

advertising which incorporated outside sales 

and face to face communication; 

c. As far as I understood, she had little or no 

sales experience that involved selling to CLevel corporate executives of Fortune 1,000 

companies; and 

d. I was advised that she had said that she 

disliked tedious work. 

(Emphases added). 

Affidavits submitted by parties in support of a motion 

for summary judgment “shall be made on personal knowledge, shall 

set forth such facts as would be admissible in evidence, and 

shall show affirmatively that the affiant is competent to 

testify to the matters stated therein.” HRCP Rule 56(e) (2000) 

(emphasis added). “It is axiomatic that a motion for summary 

judgment should be decided on the basis of admissible evidence.” 
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Munoz v. Yuen, 66 Haw. 603, 605, 670 P.2d 825, 826 (1983) (per 

curium). 

Thus, “[t]he rule in Hawaiʻi is that an affidavit 

consisting of inadmissible hearsay cannot serve as a basis for 

awarding or denying summary judgment.” Hawaii Cmty. Fed. Credit 

Union v. Keka, 94 Hawaiʻi 213, 221, 11 P.3d 1, 9 (2000) 

(alterations omitted) (internal quotation marks omitted) 

(quoting GE Capital Hawaii, Inc. v. Miguel, 92 Hawaiʻi 236, 242, 

990 P.2d 134, 140 (App. 1999)); see also HRE Rule 801 (2002); 

HRE Rule 802 (1980); Fuller v. Pac. Med. Collections, Inc., 78 

Hawaiʻi 213, 224, 891 P.2d 300, 311 (App. 1995) (“[HRCP Rule 

56(e)] requires that facts set forth in the affidavits be 

admissible in evidence. . . . These requirements are 

mandatory.”). “A witness may not testify to a matter unless 

evidence is introduced sufficient to support a finding that the 

witness has personal knowledge of the matter.” HRE Rule 602 

(1992); see also Miller v. Manuel, 9 Haw. App. 56, 66, 828 P.2d 

286, 292 (1991) (“Affidavits in support of a summary judgment 

motion are scrutinized to determine whether the facts they aver 

are admissible at trial and are made on the personal knowledge 

of the affiant.”). Personal knowledge means “the witness 

perceived the event about which [the witness] testifies and [] 

has a present recollection of that perception.” HRE Rule 602 

Commentary. 
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Therefore, an affidavit from an employer supporting a 

motion for summary judgment must be based on personal knowledge 

of the matter, i.e., admissible evidence. “The employer’s 

explanation must be in the form of admissible evidence and must 

clearly set forth reasons that, if believed by the trier of 

fact, would support a finding that unlawful discrimination was 

not the cause of the challenged employment action.” Shoppe, 94 

Hawaiʻi at 378, 14 P.3d at 1059 (emphasis added). 

Correlatively, inadmissible evidence or hearsay cannot 

support an affidavit in a motion for summary judgment that 

purports to show a legitimate, nondiscriminatory reason for an 

adverse employment action in a discrimination-based claim 

applying the three-part Shoppe-McDonnell analysis.34 Takaki v. 

Allied Mach. Corp., 87 Hawaiʻi 57, 69, 951 P.2d 507, 519 (App. 

1998) (stating, in the context of discrimination claims based on 

race and work injury, “a motion for summary judgment may be 

decided only on the basis of admissible evidence”); see also 

Lales v. Wholesale Motors Co., 133 Hawaiʻi 332, 361-62, 328 P.3d 

 34 Allowing the decision-maker to rely on asserted third-party 

knowledge would shield the employer from discriminatory acts of anyone 

surrounding the ultimate decision-maker, even if those actions were designed 

and intended to result in an adverse employment action. See Staub v. Proctor 

Hosp., 131 S. Ct. 1186, 1189, 1193 (2011) (finding that, under a “cat’s paw” 

theory, an employer was not shielded from the discriminatory actions of an 

employee’s supervisors — even if they were not the ultimate personnel 

decision-makers — if the ultimate decision-maker made a decision based on 

negative reports by the discriminatory supervisors that were put in the 

employee’s personnel file specifically with the intent of getting the 

employee fired). 
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341, 370-71 (2014) (discussing how, in the context of the third 

step of the Shoppe-McDonnell analysis of discrimination claims 

based on retaliatory discharge under HRS § 378-2(2), evidence 

must be admissible in order to be relied upon in a HRCP Rule 

56(e) motion for summary judgment). 

If a legitimate, nondiscriminatory reason could be 

shown by evidence not based on personal knowledge and the 

plaintiff was unable to demonstrate pretext in the third step of 

the Shoppe-McDonnell test, the consequence would be that a 

motion for summary judgment would be granted based on 

inadmissible evidence, contrary to the fundamental law of this 

jurisdiction. See HRCP Rule 56(e) (“Supporting and opposing 

affidavits [in a motion for summary judgment] . . . shall set 

forth such facts as would be admissible in evidence . . . .”); 

Fuller, 78 Hawaiʻi at 224, 891 P.2d at 311 (“[T]he circuit courts 

should ascertain whether a foundation has been established for 

the admissibility of evidence offered in support of the motion 

before an order granting summary judgment is filed.”); Munoz, 66 

Haw. at 605, 670 P.2d at 826; Keka, 94 Hawaiʻi at 221, 11 P.3d at 

9; Miller, 9 Haw. App. at 66, 828 P.2d at 292. Thus, the 

principle that evidence supporting a motion for summary judgment 

must be admissible applies in a motion for summary judgment upon 

a discrimination-based claim as it does in any other motion for 

summary judgment. 
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In the Willis declaration, subparagraphs (b) and (c) 

begin with the following: “[a]s far as I understood,” which 

indicates that the basis for the information is from an 

unidentified third person or external source. Likewise, 

subparagraph (d) states: “I was advised,” again indicating that 

the source of the information is an unidentified third party. 

The reasons stated in subparagraphs (b), (c), and (d) of Willis’ 

Declaration do not demonstrate that they are based on Willis’ 

personal knowledge because the bases for the information are 

unidentified third persons or external sources. Therefore, the 

proffered reasons in subparagraphs (b), (c), and (d) are not 

admissible statements and, accordingly, do not articulate 

legitimate, nondiscriminatory reasons for the adverse employment 

action against Adams. 

Further, the facts of the case belie that Willis’ 

statements were based on “personal knowledge,” as asserted by 

the minority. Minority at 34-35. A mere recitation that the 

witness “understood” or was “advised” of a fact is insufficient, 

in itself, to establish that the witness perceived the facts for 

which testimony is offered, i.e. that the testimony is based on 

personal knowledge. See Addison M. Bowman, Hawaiʻi Rules of 

Evidence Manual § 602-1[3] (2014-15 ed.) (finding testimony of a 

person on Oʻahu regarding weather on the Big Island is 

objectionable on lack of personal knowledge grounds); State v. 
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Apollonio, 130 Hawaiʻi 353, 362, 311 P.3d 676, 685 (2013) 

(striking testimony of a witness where nothing in evidence would 

support a finding that the witness had personal knowledge of the 

fact at issue). 

Here, it is uncontroverted that Willis never met 

Adams; Adams’ only interview was with Bera, CDM’s Human 

Resources Director.35 According to CDM’s established hiring 

procedure, Bera “host[ed] the first round of interviews and 

review[ed] all candidates that came in for [an] interview and 

narrow[ed] down the list of potential candidates to meet with 

[Willis].” (Emphasis added). Thus, based on established hiring 

procedures and the fact that Adams only met with Bera, Willis’ 

two statements indicating “as far as I understood” and the 

statement “I was advised” are clearly not based on Willis’ 

personal knowledge. Further, it would appear that Bera had 

significant input in the decision not to hire Adams, if he did 

not make the decision outright. 

Additionally, Willis’ Declaration states in paragraph 

six that CDM did not hire any younger applicants with equal or 

lower qualifications for the position. Although not 

specifically stated as a reason for Adams not being qualified 

for the position, paragraph six is entirely conclusory, and no 

 35 The record does not contain a declaration from Bera. 
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admissible evidence was adduced to establish this “fact.”36 

“Ultimate or conclusory facts or conclusions of law are not to 

be utilized in a summary judgment affidavit.” Miller, 9 Haw. 

App. at 66, 828 P.2d at 292. Accordingly, Willis’ statement 

that no younger, equally or less qualified applicants were hired 

cannot form the basis of a legitimate reason not to hire Adams. 

The minority acknowledges that “[a]n employer 

satisfies this second step through admissible evidence of the 

employer’s reason for its decision.” Minority at 18 (emphasis 

added). The minority does not assert that Willis had any 

interaction with Adams or contest that Willis must have obtained 

the information contained in subparagraphs (b), (c), and (d) of 

his Declaration from some other source. According to the 

minority, these subparagraphs “were offered for the limited nonhearsay purpose of articulating a reason why he made the 

decision not to hire Adams.” Id. at 34-35. Thus, as the 

minority contends that subparagraphs (b), (c), and (d) of the 

Willis Declaration are admissible non-hearsay, the minority is 

asserting that the statements in Willis’ Declaration were not 

offered for the truth of the reasons contained within those 

 36 That is, there was no admissible evidence as to any actual sales 

experience of the hired applicants, or whether any such experience occurred 

within the past five years. 
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statements but only to demonstrate that Willis had reasons for 

his decision. 

However, the minority also insists the reasons 

proffered by the employer “must be taken as true,” minority at 

18-19, without evaluation of the substance of those reasons. 

See, e.g., id. at 32 (“[W]e must assume that the proffered 

evidence is true.”). If the reasons proffered by a defendantemployer must be taken as true, then the argument of the 

minority that the employer’s reasons are not offered for their 

truth, is logically precluded. 

Additionally, if the proffered reasons are not offered 

for their truth and only offered to demonstrate that the 

employer had a legitimate reason, then a plaintiff could never 

prove pretext in the third step of the Shoppe-McDonnell test. 

That is, if the proffered reason is not offered for its truth, 

then it could not be shown as a pretext for discrimination 

because it was not offered as a true reason for the defendantemployer’s action. 

It is manifest that the reasons of the employer are 

proffered for their truth, as it is unassailable that a court 

would not accept as a legitimate, nondiscriminatory reason the 

bare statement by an employer that an individual was not hired 

because of an unspecified reason. Rather, an employer’s 

statement could only provide a legitimate, nondiscriminatory 
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reason to the court if the employer identifies and provides the 

basis for that reason. Here, the substantive reasons proffered 

were that Adams’ previous sales experience was in outside sales, 

Adams had little to no experience selling to C-level corporate 

executives, and Adams had said she disliked tedious work. These 

statements were offered upon a central disputed issue in the 

summary judgment proceeding for application in the second prong 

of the Shoppe-McDonnell test and were intended by the employer 

to be duly considered by the trial court as CDM’s articulation 

of its legitimate, nondiscriminatory reasons for not hiring 

Adams.37 Consequently, in compliance with our law of summary 

judgment, Willis was required to have personal knowledge of the 

matters asserted in his statements in order to satisfy the 

burden of production imposed on CDM. 

The minority further indicates that Willis’ 

Declaration was admissible “even if the . . . reasoning is based 

on third-party information.” Id. at 35 (emphasis added). 

However, there is no alternate standard by which evidence is 

admitted under the Shoppe-McDonnell test. If the statement of a 

 37 In applying the second step of the Shoppe-McDonnell analysis, 

the trial court was not required to ascertain whether Adams’ previous sales 

experience was actually in outside sales, whether Adams had little to no 

experience selling to C-level corporate executives, or whether Adams had said 

she disliked tedious work; instead, assuming those reasons were provided in 

admissible form, the trial court only needed to consider whether the 

defendant-employer satisfied its burden of production to show that the 

reasons provided were both non-discriminatory and related to Adams’ ability 

to perform the work in question. 
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party is offered to prove the truth of the matter asserted, the 

report from a party not present in the court — i.e. “third-party 

information” — remains inadmissible. HRE Rules 801, 802. The 

undisputed facts are that Willis had no interaction with Adams. 

As Willis could only have gained the information in his 

declaration from Bera, his declaration is based on third-party 

information; it is thus hearsay and is inadmissible.38 HRE Rule 

802. 

The minority does not contend that Willis’ statements 

would be admissible at trial. If Willis were to testify at a 

trial, he could only testify that he had acted based on 

 38 The cases cited by the minority do not reduce the requirement 

that the evidence submitted must be admissible. See minority at 35 (citing 

Rivera v. City & Cnty. of Denver, 365 F.3d 912 (10th Cir. 2004)); McDonaldCuba v. Santa Fe Protective Servs., Inc., 644 F.3d 1096 (10th Cir. 2011)). 

In both cases, the second step of the McDonnell Douglas test was not in 

dispute; thus in neither case did the court examine the admissibility of the 

evidence supporting the legitimate, nondiscriminatory reason. Rivera, 365 

F.3d at 920 (“[W]e address only the issue of pretext.”); McDonald-Cuba, 644 

F.3d at 1102 (analyzing only the pretext issue). 

Furthermore, in neither case was the personal knowledge of the 

defendant regarding the relevant information disputed. In Rivera, a city 

worker was disciplined for falsifying a work report. The minority seizes on 

the fact that the supervisor “was informed” of certain information; however, 

the information of which the supervisor “was informed” related to information 

supporting the falsity of the report. Rivera, 365 F.3d at 918. The 

supervisor based his actual decision on “all of the information before him,” 

consisting of six specific reasons, including the supervisor’s own 

calculations. Id. at 919. 

Similarly, in McDonald-Cuba, the plaintiff-employee formed a 

company that she registered on the Central Contracting Registry (CCR), a 

database for government contractors, where it was identified as performing 

security guard services. McDonald-Cuba, 644 F.3d at 1099. The employer 

company president “discovered the CCR printout” and determined there was a 

“huge conflict of interest” from plaintiff’s competing business and promptly 

terminated the employee. McDonald-Cuba, 644 F.3d at 1099, 1103. Nothing in 

McDonald-Cuba suggests the defendant lacked personal knowledge regarding the 

plaintiff’s competing business. 
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information provided to him without describing the substance of 

that information. The information itself would be admissible 

only through another witness with personal knowledge. Thus, the 

contention of the minority that hearsay is admissible for the 

“limited non-hearsay purpose” of articulating a legitimate, 

nondiscriminatory reason for an adverse employment action is 

contrary to HRCP Rule 56(e), which governs summary judgment 

proceedings and unequivocally requires “facts as would be 

admissible in evidence.” HRCP Rule 56(e) (2000) (emphasis 

added). 

Affidavits or testimony pertaining to employment 

discrimination are not exceptions to the rule disallowing 

hearsay. HRE Rule 802. As stated, allowing summary judgment to 

be rendered on evidence that includes inadmissible hearsay is 

contrary to Hawaiʻi law. See Munoz, 66 Haw. at 605, 670 P.2d at 

826; Takaki, 87 Hawaiʻi at 69, 951 P.2d at 519; Lales, 133 

Hawaiʻi at 361-62, 328 P.3d at 370-71. The minority’s analysis, 

therefore, would create an exception with regard to employment 

discrimination claims, allowing summary judgment to be based on 

an affidavit that was premised upon inadmissible hearsay 

statements. This would create a lower standard for evaluating 

employment discrimination claims, contrary to the purpose of the 

law to “protect and safeguard the right and opportunity of all 
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persons to seek . . . employment . . . without discrimination.” 

1963 Senate Journal at 866. 

Weakening the evidentiary standard in this context 

would create an additional layer of confusion to this already 

complicated test and weaken the ability of individuals to avail 

themselves of the protection of our laws; a danger that has been 

previously recognized. See H.D. Goodall Hosp., 66 A.3d at 16 

(Silver, J., concurring) (criticizing the use of the McDonnell 

Douglas test in summary judgment); City of Des Moines, 387 F.3d 

at 740 (Magnuson, J., concurring specially) (same); Coleman, 667 

F.3d at 863 (Wood, J., concurring) (same); Colo. Dep’t of 

Transp., 325 F.3d at 1225 (Hartz, J., concurring) (same); see 

also Tymkovich, The Problem with Pretext, 85 Denv. U. L. Rev. at 

505, 522 (2008). 

5. CDM did not articulate a legitimate, nondiscriminatory 

reason 

In summary, the justification of “no sales experience 

in the prior five years” was not related to Adams’ ability to 

perform as a telephone sales person at CDM because it was 

negated as a hiring criterion by Willis, and it was controverted 

as a required qualification for the position by statements in 

the solicitation. “Sales experience in the prior five years” 

also may have been an undisclosed hiring criterion that may have 

been applied only to Adams. The remaining reasons proffered by 
***FOR PUBLICATION IN WEST’S HAWAIʻI REPORTS AND PACIFIC REPORTER***

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Willis’ Declaration in subparagraphs (b), (c), and (d) were 

inadmissible statements that may not be considered by a court. 

Therefore, we conclude that CDM did not satisfy its burden to 

produce a legitimate, nondiscriminatory reason for declining to 

hire Adams as an International Media Sales Executive.39

IV. Conclusion 

Based on the foregoing reasons, the ICA erred in 

affirming the circuit court’s granting of summary judgment. The 

ICA’s November 21, 2013 Judgment on Appeal and the circuit 

court’s July 24, 2012 Final Judgment are vacated, and this case 

is remanded to the circuit court for further proceedings 

consistent with this opinion. 

Charles H. Brower 

for petitioner 

Diane W. Wong 

for respondent 

/s/ Sabrina S. McKenna 

/s/ Richard W. Pollack 

/s/ Steven S. Alm 

 39 Adams presented a prima facie case of age discrimination and CDM 

failed to satisfy its burden to produce a legitimate, nondiscriminatory 

reason for not hiring Adams. As no legitimate reason was adduced, we need 

not address pretext in the third step of the Shoppe-McDonnell analysis.