The Hawaii Intermediate Court of Appeals (“ICA”) issued a summary disposition order in Dung v. Shelly Eurocars, LLC (August 28, 2020), pertaining to a complaint under the Hawaii Whistleblowers’ Protection Act (“HWPA”).  Because the opinion was not published, it does not create legal precedent and may not be cited except under certain circumstances.  However, it provides insight into how the ICA might decide a similar case in the future and also serves as a helpful reminder for employers about whistleblowing and retaliation.

Background

Dung was employed as a shuttle driver.  After a customer complaint, he had a meeting with his supervisor.  He later found out that his supervisor spoke to other employees about the meeting.  On January 13, he wrote a letter to the manager complaining that his supervisor violated his constitutional right to privacy by making remarks to coworkers about the meeting.

On May 9, Dung received a written warning for sleeping in the customer lounge.  On June 6, Dung was terminated after he was again found sleeping on the job in the customer lounge.

Dung claimed that his termination violated the HWPA, which prohibits an employer from taking any adverse employment action against an employee because the employee engaged in protected conduct.  Dung argued that he was not terminated for sleeping on the job, but because his January 13th letter reported a violation of law.

Court’s Holding

The ICA noted that the five-month span between the protected conduct (January 13th letter) and the adverse employment action (June 6th termination) could amount to evidence that the latter was caused by the former.  However, the ICA determined that “the mere fact of relative temporal proximity” was not enough to prove causation, and Dung had not shown that his alleged protected conduct was a “substantial or motivating factor” in BMW’s decision to terminate him.

Additionally, the ICA noted that Dung did not provide any evidence that the person who terminated him knew about Dung's January 13th complaint letter.  Thus, Dung failed to provide evidence that the proffered reason for his termination (being caught sleeping on the job) was pretextual.

Takeaways

For purposes of defending both whistleblower and retaliation complaints, supervisors should be very careful when disciplining employees who have made complaints.  Equally important is for supervisors to consistently document misconduct, which can play an important role in proving that the reason for termination is not pretextual.