No. SCWC-28516, Thursday, December 20, 2012, 9 a.m.

(Amended 10/30/12)

GERARD R. LALES, Respondent/Plaintiff-Appellant, vs. WHOLESALE MOTORS COMPANY, dba JN AUTOMOTIVE GROUP, JOHNNY MARTINEZ, and GARY MARXEN, SR., Petitioners/Defendants-Appellees.

Attorneys for Petitioners:

Christopher J. Muzzi and Leila Rothwell Sullivan of Tsugawa Biehl Lau & Muzzi LLLC

Attorney for Respondent:

Daphne E. Barbee

The above-captioned case has been set for argument on the merits at:

Supreme Court Courtroom
Ali`iolani Hale
417 South King Street
Honolulu, HI 96813

NOTE: Certificate of Recusal, by Associate Justice Richard W. Pollack, filed 09/19/12.

NOTE: Order assigning Circuit Court Judge R. Mark Browning in place of Justice Pollack, recused, filed 09/24/12.

NOTE: Order accepting Application for Writ of Certiorari, filed 10/09/12.

NOTE: Order granting postponement and rescheduling of oral argument to 12/20/12, filed 10/30/12.

COURT: MER, CJ; PAN, SRA, & SSM, JJ; Circuit Court Judge R. Mark Browning in place of Justice Pollack, recused.

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Brief Description:

This case arises from an employment discrimination action filed by respondent/plaintiff-appellant Gerard R. Lales against petitioners/defendants-appellees Wholesale Motors Company, dba JN Automotive Group (JN), Johnny Martinez, and Gary Marxen, Sr., (collectively referred to as “Defendants”). Lales asserted state and federal harassment and retaliation claims, a breach of contract claim, and a claim of unlawful termination in violation of public policy. The Circuit Court of the First Circuit (circuit court) granted summary judgment in favor of Defendants on all of Lales’s claims and entered its Amended Final Judgment on February 5, 2007. In its July 6, 2012 judgment, entered pursuant to its May 9, 2012 Memorandum Opinion, as amended, the Intermediate Court of Appeals (ICA) vacated in part and affirmed in part the circuit court’s decision. Defendants filed an application for a writ of certiorari to review the ICA’s judgment.

Defendants argue that the ICA gravely erred in determining that: (1) summary judgment was improper based on the evidence before the circuit court; (2) agents of an employer could be held individually liable under HRS § 378-2 for alleged discriminatory conduct; (3) the affirmative defense to federal employment discrimination claims, set forth by the United States Supreme Court in Faragher v. City of Boca Raton, 524 U.S. 775 (1998), does not apply in situations where a supervisor’s harassment culminates in tangible employment action; (4) Lales submitted sufficient evidence to create an issue of material fact as to whether the proffered reason for his termination was pretextual; and (5) the circuit court should not have granted summary judgment as to the claim that Defendants’ actions violated public policy.