Dung v. Shelly Eurocars, LLC

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
28-AUG-2020
07:45 AM

NO. CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS

OF THE STATE OF HAWAI#I

DIXON Q.H. DUNG,
Plaintiff-Appellant,
v.
SHELLY EUROCARS, LLC, DBA BMW OF HONOLULU,
A DOMESTIC LIMITED LIABILITY COMPANY,
Defendant-Appellee,
and
DOE INDIVIDUALS; DOE ENTITIES 1-10; DOE GOVERNMENT ENTITIES 1-10,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NO. 15-1-0126)

SUMMARY DISPOSITION ORDER
(By: Ginoza, Chief Judge, Leonard and Chan, JJ.)

This appeal arises from an alleged violation of the
Hawai#i Whistleblowers' Protection Act (HWPA).
Plaintiff-Appellant Dixon Q.H. Dung (Dung) appeals from the
March 8, 2018 Final Judgment, entered by the Circuit Court of the
First Circuit (circuit court).1 The Final Judgment was entered
pursuant to the order granting summary judgment in favor of
Defendant-Appellee Shelly EuroCars, LLC dba BMW of Honolulu, a
Domestic Limited Liability Company (BMW), entered on the same
day.
Dung argues that the circuit court erred in granting

1
The Honorable Gary W.B. Chang presided.
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summary judgment because it erroneously concluded that: (1) Dung
did not engage in any protected activity that would trigger a
violation of the HWPA; and (2) Dung failed to demonstrate a
causal connection between his complaints to management and his
employment termination.
Upon careful review of the record and the briefs
submitted by the parties and having given due consideration to
the arguments advanced and the issues raised by the parties, we
resolve this appeal as follows and affirm.
We review a circuit court's grant of summary judgment
de novo using the same standard applied by the circuit court.
Nozawa v. Operating Engineers Local Union No. 3, 142 Hawai#i 331,
338, 418 P.3d 1187, 1194 (2018).
Under HRS § 378-62 (2015), the HWPA provides:
An employer shall not discharge, threaten, or otherwise
discriminate against an employee regarding the employee's
compensation, terms, conditions, location, or privileges of
employment because:

(1) The employee, or a person acting on behalf of the
employee, reports or is about to report to the employer, or
reports or is about to report to a public body, verbally or
in writing, a violation or a suspected violation of:

(A) A law, rule, ordinance, or regulation, adopted
pursuant to law of this State, a political
subdivision of this State, or the United States;
or

(B) A contract executed by the State, a political
subdivision of the State, or the United States,

unless the employee knows that the report is false; or

(2) An employee is requested by a public body to
participate in an investigation, hearing, or inquiry held by
that public body, or a court action.

To prevail on an HWPA claim, an employee must prove the
following elements: (1) the employee engaged in protected conduct
under the HWPA; (2) the employer took an adverse employment
action against the employee; and (3) a causal connection exists
between the employee's protected conduct and the employer's
adverse action (i.e., the employer's action was taken because the
employee engaged in protected conduct; the employee has the

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burden of showing that the protected conduct was a "substantial
or motivating factor" in the employer's decision to take the
employment action). See Crosby v. State Dep't of Budget & Fin.,
76 Hawai#i 332, 341-42, 876 P.2d 1300, 1309-10 (1994). Only the
first and third elements of an HWPA claim are at issue in this
case.
The employer carries the burden of negating causation
only after the employee first demonstrates a prima facie case of
causal connection. Id. at 342, 876 P.2d at 1310. "Once the
employee shows that the employer's disapproval of [the employee's
protected activity] played a role in the employer's action
against him or her, the employer can defend affirmatively by
showing that the termination would have occurred regardless of
the protected activity." Id. (original brackets, internal
quotation marks, and citation omitted). "[I]f the employer
rebuts the prima facie case, the burden reverts to the [employee]
to demonstrate that the [employer's] proffered reasons were
'pretextual.'" Adams v. CDM Media USA, Inc., 135 Hawai#i 1, 14,
346 P.3d 70, 83 (2015) (quoting Shoppe v. Gucci Am., Inc., 94
Hawai#i 368, 379, 14 P.3d 1049, 1060 (2000)) (describing the
similar burden-shifting analysis that Hawai#i courts use when
analyzing a claim of age discrimination that relies on
circumstantial evidence); see also Crosby, 76 Hawai#i at 342, 876
P.2d at 1310 (concluding that the HWPA follows the same burden of
proof used in "traditional labor management relations discharge
cases"). "Although Crosby reviewed a ruling entered after a
jury-waived trial, this court and the United States District
Court for the District of Hawai#i have applied the HWPA burden-
shifting analysis at summary judgment." Dobbs v. Cty. of Maui,
No. CAAP-XX-XXXXXXX, 2019 WL 762407, at *2 (Haw. App. Feb. 20,
2019) (SDO).
Dung was employed by BMW as a shuttle driver until his
employment was terminated on June 6, 2014. Dung's termination
report stated that Dung was terminated because he was sleeping on

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the job on June 3, 2014, in the customer lounge with a television
remote in his hand. Dung, however, filed suit asserting that his
termination was in retaliation for complaints he previously made
to management. The complaint at issue is a January 13, 2014
letter to the office manager, in which Dung related his concerns
that Mark Hironaka (Hironaka), Dung's immediate supervisor,
violated Dung's constitutional right to privacy by making remarks
to other employees regarding a January 9, 2014 meeting that
occurred between Dung, Hironaka, the office manager, and other
managers, regarding an incident with a customer. In the letter,
Dung asserted that after the meeting, Hironaka "blatantly bragged
to [other employees] how he covered and countered everything that
[Dung] said [at the meeting.]" Dung alleged that the complaint
he made in the letter was a substantial or motivating factor in
the decision to terminate him.
As to the first element, Dung argues that his complaint
to management was protected conduct that triggered the HWPA
because he reported a violation of his right to privacy and his
right not to be placed in a false light.
The January 9, 2014 meeting stems from a December 2013
incident involving Dung and an African-American customer he was
supposed to pick up. The customer had expected to be picked up
at his house but Dung asked the customer to instead walk to a
different location where Dung was already waiting. Dung
eventually picked up the customer and returned to the store.
After dropping the customer off at the store, Hironaka approached
Dung and made a statement to the effect of "you have to watch out
what you say" and the customer "might go and see [the president
of the company.]" Dung interpreted Hironaka's comments to mean
that Dung had made a remark to the customer that offended him and
that if the customer was not happy with his ride, he could make a
complaint to the president of the company. Dung wrote a letter
to the office manager, expressing his concern that Hironaka was
accusing him of making racially insensitive remarks or engaging

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in discriminatory conduct. The office manager then scheduled the
January 9, 2014 meeting to discuss the matter.
According to the office manager, the purpose of the
January 9, 2014 meeting was to discuss the December 2013 incident
with the customer:
I recall that it started because [Hironaka] made a remark to
[Dung] about [the customer] being black, and [Dung], he
didn't want [the customer] to explain to [the president of
the company]. And so because he said that, [Dung] was
concerned about that and made a complaint. He wanted to
know why [Hironaka] made that statement, so that was what
the meeting was about.

Dung similarly believed that the purpose of the January 9, 2014
meeting was to "clear the air regarding the [December 2013
conversation with Hironaka] . . . as far as what had happened
with [the customer's] pickup[.]" Dung stated that there was no
agreement during the meeting that the discussions were to be kept
confidential, but he thought it was a private meeting because it
pertained to personnel issues.
Dung was later informed by another employee that, after
the meeting, Hironaka had discussed with two other employees what
occurred at the meeting and "bragged" about countering everything
Dung said. Dung then wrote the January 13, 2014 letter to the
office manager asserting that Hironaka had violated Dung's right
to privacy and defamed him.
Dung concedes that "defamation is a wholly separate
common law tort that has no constitutional basis." However, Dung
argues that his January 13, 2014 letter was a report of a
violation of his right not to be placed in a false light, which
has its basis in the constitutional right to privacy.
The constitutional right to privacy is recognized under
article I, section 6 of the Hawai#i State Constitution. Haw.
Const. art. 1, § 6 ("The right of the people to privacy is
recognized and shall not be infringed without the showing of a
compelling state interest."). The privacy right in article I,
section 6 "concerns the possible abuses in the use of highly
personal and intimate information in the hands of government or

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private parties[.]" Comm. of the Whole Rep. No. 15, in 1
Proceedings of the Constitutional Convention of Hawaii of 1978,
at 1024 (emphasis added). In discussing the creation of the
right to privacy "as it relates to privacy in the informational
and personal autonomy sense" under article I, section 6, the
standing committee report of the 1978 Constitutional Convention
of Hawai#i stated:
Your Committee believes that the right of privacy
encompasses the common law right of privacy or tort privacy.
This is a recognition that the dissemination of private and
personal matters, be it true, embarrassing or not, can cause
mental pain and distress far greater than bodily injury.
For example, the right can be used to protect an individual
from invasion of his private affairs, public disclosure of
embarrassing facts, and publicity placing the individual in
a false light.

Stand. Comm. Rep. No. 69, in 1 Proceedings of the Constitutional
Convention of Hawaii of 1978, at 674. The supreme court has
recognized a tort claim for false light invasion of privacy,
thereby recognizing "false light" as a type of tort under the
common law right to privacy. Chung v. McCabe Hamilton & Renny
Co., Ltd., 109 Hawai#i 520, 534-35, 128 P.3d 833, 847-48 (2006).
The supreme court cited Restatement (Second) of Torts § 652E
(1997) for the definition of the tort of false light invasion of
privacy as follows:
One who gives publicity to a matter concerning another that
places the other before the public in a false light is
subject to liability to the other for invasion of his
privacy, if

(a) the false light in which the other was placed would be
highly offensive to a reasonable person, and

(b) the actor had knowledge of or acted in reckless
disregard as to the falsity of the publicized matter and the
false light in which the other would be placed.

Chung, 109 Hawai#i at 534 n.18, 128 P.3d at 847 n.18.
Dung stated that he believed the discussions during the
January 9, 2014 meeting were of a private nature. To the
contrary, the record reflects that the meeting discussions simply
revolved around determining the facts of the December 2013
incident. Even if Dung's allegations of Hironaka's bragging were

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true, Hironaka's comments did not place Dung in a false light for
purposes of violating the constitutional right to privacy. There
was no "highly personal [or] intimate information" involved in
the January 9, 2014 meeting itself or in Hironaka's purported
bragging and therefore no violation of Dung's constitutional
right to privacy.
The circuit court therefore correctly concluded that
Hironaka's alleged wrongful conduct did not fall within the
constitutional right of privacy and that Dung's January 13, 2014
letter therefore did not, as a matter of law, constitute a report
of a violation or a suspected violation of state or federal law
sufficient to support a claim under the HWPA.
Even assuming arguendo that Dung engaged in protected
activity under the HWPA, Dung failed to raise genuine issues of
material fact as to whether there was a causal connection between
his alleged protected conduct and the termination of his
employment.
Dung asserts that the temporal proximity between his
complaint letter and his termination would permit a trier of fact
to infer a causal connection between the two. Dung wrote the
letter to the office manager on January 13, 2014, and was
terminated June 6, 2014. The relative temporal proximity of his
termination to his alleged protected conduct may amount to
circumstantial evidence of causation or an inference of such, for
a prima facie case. See Tagupa v. VIPdesk, Inc., 125 F. Supp. 3d
1108, 1122 (D. Haw. 2015) ("Given a relatively short time,
however, between at least some of her protected activity
[(occurring in March and August 2011)] and her termination
[(occurring September 2011)] . . . , questions of material fact
exist as to whether Tagupa's actions were a 'substantial or
motivating factor' in her termination." (citation omitted)); but
see Aoyagi v. Straub Clinic & Hosp., Inc., 140 F. Supp. 3d 1043,
1060 (D. Haw. 2015) ("As an initial matter, courts generally
reject causation for purposes of retaliation claims where the

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alleged adverse action by the employer occurs months or years
after the alleged protected activity." (citing Clark Cty. Sch.
Dist. v. Breeden, 532 U.S. 268, 273-74 (2001) (per curiam)
(stating that where "mere temporal proximity between an
employer's knowledge of a protected activity and an adverse
employment action [is] sufficient evidence of causality . . . the
temporal proximity must be very close," and noting that courts
have rejected causation where there are three- or four-month time
gaps), and Manatt v. Bank of Am., NA, 339 F.3d 792, 802 (9th Cir.
2003) (holding that a nine-month gap between protected activity
and adverse employment action "suggests no causality at all")).
However, aside from the mere fact of relative temporal proximity,
Dung has not shown that his alleged protected conduct was a
"substantial or motivating factor" in BMW's decision to terminate
his employment.
Even if Dung established a prima facie claim based on
temporal proximity, BMW maintains that Dung's termination would
have occurred regardless of his alleged protected activity. In
support of its motion for summary judgment, BMW produced evidence
that on May 9, 2014, Dung received a written warning from Al
Roberts (Roberts), the service manager, stating: "[Dung] was
reported sleeping in the customer lounge. 2nd complaint of this
in 2 weeks. First one was sleeping while a customer was waiting
in lounge for a shuttle. Nightshift. This incident was not
documented prior nor addressed." Dung was instructed not to use
the customer lounge or private offices for breaks and instructed
to instead use break rooms. In the "Employee Statement" portion
of the warning form, Dung checked off the box stating "I agree
with Employer's statement" and handwrote "as stated by customer"
next to the checked statement. Dung did not deny that he was
sleeping. Dung signed and dated the form to indicate that he
read and understood the warning.
Despite the May 9, 2014 warning, Roberts was informed
that Dung was again observed to have been sleeping on the job on

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June 3, 2014. This incident resulted in his termination on
June 6, 2014. In his deposition, Roberts testified that he did
not recall the employee that first notified him of this incident
and explained: "I was walking in front of the parts department,
. . . and there were many people approaching me on it, right. I
thought the person was our in-house janitor, that's who I recall
made the first comment, so that's what I thought and that's what
I documented." Roberts further stated: "[P]eople came to me,
service advisers, talking about a customer, that was sitting next
to [Dung] or in the area with him, that was upset because he was
waiting for a shuttle." Roberts testified that he terminated
Dung's employment "[f]or sleeping in [the] customer area,
disrupting customer service. After I talked to him about it, I
expect people to pay attention and he didn't pay attention[.]"
Dung recounted his termination meeting as follows:
[A] . . . And as I walked in [to Roberts's office], I
recall him, like, holding a piece of paper in the air and
shaking it and he says I'm sorry, he says, I'm going to have
to let you go. I'm sorry. He said someone else saw you
sleeping again.

. . . .

Q So what did Al Roberts say to you and what did you
say to him?

A Well, he had the form already filled out. And he
told me that like I say, when I first walked in, he says
I'll give you two choices. You either have the right to
resign or I can terminate you. And I said I'm not going to
resign. He said okay, I'm just going to sign the dismissal
form.

Q And did he tell you why you were being terminated?

A Well, like I say, he said in his statement as he
was holding the paper he said someone else saw you sleeping
again. And so that's, I assume, is why he was terminating
me.

(Emphasis added.) Dung agreed that he was in the customer lounge
watching television that evening.
Dung did not offer any evidence that BMW's proffered
reasons for his termination were pretextual. See Adams, 135
Hawai#i at 14, 346 P.3d at 83. Notably, Roberts did not begin

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his employment at the BMW of Honolulu store in this case until
April 1, 2014, months after the January 13, 2014 letter and the
incidents leading up to the letter.2 Roberts testified that the
decision to terminate Dung was entirely his, that he did not
discuss the decision with anybody else in management, and that he
was unaware of Dung's previous complaints. Dung did not put
forth any evidence that Roberts knew about Dung's complaints in
the January 13, 2014 letter, which Dung alleges was protected
conduct under the HWPA.
Having brought forward no evidence of a causal
connection between his alleged protected activity and his
termination or that the proffered reasons for his termination
were pretextual, Dung failed to raise a genuine issue of material
fact regarding his HWPA claim. The circuit court therefore did
not err in concluding that BMW was entitled to summary judgment
as a matter of law.
Based on the foregoing, we affirm the March 8, 2018
Final Judgment, entered by the Circuit Court of the First
Circuit.
DATED: Honolulu, Hawai#i, August 28, 2020.

On the briefs:
/s/ Lisa M. Ginoza
Richard C. DeWaele, Chief Judge
for Plaintiff-Appellant.

Richard M. Rand, /s/ Katherine G. Leonard
(Marr Jones & Wang), Associate Judge
for Defendant-Appellee.

/s/ Derrick H. M. Chan
Associate Judge

2
Prior to April 1, 2014, Roberts had worked at BMW of Honolulu
between 2003 and 2007 and then worked at BMW of San Antonio.

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