Kitsu v. Department of Education

NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Electronically Filed
Intermediate Court of Appeals
CAAP-XX-XXXXXXX
29-AUG-2024
08:33 AM
Dkt. 185 SO

CAAP-XX-XXXXXXX

IN THE INTERMEDIATE COURT OF APPEALS
OF THE STATE OF HAWAI#I

SUSAN H. KITSU, Plaintiff-Appellant,
v.
DEPARTMENT OF EDUCATION, STATE OF HAWAI#I,
Defendant-Appellee,
and
JOHN AND MARY DOES 1-50, DOE PARTNERSHIPS 1-50,
DOE CORPORATIONS 1-50, AND OTHER DOE ENTITIES 1-50,
Defendants

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT
(CIVIL NOS. 15-1-1824-09 and 16-1-1076-06)

SUMMARY DISPOSITION ORDER
(By: Leonard, Acting Chief Judge, McCullen, J.; and
Circuit Judge Tonaki, in place of Hiraoka,
Wadsworth, Nakasone, and Guidry, JJ., all recused)

Plaintiff-Appellant Susan H. Kitsu (Kitsu) appeals from

the January 15, 2020 Final Judgment (Judgment) entered in favor

of Defendant-Appellee Department of Education, State of Hawai#i

(DOE), in the Circuit Court of the First Circuit (Circuit

Court).1 Kitsu also challenges the Circuit Court's July 30, 2019

Findings of Fact [(FOFs)], Conclusions of Law [(COLs)], and Order

(FOFs, COLs, and Order).

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The Honorable Gary W.B. Chang presided.
NOT FOR PUBLICATION IN WEST'S HAWAI#I REPORTS AND PACIFIC REPORTER

Kitsu raises five points of error on appeal, contending

that the Circuit Court erred in: (1) not entering default or an

adequate remedy against DOE for its bad faith destruction of

documents, devices, and electronically-stored information (ESI)

that resulted in actual and substantial prejudice to Kitsu; (2)

disregarding its October 29, 2018 Order Granting in Part and

Denying in Part [Kitsu's] Motion for Entry of Default (Order

Imposing Discovery Sanctions); (3) entering the FOFs, COLs, and

Order and the Judgment; (4) failing to apply the correct
statement of law in a "mixed-motive" employment termination case;

and (5) concluding that Kitsu did not place DOE or the court on

notice that a mixed motive standard applied in this action.

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 Kitsu's points of error as follows:

(1) Kitsu argues that DOE's destruction of evidence

was deliberate and in bad faith, and resulted in Kitsu suffering

actual prejudice. Kitsu contends that the Circuit Court

therefore erred in not entering default against DOE.
The Circuit Court agreed with Kitsu that DOE was "on

notice" of, inter alia, the investigation related to Kitsu and

that DOE was culpable in destroying the requested documents

(including emails); the court stated as much in its detailed

findings in the Order Imposing Discovery Sanctions. The Circuit

Court thoroughly examined and recognized the resulting prejudice

to Kitsu in the context of the burdens of proof in this

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litigation. Yet, the Circuit Court also considered that it found

carelessness, rather than nefarious intent, which was

nevertheless inexcusable and sufficient to constitute bad faith

to justify imposition of discovery sanctions. The Circuit Court

balanced these considerations in its review of Kitsu's request

for sanctions.

The Circuit Court examined and considered "[o]ne of the

most severe forms of discovery sanctions," i.e., the entry of

default, and determined that it was too harsh a sanction in light
of the nature and circumstances of DOE's actions. The Circuit

Court fashioned a remedy that it determined was "a fair

sanction," weighing the equities of the circumstances of the

case. Upon review, we conclude that the Circuit Court did not

abuse its discretion in imposing an evidentiary presumption (as

detailed in the Order Imposing Discovery Sanctions), instead of

entering default against DOE. See, e.g., Weinberg v. Dickson-

Weinberg, 123 Hawai#i 68, 71, 75-78, 229 P.3d 1133, 1136, 1140-43

(2010) (sanctions are reviewed for abuse of discretion).

(2) Kitsu argues that the Circuit Court failed to

follow its own remedial order because it did not, in its FOFs,

COLs, and Order, indicate that the presumptions were considered,

rebutted, or simply ignored. The remedy imposed by the Circuit

Court in the Order Imposing Discovery Sanctions was to
impose a presumption that imposes upon [DOE] the burden to
produce evidence in accordance with Rule 303 of the Hawaii
Rules of Evidence on any contested material issue of fact.
If [Kitsu] introduces evidence of a fact or facts that give
rise to an inference that a presumed fact also exists, then
[DOE] has the burden to produce admissible evidence to
support the nonexistence of the presumed fact.

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If [DOE] fail[s] to produce such evidence, then the
trier of fact may infer that the presumed fact does exist.
A bald testimonial denial of the existence of the presumed
fact, without more indicia of its veracity, shall not, in
and of itself, be sufficient to discharge [DOE's] duty to
produce evidence.

If [DOE] does produce evidence that would support a
finding that the presumed fact does not exist, then there is
no presumption or inference that applies to the contested
material fact and the trier of fact must make a
determination of the existence or nonexistence of that fact
without regard to any presumption or inference.
If [Kitsu] intends to avail herself of this
presumption, she shall give [DOE] and the court advance,
written notice of: (1) the fact or facts that give rise to
an inference that a presumed fact exists, and (2) specify
the presumed fact or facts that is or are to be inferred to
exist. Said advance notice may be given any time before
[Kitsu] seeks to introduce the fact or facts that give rise
to the presumed fact. [Kitsu] need not identify the witness
or exhibit through which the fact or facts will be
introduced into evidence.

Kitsu's argument makes the unsupported assertion that

the Circuit Court did not follow its own order simply because the

court did not refer to presumed facts as such in the FOFs, COLs,

and Order. First, when pointing to where in the record she

objected to this alleged error, Kitsu points to her March 13,

2019 objections (Objections) to the FOFs, COLs, and Order (and

her own form of order; we note that Kitsu pointed to no presumed

facts as such in her own proposed form of order). Kitsu does not

provide any page number reference within the 96-page Objections

document, and we are unable to identify any objection therein

based on the failure to refer specifically to presumed facts as

such in the FOFs, COLs, and Order. Second, the FOFs, COLs, and

Order contain 206 FOFs, not including subparts, and Kitsu fails

to specifically point to which of them are impacted by this

alleged error. Finally, it is well-established in Hawai#i law

that a jury, as trier-of-fact, is presumed to follow a court's

instructions. See, e.g., State v. Feliciano, 149 Hawai#i 365,

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377, 489 P.3d 1277, 1289 (2021). This principle applies here to

support the presumption that the Circuit Court followed its own

order; Kitsu cites no authority for a contrary proposition of

law.

In sum, we conclude that this argument is waived, and

even if it were not waived, it is without merit.

(3) Kitsu argues that the Circuit Court erred when it

entered the FOFs, COLs, and Order and the Judgment, specifically

that the court erred by modifying its previous (unsigned,
unfiled) Court's Notes Re: Iniclination [sic] Kitsu vs. Dept of

Education 11-27-18 @ 2:00 p.m. (Inclination).

On December 3, 2018, Kitsu filed a motion "in

opposition" to the Inclination, which primarily raised the issue

of a defendant's burden of proof in a mixed-motive case of

whistleblower liability under Hawaii Revised Statutes (HRS)

Chapter 378 and argued that DOE had not met its burden of proof.

On January 25, 2019, after a hearing, the Circuit Court entered

an order denying Kitsu's motion, stating, inter alia, Kitsu

failed to give any notice that she was raising a mixed-motive

claim (Order re Inclination), but even if she had, the evidence

at trial did not support the claim. The court then explained the

purpose for the Inclination and its instructions for the

preparation of the FOFs, COLs, and Order. Kitsu's highly

selective quotation does not fairly convey the Circuit Court's

rulings and instructions as stated in the Order re Inclination,

which includes:
The court disclosed its inclination to the parties
informally to afford the parties an opportunity to explore

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an amicable resolution of this case. However, it appears
that such an amicable end to this case is beyond the reach
of the parties.
Therefore, the court hereby advises all parties that
the court's written notes of its inclinations are hereby
formally adopted by the court as an indication of the
court's decision herein. Therefore, [DOE] is instructed to
prepare detailed, formal written findings of fact and
conclusions of law and order that is patterned after the
court's inclination.

The findings and conclusions should follow the
analysis of the traditional McDonnell Douglas framework with
regard to the shifting burdens of proof of the parties.
However, the court requests that [DOE] prepare a substantial
footnote that sets forth this court's findings and
conclusions that apply to a mixed-motive framework as an
alternative analysis that leads to the same result. The
purpose for such a footnote is so that, in the event that an
appellate court disagrees with this court's conclusion that
[Kitsu] failed to give notice to the court and the defense
of her intention to prosecute the instant case as a mixed-
motive case instead of a pretext case, then the appellate
court will have the footnote to rely upon to gauge what this
court's findings and conclusions would have been if the case
at bar were, in fact, prosecuted as a mixed-motive case.
Alternatively, as the defense is drafting the findings
and conclusions, if it is stylistically more desirable for
the decision to read as an alternative analysis instead of a
footnote, the court will allow the defense to make that
initial determination, subject to the court's ultimate
decision with regard to the final form of the court's
findings and conclusions and order.

As the court indicated, the written notes of the
[Inclination] were neither complete nor comprehensive.
[DOE] is asked to prepare the complete, correct, and
comprehensive findings and conclusions and order to
implement the court's inclination. There are many findings
and conclusions that were not detailed in the Court's notes
of its Inclination. The [Inclination] was essentially a
summary of the bases for the court's inclination. However,
the court shall expect that the findings and conclusions and
order to be prepared by [DOE] shall be complete, correct,
and comprehensive.
[DOE] shall afford [Kitsu] her right to approve the
form of the final findings of fact and conclusions of law
and order in accordance with Rule 23 of the Rules of the
Circuit Court Rules of the State of Hawaii. [DOE] is
reminded that the findings must be thorough, complete,
correct, and comprehensive as to all findings and
conclusions that are necessary and prudent, given the
court's inclination, to arrive at a judgment in favor of
[DOE] and against [Kitsu].

(Emphasis added).

The Order re Inclination is unchallenged on appeal and

clearly directed that the Inclination was, in effect, a starting

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place for the drafting of proposed FOFs, COLS, and Order that

would be "thorough, complete, correct, and comprehensive."

Kitsu's argument that the Circuit Court erred because it modified

the Inclination is wholly without merit.

(4) Kitsu argues that she met her prima facie case

under HRS § 378-62 (2015), and that the Circuit Court failed to

require that DOE meet its shifted burden of proof. However,

Kitsu does not challenge or otherwise point to a single one of

the Circuit Court's 206 FOFs as clearly erroneous.
"[U]nchallenged factual findings are deemed to be binding on

appeal, which is to say no more than that an appellate court

cannot, under the auspices of plain error, sua sponte revisit a

finding of fact that neither party has challenged on appeal."

Okada Trucking Co. v. Bd. of Water Supply, 97 Hawai#i 450, 459,

40 P.3d 73, 82 (2002). Nor does Kitsu point to findings

establishing that she met her prima facie case, or in the absence

of such findings, evidence at trial, including any evidence

giving rise to a presumed fact. Although a trial court's

conclusions of law are not similarly binding, in this case, Kitsu

has simply alleged that they are wrong without pointing to any

particular COL or COLs and instead recited legal authorities

without reference to the Circuit Court's analysis in this case.

Kitsu's argument is wholly unsupported by any citation to the

record and rulings in this case and, accordingly, is without

merit.

(5) Kitsu argues that the Circuit Court and DOE were

"on actual notice" that this case involved a mixed-motive

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analysis. Kitsu again provides this court no citation to the

rather voluminous record before this court other than to direct

us to a "simple reading of the Complaints and Pleadings", with no

docket numbers or dates or the like. Moreover, this argument

disregards and fails to address that when Kitsu raised the mixed-

motive analysis post trial, in the Objections, the Circuit Court

procedurally and substantively addressed the mixed-motive

analysis in the unchallenged Order re Inclination and in

paragraphs a through aa of footnote 4 at pages 78-81 of the FOFs,
COLs, and Order. Kitsu did not challenge any of the findings

and/or conclusions set forth in footnote 4. Kitsu's argument

provides no cogent basis for appellate relief.

For these reasons, the Circuit Court's January 15, 2020

Judgment is affirmed.

DATED: Honolulu, Hawai#i, August 29, 2024.

On the briefs: /s/ Katherine G. Leonard
Acting Chief Judge
Leighton K. Lee,
(Law Offices of Leighton K. Lee), /s/ Sonja M.P. McCullen
and Associate Judge
Gary Y. Okuda,
(Leu Okuda & Doi), /s/ John M. Tonaki
for Plaintiff-Appellant. Circuit Judge

James E. Halvorson,
Henry S. Kim,
Deputy Attorneys General
for Defendant-Appellee.

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