Gima v. City and County of Honolulu.

• Court: Hawaii Supreme Court
• Decided: June 9, 2025
• Docket: SCAP-23-0000416
• Status: Published

Opinion

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Electronically Filed Supreme Court SCAP-XX-XXXXXXX 09-JUN-2025 09:53 AM Dkt. 14 OP

IN THE SUPREME COURT OF THE STATE OF HAWAII

---o0o---

ANN GIMA, Plaintiff-Appellant,

vs.

CITY AND COUNTY OF HONOLULU, Defendant-Appellee.

SCAP-XX-XXXXXXX

APPEAL FROM THE CIRCUIT COURT OF THE FIRST CIRCUIT (CAAP-XX-XXXXXXX; CASE NO. 1CC181001745)

JUNE 9, 2025

RECKTENWALD, C.J., McKENNA, EDDINS, GINOZA, AND DEVENS, JJ.

OPINION OF THE COURT BY DEVENS, J.

I. INTRODUCTION

This transfer case from the Intermediate Court of Appeals

(ICA) is an appeal involving disability discrimination, failure

to provide a reasonable accommodation, and retaliation claims.

Plaintiff-Appellant Ann Gima (Gima) appeals the circuit court’s

May 22, 2023 Findings of Fact, Conclusions of Law, and Order

Granting Defendant-Appellee City and County of Honolulu’s (City) *** FOR PUBLICATION IN WEST’S HAWAII REPORTS AND PACIFIC REPORTER ***

Motion for Judgment on the Pleadings and/or Summary Judgment

(Order) and the Judgment entered on June 5, 2023.

Gima was employed with the City’s Department of Budget and

Fiscal Services’ (BFS) Real Property Assessment Division for

over twenty years. After she was promoted to Real Property

Technical Officer (RPTO) in 2012, Gima contends that her direct

supervisor, Robert Magota (Magota), began to verbally harass and

abuse her, which resulted in her being diagnosed with major

depressive disorder and anxiety disorder. The City placed Gima

on workers’ compensation leave after she was medically

restricted from working with Magota. Gima was on leave

intermittently from 2014 to February 2018.

In November 2017, Gima requested a reasonable accommodation

to work with a supervisor other than Magota due to her medical

condition and related work restriction. The City denied her

request. At the time, Gima was enrolled in the City’s workers’

compensation Priority Placement Program to find her an alternate

position in another City department. However, at the end of

2017, Magota retired from BFS. In February 2018, Gima returned

to work at BFS as she was no longer subject to Magota’s

supervision. On April 27, 2018, less than three months after

returning from leave, Gima’s new supervisor, Steven Takara

(Takara), issued her a substandard performance evaluation and

Gima was subsequently demoted to Real Property Appraiser IV.

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BFS Director, Nelson Koyanagi, Jr. (Koyanagi), issued the

written notification of Gima’s demotion and directed her to

address her questions and concerns with Takara. At the time of

the substandard evaluation and demotion, Takara was purportedly

aware of Gima’s prior issues with Magota, Gima’s medical

diagnoses, and Gima’s workers’ compensation leave taken from

September 2017 through January 2018.

Gima filed claims with the Hawai‘i Civil Rights Commission

(HCRC) asserting disability discrimination and retaliation, and

subsequently filed a timely lawsuit in the Circuit Court of the

First Circuit (circuit court). Her suit claimed that the City

discriminated against her because of her disability, denied her

a reasonable accommodation, and retaliated against her based on

two prior HCRC complaints she filed in 2016 and the reasonable

accommodation request she submitted in November 2017. The City

moved for summary judgment on all claims, which the circuit

court granted.

Gima contends the circuit court erred in finding that she

failed to establish a prima facie case of disability

discrimination or retaliation and further contends the City’s

purported reasons for her demotion were pretextual. She also

asserts the circuit court erred in concluding that her request

for an alternate supervisor was unreasonable as a matter of law,

and further contends that the City failed to provide a

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reasonable accommodation when she requested a different

supervisor.

Viewing the evidence and the inferences drawn therefrom in

the light most favorable to Gima, we hold that Gima established

a prima facie case of disability discrimination, and, therefore,

the court erred in granting summary judgment on that claim.

Gima met her summary judgment burden of establishing that she

had a disability, was qualified for her position, and was issued

a substandard performance evaluation and demoted because of her

disability. There is also a genuine issue of material fact that

the City’s proffered reasons for Gima’s negative evaluation

issued in April 2018 and subsequent demotion were pretextual.

We further hold that Gima’s request for an alternate

supervisor was not, as a matter of law, an unreasonable

accommodation, and that Gima established a genuine issue of

material fact as to whether the City could have assigned her to

a different direct supervisor. However, the City was only

required to provide a reasonable accommodation rather than

Gima’s specific request, and, even when viewing the evidence in

the light most favorable to Gima, the record demonstrates that

the City engaged in an interactive process to accommodate Gima.

It is uncontested that the City offered Gima a position in the

Department of Transportation Services as part of its Priority

Placement Program before Magota retired in 2017. However, while

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the City was in the process of transferring Gima to the

Department of Transportation Services, Magota retired and Gima

elected to return to her original position at BFS. At the time,

Gima’s only medical restriction was working with Magota. Under

these facts and circumstances, Gima failed to establish a

genuine issue of material fact that the City failed to engage in

a good faith interactive process to accommodate her.

We further hold that the circuit court erred in granting

the City’s motion for summary judgment with respect to Gima’s

retaliation claim. Gima engaged in protected activities when

she filed two complaints with the HCRC in 2016 and requested a

reasonable accommodation in 2017. Gima suffered an adverse

employment action when the City issued her a substandard

performance evaluation and demoted her in 2018. And Gima met

her burden establishing a causal connection between the

protected activities and the subsequent adverse employment acts.

As stated, Gima established a genuine issue of material fact as

to whether the City’s proffered reasons for her negative

performance evaluation and demotion were pretextual.

For the reasons discussed below, we affirm in part and

vacate in part the circuit court’s May 22, 2023 Order and

June 5, 2023 Judgment. We remand this case for further

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proceedings consistent with this opinion.

II. BACKGROUND

Gima was first employed with BFS from 1987 to 1992. After

a brief hiatus, she returned to her employment at BFS in 1995.

In 2000, Gima was promoted to Real Property Appraiser VI. In

2012, she was promoted to the position of RPTO which is when

Magota became her direct supervisor. From 2013 through 2017,

Gima made multiple complaints that Magota had subjected her to

verbal harassment and abuse. This harassment, Gima contends,

led to her being medically diagnosed with a “disabling anxiety

disorder” and major depressive disorder. Based on her anxiety

and depression, Gima filed a workers’ compensation stress claim

and was placed on workers’ compensation leave intermittently

from 2014 to 2018.

A. Gima’s Workers’ Compensation Claims 2014 to 2016

Gima asserts that beginning in December 2012 “Mr. Magota

began a campaign of intensely abusive behavior, hostility,

personal attacks, harassment, discrimination, and retaliation

against [her] resulting in unbearable working conditions.” Gima

filed a workplace violence complaint with the City against

Magota on October 29, 2013. In February 2014, Gima informed BFS

Deputy Director Gary Kurokawa (Kurokawa) and BFS Director

Koyanagi “that Mr. Magota was making derogatory remarks about

[her].” Gima reported Magota to the City’s Equal Opportunity

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Office on June 23, 2014. In December 2014, Gima was diagnosed

with an anxiety disorder “as a result of Mr. Magota’s relentless

treatment against [her].”

In December 2014, Gima submitted a workers’ compensation

injury claim with the City and was placed on workers’

compensation leave for her anxiety disorder. From December 2014

to February 2016, Gima remained on leave. 1 During that time

period, Gima requested a reasonable accommodation to be assigned

to a supervisor other than Magota, which the City denied. 2 In

February 2016, Gima returned to work. The evidence from Gima’s

physician, Raymond Davidson, M.D. (Dr. Davidson), showed that

Gima was diagnosed with major depressive disorder in January

2016. The City’s own independent doctor also diagnosed Gima

with an anxiety disorder.

B. Gima’s Harassment Allegations Against Magota 2013 to 2016

The evidence indicates that from 2013 to 2016, the Equal

Opportunity Office investigated Gima’s workplace violence

complaint filed against Magota and issued findings that “did not

support a determination of workplace violence or harassment as

alleged”; however, the “investigative panel did find that stress

1 Gima’s declaration stated that she was out on leave from December 2014 to early March 2015, and later from March 2015 to February 11, 2016.

2 Gima attested that her request for a reasonable accommodation was denied on or about October 14, 2015.

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in the workplace is escalating and may reach detrimental levels

if not address[ed] and diffused.” On April 18, 2016, BFS

Director Koyanagi sent Magota a letter as a “follow-up to the

meeting that Gary Kurokawa and [Koyanagi] had with [Magota] on

April 13, 2016 regarding the [Equal Opportunity Office]

complaint filed by Ann Gima on June 23, 2014.” Koyanagi’s

letter stated that “the cumulative consequence of [Magota’s]

actions and inactions culminated in harassment, although not

related to [Gima’s] gender, and that [Magota] exercised [his]

authority in a manner that accelerated rather than quelled

further dispute with [Gima].”

C. Gima’s HCRC Charges 2016

On March 14, 2016, Gima filed an HCRC complaint alleging

discrimination by the City on the basis of her sex and

disability. The HCRC charge notified BFS Director Koyanagi of

Gima’s charges, which included assertions that she had been

harassed by Magota and was “denied a reasonable accommodation

for [her] disability (mental).” Gima’s March 2016 HCRC

complaint also alleged that in 2015, she was denied her

reasonable accommodation request “to work under the direction of

someone other than Mr. Magota.” Gima did not file a lawsuit

within the statutory period after receiving her right to sue

letter from the HCRC for her March 2016 HCRC complaint.

On November 2, 2016, Gima filed a second HCRC complaint

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asserting sex discrimination and retaliation. Gima asserted

that she was “subjected to harassment due to [her] sex (female)

and/or in retaliation for [her] opposition to discrimination.”

A notice of the charge was addressed to BFS Director Koyanagi.

Again, Gima did not file a lawsuit within the statutory period

after receiving her right to sue letter from the HCRC.

D. Gima’s Negative Reviews 2017

In January 2017, Gima received a substandard performance

evaluation from Magota for the January 23, 2016 to January 22,

2017 rating period. Gima attested that she “did not receive

negative performance evaluations until after Mr. Magota received

the letter from the [Equal Opportunity Office] in 2016.” The

evidentiary record confirms that the first negative evaluation

Gima received was on January 23, 2017, after she filed her 2016

HCRC complaints. The other evaluations were dated June 2017,

September 2017, and April 2018. The January 2017 review stated

that Gima did “very little work” on an annual report from 2016;

did not properly train and support her staff; and that Magota

“found Gima to be difficult to work with, argumentative,

uncooperative and defiant.” In response, Gima submitted a

written rebuttal asserting, inter alia, that the issues

proffered by Magota were either never raised formally or the

projects were not assigned to her; she adequately led trainings

for her staff; and “Magota’s personal bias is the determinate

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factor in this rating.”

On May 16, 2017, Takara was promoted to Real Property

Assessment Administrator, a position senior to Gima’s. Magota

remained as the Assistant Real Property Assessment Administrator

and Gima’s direct supervisor.

Gima was placed on a special three-month performance

evaluation from June 19, 2017 to September 18, 2017, “due to the

substandard performance evaluation” from the prior rating

period. On September 14, 2017, Magota gave Gima another

substandard evaluation and extended her special performance

evaluation period an additional three months. Takara signed off

on the September 2017 substandard evaluation. The performance

evaluation stated that Gima had met several times with both

Takara and Magota during the rating period to discuss her work

performance. In the evaluation, Magota asserted that Gima made

errors in the quarterly budget; failed to make progress on the

implementation of a “New Home Exemption Review Program”; did not

accept responsibility for her assignments; demonstrated

“disrespect” when she “became argumentative with her superior,

Takara”; and “lack[ed] job knowledge.” Gima submitted a

rebuttal to the evaluation asserting, among other things, that

the issues with the budget were also due to the lack of review

by the administration, lack of communication, and a “formula

error”; the New Home Exemption Review Program was initiated by

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Magota and assigned to Takara, and the project was partially

stalled due to delays on Takara’s part; Magota unreasonably

faulted her for a problem that a vendor and Takara had been

unable to solve for years; and the other incidents cited by

Magota were “clouded” by Magota’s bias.

E. Gima’s Workers’ Compensation Leave 2017 to 2018

On September 15, 2017, Gima was again placed on workers’

compensation leave due to her medical condition (anxiety and

major depressive disorders) and remained on leave through

January 31, 2018.

On November 15, 2017, Gima submitted another request for a

reasonable accommodation asking that she be supervised by

someone other than Magota as he exacerbated her anxiety

disorder. Gima’s request for a different supervisor was

pursuant to “the advice of [her] physician as well as the City’s

own IPE doctor, Dr. Joseph Rogers.” Gima attested that “a

change in personnel,” after Takara was promoted to RPA

Administrator, allowed her to “be supervised by a higher-level

Administrator,” and that Mr. Takara, Mr. Kurokawa, or

Mr. Koyanagi could have supervised her at that time. On

December 5, 2017, BFS denied Gima’s reasonable accommodation

request.

Gima was enrolled in the City’s Priority Placement Program

from October 11, 2017 to February 1, 2018. The City was in the

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process of placing Gima in a position with the Department of

Transportation Services when Magota retired from BFS. Magota

retired on December 30, 2017, and, as a result, Takara became

Gima’s new BFS supervisor. The City informed Gima that she

could return to work at her BFS position subject to her doctor’s

approval.

F. Gima’s Negative Review and Demotion 2018

On February 1, 2018, with Takara serving as Gima’s new

direct supervisor, Gima returned to work at BFS with her

doctor’s approval. There is no evidence in the record that

Gima’s previously diagnosed medical conditions of anxiety and

major depressive disorder had resolved before or after she

returned from leave.

Within a few weeks after returning to work, Gima asserted

that she met with Takara who “criticized [her] for many very

small issues, such as typographical errors, and other issues

that occurred while [she] was out on worker[s’] compensation

leave.” BFS informed Gima that her special performance

evaluation period that was interrupted by her prior leave would

resume on February 1, 2018 through April 30, 2018.

On April 27, 2018, Takara met with Gima and gave her a

substandard performance evaluation. That same day, the City

issued Gima a letter demoting her to Real Property Appraiser IV.

BFS Director Koyanagi signed off on the demotion letter and

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copied Takara. Gima’s demotion was effective May 7, 2018.

Takara’s April 2018 substandard evaluation stated: (1) Gima

made careless errors in a report published in September 2017;

(2) her finalized testimony for a bill contained an incorrect

date on the second page header and a data table that did not fit

on the page; (3) she “critique[ed]” Takara’s comments in

response to one of her assignments; (4) she failed to give

feedback on her outstanding assignments; and (5) she “push[ed]

work onto others” and “continued her pattern of poor

communication.” The evaluation also described an incident where

Gima purportedly failed to communicate the location of a meeting

with a vendor.

Gima submitted a five-page written rebuttal of the

evaluation, asserting, inter alia: (1) she regularly gave

feedback on outstanding assignments at weekly branch meetings;

(2) Takara failed to give her clear direction on her

assignments; and (3) Takara refused to assist her or her

subordinates. Gima disputed that the typographical error

impacted operations in a manner warranting a substandard

performance review, and asserted that she never received

feedback on the bill testimony. As to the claim that she failed

to communicate the location of a vendor meeting, Gima asserted

that this was a mix-up because “[e]very meeting” took place at

BFS’s office, but in this instance the vendor scheduled the

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meeting at the vendor’s facility. Gima also claimed that she

did not timely learn of the change in meeting location.

G. Gima’s HCRC Complaints 2018 and Subsequent Workers’ Compensation Leave

On April 30, 2018, Gima filed a third HCRC complaint

asserting disability discrimination and retaliation by the City.

In her HCRC complaint, Gima asserted that she was “denied a

reasonable accommodation based upon [her] disability” when the

City denied her request for a supervisor other than Magota on

December 5, 2017. She claimed that the City “failed to engage

in the proper interactive process to accommodate [her]

disability” and violated her rights in denying her a reasonable

accommodation. Gima also asserted that she continued to be

“over-scrutinized and subjected to unfair negative performance

evaluations based upon [her] disability and in retaliation for

filing discrimination complaints with the [HCRC] on March 14,

2016 and on November 2, 2016.”

Gima’s physician, Dr. Davidson, signed a “disability

determination form” dated May 29, 2018, stating that Gima had

been suffering from major depressive disorder from January 2016

through at least May 29, 2018, which caused her to experience

“anxiety,” “fear,” “fatigue,” and “poor concentration.”

Dr. Davidson further stated that Gima’s major depressive

disorder (“depressed mood, anxiety, insomnia, fatigue, no

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energy, loss of appetite, fear, unable to think, poor

concentration”) substantially affected her “[r]eading, working,

socializing, speaking, [and] interpersonal relationships.”

On June 7, 2018, Gima was placed on workers’ compensation

leave due to her medical conditions and was excused from work

from April 30, 2018 to October 1, 2018. Gima was unable to

return to BFS because of her medical restriction.

On June 14, 2018, Gima filed a fourth HCRC complaint

asserting that she “was demoted in retaliation for filing

discrimination complaints with the [HCRC] on March 14, 2016 and

November 2, 2016.” Gima asserted that her 2018 substandard

performance evaluation and demotion were retaliatory acts, and

denied that her work performance was “below standard.”

Gima was issued right to sue letters for her HCRC

complaints on August 3, 2018 and September 5, 2018.

III. CIRCUIT COURT PROCEEDINGS

Gima timely filed suit in the circuit court asserting

claims for disability discrimination, failure to provide a

reasonable accommodation, and retaliation in violation of Hawaiʻi

Revised Statutes (HRS) § 378-2. The City filed a motion for

summary judgment on March 3, 2023. Following a hearing, the

circuit court granted the City’s motion for summary judgment on

Gima’s disability discrimination, reasonable accommodation, and

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retaliation claims. 3

As to Gima’s disability discrimination claim, the circuit

court concluded that Gima had not established a prima facie case

of disability discrimination because: (1) she was not disabled

as a matter of law since she was not “substantially limited in a

major life activity”; (2) she was not qualified for her position

as an RPTO; and (3) her April 2018 substandard evaluation and

subsequent demotion were not based on her disability because she

“was no longer disabled” at the time the evaluation and demotion

were issued. Even if Gima had established a prima facie case of

disability discrimination, the court found that the City offered

“legitimate nondiscriminatory reasons” for not accommodating

Gima’s request for a different supervisor and for giving Gima a

substandard performance evaluation, which were not “pretextual.”

The court also found that the City did not deny Gima a

reasonable accommodation. The court determined as a matter of

law that Gima’s request for a supervisor other than Magota was

not a reasonable accommodation. Even if Gima’s request had been

reasonable on its face, the court concluded that the City

adequately engaged in an interactive process with Gima when she

was enrolled in the City’s Priority Placement Program and

offered a position in a different department.

3 The Honorable Kevin T. Morikone presided.

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As to Gima’s retaliation claim, the court concluded that

Gima could not pursue her claim that the City retaliated against

her for requesting a reasonable accommodation in November 2017.

The court determined that Gima “failed to exhaust her

administrative remedies” because she did not raise this

particular claim in her 2018 HCRC charges, which were the bases

for her circuit court complaint. The court also determined that

Gima failed to allege this claim in her civil complaint. The

court then considered Gima’s claim that the City retaliated

against her after she filed her two 2016 HCRC charges, and

concluded that pursuing charges with the HCRC was a protected

activity which met the first prong of her retaliation claim.

The court also found that Gima had satisfied the second

prong of her retaliation claim because “adverse actions include

demotions and negative performance evaluations if accompanied

with removal from the position,” and the “denial of a request

for reasonable accommodation can arguably be viewed as an

adverse act.”

However, the court determined that Gima “failed to raise a

genuine issue of material fact as to whether there is a causal

link” between the 2016 HCRC charges and the adverse actions (the

denial of her request for a reasonable accommodation in December

2017 and the negative evaluation and demotion in April 2018).

The court based this conclusion on the “lack [of] temporal

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proximity” since more than a year had passed between the

protected activities and adverse acts. The court also based the

lack of causation on the absence of evidence in the record

establishing that supervisor Takara, who issued Gima’s negative

performance review, was aware of the 2016 HCRC complaints.

Gima appealed the circuit court’s order granting the City’s

motion for summary judgment, and subsequently applied for

transfer to this court, which we granted.

IV. STANDARD OF REVIEW

We review a circuit court’s award of summary judgment de novo under the same standard applied by the circuit court. Summary 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. 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. The evidence must be viewed in the light most favorable to the non-moving party.

Adams v. CDM Media USA, Inc., 135 Hawai‘i 1, 12, 346 P.3d 70, 81

(2015) (citing Shoppe v. Gucci Am., Inc., 94 Hawai‘i 368, 376, 14

P.3d 1049, 1057 (2000)) (cleaned up); Hawai‘i Rules of Civil

Procedure (HRCP) Rule 56(c) (eff. 2000) (“The judgment sought

shall be rendered forthwith 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.”).

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“This court may affirm a grant of summary judgment on any

ground appearing in the record, even if the circuit court did

not rely on it.” Reyes v. Kuboyama, 76 Hawai‘i 137, 140, 870

P.2d 1281, 1284 (1994).

V. DISCUSSION

A. Disability Discrimination

Gima established a prima facie case of disability

discrimination. She met her summary judgment burden of

establishing a genuine issue of material fact that her major

depressive disorder and anxiety disorder constituted a

disability under HRS Chapter 378, she was qualified for her

position with a reasonable accommodation, and she was issued a

negative evaluation and demoted because of her disability.

HRS § 378-2(a) provides in relevant part, that “[i]t shall

be an unlawful discriminatory practice” 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” because of a person’s “disability.” HRS § 378-

2(a)(1)(A) (2015). In line with HRS § 378-2(a), Hawaiʻi

Administrative Rules (HAR) § 12-46-181 “prohibits any employer

or other covered entity from discriminating in employment

against individuals or persons because of a disability.” HAR §

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12-46-181 (eff. 2012).

To establish a prima facie case of disability

discrimination, Gima must demonstrate: (1) she is an individual

with a “disability” within the meaning of HRS Chapter 378; (2)

she is “qualified to perform the essential duties of . . . her

job with or without reasonable accommodation”; and (3) she

suffered an adverse employment decision because of her

disability. French v. Hawaii Pizza Hut, 105 Hawai‘i 462, 467, 99

P.3d 1046, 1051 (2004) (citation omitted).

1. There are genuine issues of material fact as to whether Gima was disabled within the meaning of HRS § 378-1.

HRS § 378-1 defines disability as “the state of having a

physical or mental impairment which substantially limits one or

more major life activities, having a record of such an

impairment, or being regarded as having such an impairment.”

HRS § 378-1 (2015); see HAR § 12-46-182 (eff. 2012).

First, Gima established she suffered a “mental impairment”

within the meaning of HRS § 378-1. HAR § 12-46-182 defines a

“physical or mental impairment” as including “[a]ny mental or

psychological disorder, such as an . . . emotional or mental

illness” including “major depression.” HAR § 12-46-182. The

record shows that Gima’s physician, Dr. Davidson, diagnosed her

with anxiety in 2014 and “major depressive disorder” in 2016.

Gima attested that the City’s independent examiner, Dr. Joseph

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Rogers (Dr. Rogers), concurred and also diagnosed her with an

anxiety disorder.

Second, there is a genuine issue of material fact that

Gima’s anxiety and major depressive disorders “substantially

limited” her major life activities. HAR § 12-46-182 defines

“[m]ajor life activities” as “[b]asic activities that most

people in the general population can perform with little or no

difficulty,” and includes reading, concentrating, thinking,

interacting with others, and working. HAR § 12-46-182; see also

Bitney v. Honolulu Police Dep’t, 96 Hawai‘i 243, 252, 30 P.3d

257, 266 (2001) (“The phrase ‘major life activities’ is defined

as functions such as caring for one’s self, performing manual

tasks, walking, seeing, hearing, speaking, breathing, learning,

and working. Reading, writing, learning, thinking, and

concentrating have all been held to be ‘major life activities’

under the ADA.”) (internal citations and quotations omitted).

“An impairment need not prevent, or severely or

significantly restrict, a person from performing a major life

activity in order to be considered substantially limiting.”

HAR § 12-46-182. “Certain impairments such as . . . major

depressive disorder . . . should easily be concluded to be

substantially limiting.” Id. Determining whether an employee’s

impairment “substantially limits” a major life activity

“requires a case-by-case analysis looking at the effect the

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impairment has on the life of the individual.” French, 105

Hawai‘i at 469, 99 P.3d at 1053 (quotations and citations

omitted); see also Bitney, 96 Hawai‘i at 253, 30 P.3d at 267

(“[W]hether a person has a disability under the ADA is an

individualized inquiry.”).

Gima asserts, and her doctor’s report confirms, that from

January 2016 through at least May 29, 2018, her major depressive

disorder caused “depressed mood, anxiety, insomnia, fatigue, no

energy, loss of appetite, fear, unable to think [sic], [and]

poor concentration” which substantially affected her major life

activities of “[r]eading, working, socializing, speaking, [and]

interpersonal relationships.” Viewed in the light most

favorable to Gima, a trier of fact could reasonably infer from

this evidence that Gima began suffering from an anxiety disorder

and major depressive disorder in 2014 and 2016 respectively,

which substantially limited her major life activities, and that

she continued to suffer from these impairments when she was

issued the negative evaluation and demoted in 2018.

The City does not dispute that Gima suffered from anxiety

or depression. Rather, the City takes the position that Gima

was not disabled as a matter of law when she returned to work in

February 2018 because: (1) her medical condition was caused by

her supervisor, Magota; (2) her sole work restriction was

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working with Magota; and (3) she was able to return to work in

February 2018 after Magota retired, thus, the City contends, her

impairment had completely resolved when she returned to work.

In other words, it was presumed that Gima’s medical conditions

fully resolved by virtue of Magota’s retirement and her return

to work.

Based on the evidence, and contrary to the City’s

interpretation, the circuit court erred in finding that Gima “no

longer suffered a disability” as of February 1, 2018 when she

returned to work. There is no indication in the record that

Gima’s anxiety or depression abruptly ended when Magota retired

or when she returned to BFS in 2018. To the contrary,

Dr. Davidson’s medical report indicates that Gima continued to

suffer from her medical conditions, including major depressive

disorder, through at least May 29, 2018. While Gima returned to

work in February 2018, a reasonable fact-finder could infer that

she was able to return to work solely because Magota retired and

was no longer supervising her, which was the reasonable

accommodation she had requested of the City on the advice of

Dr. Davidson and Dr. Rogers prior to Magota’s retirement.

The circuit court erroneously conflated Gima’s ability to

return to work under a new direct supervisor with the

termination of her disability. A change in work restrictions

and the ability to return to work does not necessarily indicate

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a person is free from their disability. While the City

correctly notes that “[t]he inability to perform a single,

particular job does not constitute a substantial limitation in

the major life activity of working,” Gima asserts substantial

limitations in multiple areas of her life other than her

inability to work at BFS which is supported by Dr. Davidson’s

medical report. See HAR § 12-46-182; Bitney, 96 Hawai‘i at 254,

30 P.3d at 268. This evidence establishes a genuine issue of

material fact.

Even if Gima’s impairment could be construed as “episodic”

or in remission at certain points between 2014 to 2018, Gima has

met her burden of establishing that she suffered an active

disability that substantially limited her major life activities

in April 2018, when she was issued her substandard performance

evaluation and subsequently demoted. HAR § 12-46-182 (“An

impairment that is episodic or in remission is a disability if

it would substantially limit a major life activity when active.

Examples of impairments that may be episodic or in remission

include . . . major depressive disorder.”) Further, both

parties submitted exhibits showing that from September 2017

through January 2018 Gima was on approved workers’ compensation

leave because of her medical conditions, which indicates that

Gima’s medical conditions continued after Magota retired at the

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end of 2017.

Because a reasonable fact-finder could infer that Gima was

suffering from a disability that substantially limited her major

life activities in April 2018, Gima raised a genuine issue of

material fact as to whether she was disabled under HRS § 378-1,

and the court erred in concluding otherwise.

2. There is a genuine issue of material fact that Gima was qualified for her position with a reasonable accommodation.

In addition to being disabled, Gima established a genuine

issue of material fact that she was “qualified to perform the

essential duties of . . . her job with or without reasonable

accommodation.” French, 105 Hawai‘i at 467, 99 P.3d at 1051.

HAR § 12-46-182 defines “qualified” as:

“Qualified” with respect to a person with a disability means a person with a disability who satisfies:

(1) The requisite skill, experience, education, and other job-related qualification standards of the employment position such person holds or desires; and

(2) Who, with or without reasonable accommodation, can perform the essential functions of such position.

HAR § 12-46-182 (emphasis added).

Whether Gima was qualified for her position as an RPTO

poses two questions: (1) did Gima have the requisite

qualifications, and could she perform the “essential functions”

of an RPTO; and (2) if Gima needed an accommodation to perform

the essential functions of an RPTO, was the accommodation

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reasonable?

There is a genuine issue of material fact as to whether

Gima had the “requisite skill, experience, [and] education” and

could perform the “essential functions” of an RPTO. “Essential

functions” refers to the “fundamental job duties of the

employment position[.]” HAR § 12-46-182. Whether a “particular

function is essential should reflect the actual functioning and

circumstances of the particular job.” Id. In this case, the

circuit court erred in finding that Gima “cannot do the

essential functions of her job based on multiple substandard

ratings by two different supervisors over a period of time[.]”

In opposing the City’s motion for summary judgment, Gima

submitted the rebuttals she provided to the City in response to

her negative performance reviews, and asserted that the reviews

were based on “discriminatory animus.”

Viewing the evidence in the light most favorable to Gima,

it can be reasonably inferred that Gima was adequately

performing the “essential functions” of her job despite the

substandard reviews issued in 2017 and 2018. First, the

substandard performance reviews issued in 2017 were both

completed by Magota, who Gima asserts retaliated and

discriminated against her. The City did not include a counter

declaration from Magota in support of its motion for summary

judgment. Second, the City does not contest that Gima did not

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receive any negative reviews prior to 2016. Based on the

evidence presented, Magota issued Gima’s first negative review

in January 2017 after Gima lodged several charges against him

with the City and submitted two HCRC complaints asserting that

Magota had engaged in disability discrimination, sex

discrimination, and retaliation against her.

Gima also met her summary judgment burden in countering the

City’s assertion that she did not complete her work with

adequate quality. In her declaration, Gima stated that she was

either not assigned certain work or she was not given proper

guidance. Further, while the 2017 reviews asserted that Gima

struggled to timely complete long-term projects, evidence

presented by both parties indicates Gima was consistently absent

from the office because she was out on authorized workers’

compensation leave for almost all of 2015 and part of 2017.

Gima also disputes the evaluation she received from Takara

in 2018 after he became her direct supervisor. In Gima’s

declaration, she attested that the tasks she was accused of not

adequately performing in 2018 were either joint projects, and

therefore not her sole responsibility, or she was unaware of

those assignments because Takara failed to inform her of her

responsibilities when she returned to BFS. Gima further stated

that when she returned to work in February 2018, Takara met with

her within a few weeks to “criticiz[e] [her] for many very small

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issues, such as typographical errors, and other issues that

occurred while [she] was out on worker[s’] compensation leave.”

Gima presents sufficient evidence controverting the City’s

claim that she was inadequately performing at BFS, and,

therefore, viewed in the light most favorable to Gima, there is

a genuine issue of material fact as to her qualifications

serving in her role as an RPTO. See Nationstar Mortg. LLC v.

Kanahele, 144 Hawaiʻi 394, 401–02, 443 P.3d 86, 93–94 (2019)

(“[A] party moving for summary judgment is not entitled to a

judgment merely because the facts he offers appear more

plausible than those tendered in opposition or because it

appears that the adversary is unlikely to prevail at trial . . .

if the evidence presented on the motion is subject to

conflicting interpretations, or reasonable men might differ as

to its significance, summary judgment is improper.”) (citation

omitted).

The circuit court further erred in finding that Gima was

unqualified for her position simply because she was medically

restricted from working with Magota. To determine whether Gima

was qualified to work as an RPTO in BFS, with or without

reasonable accommodation, we must first address whether Gima’s

request for a supervisor other than Magota was a reasonable

accommodation request.

Whether an employee’s request for an alternate supervisor

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can be construed to be a reasonable accommodation request is an

issue of first impression for this court. We hold that

requesting an alternate supervisor is not unreasonable as a

matter of law. Whether such a request is reasonable must be

determined on a case-by-case basis by conducting an

individualized inquiry into whether the employer can reasonably

accommodate such a request. See Hamilton v. GlaxoSmithKline,

LLC, 414 F.Supp.3d 1286, 1294-95 (D. Mont. 2019) (declining to

adopt a per se rule that assigning a new supervisor is not a

reasonable accommodation), aff’d, 835 Fed. Appx. 936 (9th Cir.

2021); see also Kennedy v. Dresser Rand Co., 193 F.3d 120, 122-

23 (2d Cir. 1999).

HAR § 12-46-182 defines “reasonable accommodation,” in

relevant part, as “[m] odifications or adjustments to the work

environment, or to the manner or circumstances under which the

position held or desired is customarily performed, that enable a

person with a disability to perform the essential functions of

that position[.]” HAR § 12-46-182. This includes modifications

such as “[j]ob restructuring,” “part-time or modified work

schedules,” or “reassignment to a vacant position[.]” Id.

Neither French nor Bitney considered whether requesting an

alternate supervisor can be a reasonable accommodation; however,

in both cases we emphasized that an “individualized” approach is

necessary in assessing disability discrimination claims.

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French, 105 Hawaiʻi at 469-70, 99 P.3d at 1053-54; Bitney, 96

Hawaiʻi at 253, 30 P.3d at 267. Applying a similar

“individualized” approach to a reasonable accommodation request,

i.e., considering whether the request is reasonable in the

context of an employee’s workplace, is consistent with both our

disability discrimination caselaw and statutory framework.

While there are certainly situations where requesting

another supervisor would be untenable for a business or would be

excessively disruptive and pose an undue hardship, we do not

find it persuasive that it is unreasonable, as a matter of law,

to request another supervisor as a reasonable accommodation. We

find the Montana District Court’s reasoning in Hamilton v.

GlaxoSmithKline, LLC persuasive.

If a court were to hold that, under the facts and circumstances of a particular case, assignment to another supervisor was a reasonable accommodation, its decision would not necessarily force a dramatic restructuring of an organizational chart. For example, imagine that a large business employs forty customer service representatives, twenty of whom are randomly assigned to one supervisor, and twenty to another. Assuming that one of the representatives has a disability which means that she can successfully work under one supervisor but not the other, reassignment would carry with it minimal expense and disruption.

Hamilton, 414 F.Supp.3d at 1294.

Because this case was decided by summary judgment, Gima’s

burden was to establish a genuine issue of material fact as to

whether it was reasonable to have an alternate supervisor

assigned to her. The record reveals conflicting evidence that

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gives rise to a genuine issue of material fact as to whether

someone at BFS other than Magota could have supervised Gima.

Gima worked for many years at BFS and in her declaration stated

that either “Mr. Takara, Mr. Kurokawa, or Mr. Koyanagi could

have been directed to supervise [her].” Gima added that the

“change in personnel” that occurred at BFS would have allowed

her to change supervisors in 2017.

The City primarily argued that Gima’s declaration did not

establish that she had “personal knowledge” to attest that

someone else could have supervised her. Additionally, Takara

stated in his declaration that it “would not be possible” for

someone other than Magota to have supervised Gima because, as of

May 2017, Takara was “newly promoted” and the division was

“short staffed.” The City did not proffer a specific reason as

to why Koyanagi or Kurokawa would have been unable to supervise

Gima.

The City’s argument that Gima did not have the requisite

knowledge to attest that Takara, Kurokawa, or Koyanagi could

have supervised her is unavailing. Gima’s declaration was made

“upon [her] personal knowledge and belief,” and recited that she

had worked continuously at BFS since 1995. When Gima was

promoted to RPTO in July 2012, she had over twenty years of

experience working in the City’s Real Property Assessment

Division and twelve years of supervisory experience. Gima

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further stated that her direct supervisor Magota lacked the

knowledge and understanding involved with the functioning of the

City’s Real Property Assessment Division and recalled Kurokawa

performing some of Magota’s job duties and conducting weekly

meetings in 2017. Gima’s declaration demonstrates her personal

knowledge of the inner workings and operations of BFS, and

Takara, Kurokawa, and Koyanagi’s roles in the Real Property

Assessment Division. Viewed in the light most favorable to

Gima, there is a genuine issue of material fact as to whether

Takara, Kurokawa, or Koyanagi could have supervised Gima when

she submitted her reasonable accommodation request in November

2017. See Nozawa v. Operating Eng’rs Loc. Union No. 3, 142

Hawai‘i 331, 333, 418 P.3d 1187, 1189 (2018) (“[HRCP Rule 56(e)]

does not preclude an affidavit from being self-serving, nor does

it require an affidavit to be corroborated by independent

evidence.”).

In sum, the evidence presented by the parties raised a

genuine issue of material fact as to whether the City could have

had Takara, Kurokawa, or Koyanagi supervise Gima without

incurring excessive disruptions or imposing an undue hardship.

Gima also met her burden of establishing that she was qualified

for her BFS position with the reasonable accommodation of a

different supervisor. See HAR § 12-46-187(a) (“It is unlawful

for an employer or other covered entity not to make reasonable

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accommodation to the known physical or mental limitations of an

applicant or employee with a disability who is otherwise

qualified, unless such employer or entity can demonstrate that

the accommodation would impose an undue hardship on the

operation of its business”) (eff. 2012).

3. There is a genuine issue of material fact that Gima was issued a negative performance evaluation and demoted because of her disability.

Gima has also demonstrated a genuine issue of material fact

that she was discriminated against “because” of her disability.

See French, 105 Hawai‘i at 467, 99 P.3d at 1051.

The circuit court determined that Gima did not meet the

third prong of her prima facie disability discrimination claim

because: (1) Gima was “no longer disabled” at the time of her

2018 evaluation; (2) Gima did not establish that Takara knew of

her disability; and (3) even if Takara knew of her disability,

Gima did not establish evidence that her negative review and

demotion were because of her disability.

First, as previously stated, the circuit court erred in

determining that Gima was no longer disabled at the time of her

2018 evaluation and demotion.

Takara, who issued Gima’s substandard evaluation in 2018, and

Koyanagi, who issued Gima’s 2018 demotion and copied Takara,

were both aware of Gima’s disability. “An employer has notice

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of the employee’s disability when the employee tells the

employer that [s]he is disabled.” King v. Steward Trumbull

Mem’l Hosp., Inc., 30 F.4th 551, 563 (6th Cir. 2022) (citations

omitted). An employee need not explicitly use the word

“disabled” or “disability” to put an employer on notice of their

condition; however, an employer must have “enough information

about the employee’s condition to conclude that [an employee] is

disabled.” Id. (citations omitted). “Relevant information

could include, among other things, a diagnosis, a treatment

plan, apparent severe symptoms, and physician-imposed work

restrictions.” Id. at 564 (citations omitted).

Gima has met her burden of establishing a genuine issue of

material fact that her supervisors, including Takara and

Koyanagi, had knowledge of her condition. Takara claimed that

he did not know Gima had a disability. However, Takara also

attested that: (1) he was aware of Gima’s complaints against

Magota (one of which included a disability discrimination

complaint); (2) he knew of Gima’s “pattern of claiming stress

when needing to interact with Magota”; (3) he knew Gima was on

workers’ compensation leave from September 15, 2017 to January

31, 2018; and (4) he was aware that Gima had made an

accommodation request for “someone other than Magota [to]

supervise her[.]”

As to BFS Director Koyanagi, he previously received notice

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of Gima’s March 14, 2016 HCRC complaint in which she alleged

that the City had discriminated against her on the basis of her

disability.

Gima further attested that “[a]ll of [her] supervisor[s]

and other administrators were aware of [her] leave and the . . .

reasons for [her] leave.” Gima also attested,

Many of my colleagues were aware of the symptoms of my condition as I shared my state of mind and anxiety/stress with them. I even sent an email asking them not to be alarmed that my office door would be mostly closed as hearing Magota in his office next to mine provoked my anxiety.

Viewed in the light most favorable to Gima, a reasonable

fact-finder could infer from the evidence that supervisors

Magota, Takara, and Koyanagi were aware of her medical

condition. 4

Third, there is a genuine issue of material fact that

Gima’s substandard review and demotion were because of her

disability rather than her actual performance. See French, 105

Hawai‘i at 467, 99 P.3d at 1051. The close proximity between

Gima’s return from workers’ compensation leave and the

4 At oral argument, the City asserted it had no knowledge of Dr. Davidson’s May 29, 2018 report noting the substantial effect Gima’s major depressive order had on various life activities until Gima filed the instant case. Oral Argument at 46:40-48:56, http://oaoa.hawaii.gov/jud/oa/24/SCOA- 103124-SCAP-XX-XXXXXXX.mp3 [https://perma.cc/WMV5-BSE2]. Even assuming the City was not aware of Dr. Davidson’s report, the record presents sufficient evidence that a genuine issue of material fact exists as to whether Gima’s supervisors knew of her disability. See King, 30 F.4th at 564 (concluding that an employer’s awareness of a medical condition coupled with the employee’s notification of such condition presents a factual issue as to whether the employer knew of the employee’s disability).

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substandard performance evaluation and demotion support a

reasonable inference that the substandard review and demotion

were based on her disability. See Butler v. City of Prairie

Vill., Kan., 172 F.3d 736, 749 (10th Cir. 1999) (“The temporal

proximity of Plaintiff’s request for an accommodation to the

decline in his work evaluations and his supervisors’ complaints

about his work performance contributes to an inference that

Plaintiff’s position was eliminated because of his

disability.”).

The record reflects that Gima was on workers’ compensation

leave because of her anxiety and depression from September 2017

to February 2018. Shortly after she returned from leave in

February 2018, Gima received a negative review from her new

supervisor, Takara. Gima’s declaration stated that she met with

Takara on February 23, 2018, a few weeks after she returned to

work, at which time Takara “criticized” her for “very small

issues, such as typographical errors” and “other issues that

occurred while [she] was out on worker[s’] compensation leave.”

Two months later, Takara gave Gima a substandard evaluation and

Gima was demoted. Gima attested that the evaluation was

unfounded, “undeserved,” and “reflect[ed] a discriminatory

animus against [her].” A reasonable fact-finder could infer

that Takara and Koyanagi knew of Gima’s disability, Takara

issued a substandard review because of Gima’s disability, and

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Gima’s disability was a factor in her demotion.

Thus, Gima has met her burden of establishing a genuine

issue of material fact that there was a causal connection

between her medical condition and leave and her 2018 performance

review and subsequent demotion. See Knodle v. Waikiki Gateway

Hotel, Inc., 69 Haw. 376, 389, 742 P.2d 377, 385 (1987)

(“Inasmuch as causal relation is one of fact, ‘[i]t is [a

question] for the jury, except when the facts are such that they

will support only one reasonable inference.’”) (quoting L.

Green, Rationale of Proximate Cause 132 (1927) (emphasis

original).

4. There is a genuine issue of material fact that the City’s proffered reasons for Gima’s negative performance evaluation and demotion were pretextual.

As Gima has established a prima facie case of disability

discrimination, the burden shifts to the City “to provide a

legitimate, nondiscriminatory reason for the adverse employment

action[.]” Lales v. Wholesale Motors Co., 133 Hawaiʻi 332, 356,

328 P.3d 341, 365 (2014) (quoting Schefke v. Reliable Collection

Agency, Ltd., 96 Hawaiʻi 408, 426, 32 P.3d 52, 70 (2001)). “[I]f

the defendant articulates such a reason, the burden shifts back

to the plaintiff to show evidence demonstrating that the reason

given by the defendant is pretextual.” Id. at 356-57, 328 P.3d

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at 365-66 (quoting Schefke, 96 Hawaiʻi at 426, 32 P.3d at 70).

A “legitimate” reason is defined as “lawful,” or “genuine.”

Adams, 135 Hawai‘i at 15, 346 P.3d at 84 (citing 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,”

and the 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. (citations, quotations, and brackets omitted).

To rebut Gima’s prima facie case, the City proffered Gima’s

alleged poor work performance as the reason for Gima’s

substandard review in 2018 and subsequent demotion. The City

pointed to Gima’s evaluations from 2017 and 2018 that detailed

issues with her work, including her purported unwillingness to

do certain tasks and a tendency to make errors. Takara and

Kurokawa also attested to Gima’s performance issues.

“[T]he 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.” Adams, 135

Hawai‘i at 22, 346 P.3d at 91. In this case, the City’s

proffered reason could be found to be a legitimate, non-

discriminatory reason relating to Gima’s “ability . . . to

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perform the work in question.” See id.

Because the City’s evidence could be construed as

adequately demonstrating a legitimate, non-discriminatory reason

for Gima’s substandard evaluation and demotion, the burden

shifts back to Gima to establish that the City’s reason was

“pretextual.” Lales, 133 Hawaiʻi at 356-57, 328 P.3d at 365-66.

Gima may establish pretext “either directly by persuading the

court that a discriminatory reason more likely motivated the

employer or indirectly by showing that the employer’s proffered

explanation is unworthy of credence.” Id. at 358, 328 P.3d at

367 (quoting Tex. Dep’t of Cmty. Affs. v. Burdine, 450 U.S. 248,

256 (1981)).

The plaintiff can discredit the proffered reasons by demonstrating such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the defendant’s proffered legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence, and hence infer that the defendant did not act for the asserted nondiscriminatory reasons.

Adams, 135 Hawai‘i at 45, 346 P.3d at 114 (Recktenwald, C.J.,

concurring and dissenting) (quoting Anderson v. Wachovia Mortg.

Corp., 621 F.3d 261, 277 (3d Cir. 2010)).

Gima has presented sufficient evidence to establish a

genuine issue of material fact that the City’s proffered reasons

for her demotion were pretextual. See Lales, 133 Hawai‘i at 358-

62, 328 P.3d at 367-71.

Gima presented evidence that contradicts and discredits the

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substandard reviews issued in 2017 and 2018, and she disputes

underperforming at her job. In her declaration, Gima attested

that she was not given adequate supervision while working with

Magota and that many of her supposed inadequacies reflected

assignments that were not solely under her purview. In her

rebuttal to the 2018 performance evaluation, Gima asserted that

Takara blamed her for oversights that were not her

responsibility and that his representations of her performance

were “incomplete.”

The “temporal proximity” of Gima’s return from workers’

compensation leave and the negative review and demotion further

supports her pretext contention. See Lales, 133 Hawaiʻi at 358,

328 P.3d at 367 (concluding that temporal proximity supported

plaintiff’s claim that his termination was pretext for a

discriminatory motive).

Gima’s substandard evaluations began after she filed

complaints against Magota in 2016 and after she filed her

workers’ compensation claim. As to Takara, Gima asserted that

he met with her within a few weeks after she returned from

workers’ compensation leave in 2018 to “criticiz[e]” her for

“issues that occurred while [she] was out on worker[s’]

compensation leave.” The April 2018 review was issued less than

three months after Gima returned from leave and approximately

five months after she requested a reasonable accommodation to

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have an alternate supervisor.

There is also sufficient evidence in the record for a fact-

finder to infer that Magota’s purported discriminatory animus

was imputed to Takara’s 2018 evaluation of Gima under a “cat’s

paw” theory. See Adams, 135 Hawai‘i at 47, 346 P.3d at 116

(Recktenwald, C.J., concurring and dissenting). “[U]nder a

‘cat's paw’ theory an employer may be liable where the plaintiff

can show that an employee with discriminatory animus provided

factual information or other input that may have affected the

adverse employment action.” Id. (quotations and citation

omitted). Gima’s declaration, which attested to Magota’s “bias”

against her, and the 2017 substandard performance reviews, which

Magota issued after Gima returned from workers’ compensation

leave related to her anxiety and major depressive disorders,

create a genuine issue of material fact that Magota exhibited

animosity towards Gima because of her disability. As stated,

the City did not submit a declaration from Magota.

While Magota retired prior to Gima’s April 2018 evaluation

and demotion, there is a genuine issue of material fact as to

whether his purported discriminatory animus could be imputed to

Takara, who issued Gima’s 2018 performance evaluation. Takara

attested that he and Magota had discussed Gima’s complaints

against Magota and her performance while Magota supervised her.

Takara’s 2018 evaluation of Gima also referenced Gima’s

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performance while Magota supervised her. Under these

circumstances, a reasonable fact-finder could infer that

Magota’s evaluations and purported discriminatory animus

affected the April 2018 evaluation issued by Takara, and Gima’s

subsequent demotion.

Based on the evidence adduced, there is a genuine issue of

material fact that Gima’s BFS supervisors knew of her

disability, Gima was subject to an adverse action, and the

adverse employment actions were based on her disability. Gima

has further established a genuine issue of material fact that

the City’s purported reasons for her 2018 review and demotion

were pretextual. Therefore, the court erred in granting the

City’s motion for summary judgment as to Gima’s disability

discrimination claim.

B. Failure to Accommodate

Gima also asserts that the City failed to accommodate her

request for a reasonable accommodation to be supervised by

someone other than Magota, thus violating HAR § 12-46-187(a).

We disagree. Even when viewing the evidence in a light most

favorable to Gima, the record reflects that after she requested

a reasonable accommodation, the City engaged in an interactive

process with Gima that resulted in finding an alternate position

in a different department. Gima does not dispute that the City

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was in the process of transferring her when Magota retired.

The City was not required to provide the exact

accommodation Gima had requested. Therefore, we hold that the

City did not fail to provide a reasonable accommodation and the

circuit court did not err in granting the City’s motion for

summary judgment as to Gima’s reasonable accommodation claim.

Under HAR § 12-46-187(a),

It is unlawful for an employer or other covered entity not to make reasonable accommodation to the known physical or mental limitations of an applicant or employee with a disability who is otherwise qualified, unless such employer or entity can demonstrate that the accommodation would impose an undue hardship on the operation of its business. An employee does not have to specifically request a “reasonable accommodation”, but must only let the employer know that some adjustment or change is needed to do a job because of limitations caused by a disability.

To be entitled to a reasonable accommodation, an employee

must demonstrate they have a disability and are “qualified” for

the position. HAR § 12-46-187(a). A reasonable accommodation

can include “[j]ob restructuring” or “reassignment to a vacant

position.” HAR § 12-46-182; see also Suzuki v. State, 119

Hawai‘i 288, 300, 196 P.3d 290, 302 (App. 2008).

The City argues that even if Gima was entitled to a

reasonable accommodation, the City was not required to

accommodate Gima’s exact request to be assigned a new

supervisor. Further, at the time of Gima’s request, the City

asserts, and Gima does not dispute, that she was enrolled in the

City’s workers’ compensation Priority Placement Program which

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was working on having Gima transferred to a different

department, which would have placed Gima outside of Magota’s

supervision. In response, Gima argues that the City did not

engage in any “interactive process,” as required under HAR §

12-46-187(b), and that the Priority Placement Program was not a

substitute for the required process.

HAR § 12-46-187(b) provides,

To determine the appropriate reasonable accommodation, it shall be necessary for an employer or other covered entity to initiate an interactive process, after a request for an accommodation, with the person with a disability in need of the accommodation. This process shall identify the precise limitations resulting from the disability and potential reasonable accommodations that could overcome those limitations.

HAR § 12-46-187(b) (eff. 2012) (emphasis added).

As discussed, Gima’s request for an alternate supervisor

was not unreasonable as a matter of law, and there is a genuine

issue of material fact as to whether the City could have

reasonably accommodated Gima with another supervisor. However,

an “employer is not obligated to provide an employee the

accommodation [s]he requests or prefers, the employer need only

provide some reasonable accommodation.” Zivkovic v. S. Cal.

Edison Co., 302 F.3d 1080, 1089 (9th Cir. 2002) (citation

While the City was not required to provide the specific

accommodation Gima requested, the City was required to engage in

a good faith interactive process when she requested a reasonable

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accommodation. HAR § 12-46-187(b). Here, the City fulfilled

its obligation. The Ninth Circuit has held that the interactive

process requires: (1) “direct communication between the employer

and employee to explore in good faith the possible

accommodations”; (2) “consideration of the employee’s request”;

and (3) “offering an accommodation that is reasonable and

effective.” Zivkovic, 302 F.3d at 1089 (citation omitted).

In this case, Gima does not establish a genuine issue of

material fact as to whether the City adequately engaged in a

good faith interactive process after she requested a reasonable

accommodation. The evidence presented by both parties shows

that on November 15, 2017, Gima requested a reasonable

accommodation for a different supervisor because she was

medically restricted from working with Magota. The City’s

Department of Human Resources forwarded the request to BFS the

same day. BFS denied Gima’s request on December 5, 2017.

During this time, Gima was enrolled in the City’s workers’

compensation Priority Placement Program, and the City was

working with her in their efforts to find her a position in

another department where she would not be supervised by Magota.

The record demonstrates, and Gima does not dispute, that in

December 2017 the City found Gima a position in the Department

of Transportation Services and that she was in the process of

transferring to that position when Magota retired from BFS.

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Although the Priority Placement Program may have been related to

the City’s workers’ compensation process, it was nonetheless a

substantive interactive process that served the purpose of

finding Gima an alternative and suitable position. At the time,

not being supervised by Magota was Gima’s sole medical work

restriction. After Magota retired, Gima was able to return to

work with Takara as her new supervisor, which accommodated her

work restriction, and therefore Gima did not go forward with the

transfer to the Department of Transportation Services.

In sum, Gima did not demonstrate any genuine issue of

material fact that supports a finding of a breakdown of the

interactive process. Cf. Humphrey v. Mem’l Hosp. Ass’n, 239

F.3d 1128, 1137–39 (9th Cir. 2001) (concluding that plaintiff

sufficiently demonstrated a breakdown in the interactive

process, and, thus the employer failed to provide a reasonable

accommodation). Instead, the record demonstrates that when Gima

requested a reasonable accommodation to work with a supervisor

other than Magota, the City responded and provided her with an

alternate position outside of Magota’s supervision. When Magota

retired, the impetus for Gima’s request for a reasonable

accommodation dissipated and Gima elected to return to her BFS

position under Takara’s supervision. Therefore, the circuit

court did not err in granting the City’s motion for summary

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judgment on Gima’s reasonable accommodation claim.

C. Retaliation

1. Gima sufficiently raised that the City retaliated against her for requesting a reasonable accommodation on November 15, 2017.

Gima contends the City retaliated against her in violation

of HRS § 378-2(a)(2) after she filed two separate HCRC

complaints in 2016 and requested a reasonable accommodation in

November 2017. The circuit court determined that Gima could not

pursue her retaliation claim based on her request for a

reasonable accommodation because Gima failed to raise this claim

and exhaust her administrative remedies with the HCRC and failed

to assert this allegation in her civil complaint. We disagree

and hold that Gima properly raised this claim in her April 2018

HCRC charge and in her civil suit.

Prior to filing her circuit court complaint, Gima was first

required to file her charges for retaliation with the HCRC,

which has jurisdiction over claims brought under HRS Chapter

378. HRS §§ 368-11, 368-12 (2015); see Kellberg v. Yuen, 131

Hawaiʻi 513, 531, 319 P.3d 432, 450 (2014) (“the doctrine of

exhaustion of remedies requires an aggrieved party to exhaust

administrative remedies before seeking judicial review”). Gima

filed two separate charges with the HCRC in 2018. In Gima’s

HCRC complaint filed on April 30, 2018, she asserted both

disability discrimination and retaliation claims stating that

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“[o]n November 15, 2017 [she] requested another accommodation

not to be supervised by Robert Magota” and she was targeted

because of the “harassment and disability discrimination”

complaints and “was subjected to over-scrutinization of [her]

work[.]” In Gima’s HCRC complaint filed on June 14, 2018, she

asserted that she was demoted by the City in retaliation for

filing HCRC charges in March 2016 and November 2016. After the

HCRC issued right to sue letters related to her 2018 HCRC

complaints, Gima timely filed her civil complaint in the circuit

court pursuant to HRS § 368-12.

Employee HCRC complaints are to be construed liberally and

a plaintiff’s civil claims should be considered as reasonably

related to the allegations in the HCRC charges “to the extent

that those claims are consistent with the plaintiff’s original

theory of the case.” French, 105 Hawaiʻi at 476, 99 P.3d at 1060

(quoting B.K.B. v. Maui Police Dep’t, 276 F.3d 1091, 1100 (9th

Cir. 2002) abrogated on other grounds by Fort Bend Cnty., Tex.

v. Davis, 587 U.S. 541 (2019)). Applying the liberal

construction standards set by this court in French, and,

contrary to the circuit court’s determination, we conclude that

Gima’s April 30, 2018 HCRC complaint, in which she checked the

box for both disability discrimination and retaliation and

raised her November 15, 2017 request for a reasonable

accommodation, adequately raised her claim that the City

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retaliated against her for requesting a reasonable

accommodation. Gima also alleged in her civil suit that the

City retaliated against her after she requested a new supervisor

as a reasonable accommodation in November 2017. Because Gima’s

April 2018 HCRC charge is sufficiently “consistent” with the

“theory of the case” laid out in her civil complaint, the court

erred in finding that Gima failed to exhaust her administrative

remedies with the HCRC. Cf. French, 105 Hawaiʻi at 477, 99 P.3d

at 1061 (holding that plaintiff’s gender discrimination claim

was not consistent with her HCRC complaint, which solely

indicated disability and age discrimination).

The circuit court also erred in its determination that Gima

failed to properly plead that the City retaliated against her

for requesting a reasonable accommodation in her civil

complaint. This court has expressly reaffirmed a “liberal”

notice pleading standard. Bank of Am., N.A. v. Reyes-Toledo,

143 Hawaiʻi 249, 263, 428 P.3d 761, 775 (2018) overruled on other

grounds by Wilmington Sav. Fund Soc’y, FSB v. Domingo, 155

Hawaiʻi 1, 556 P.3d 347 (2024). Gima’s circuit court complaint

alleged her request for a reasonable accommodation in her

statement of facts, which she incorporated into her claim for

retaliation. Applying our liberal notice pleading standard,

Gima’s circuit court complaint sufficiently alleged that the

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City retaliated against her for requesting a reasonable

accommodation, and the court erred in finding that Gima could

not pursue this claim. HRCP Rule 8(f) (“All pleadings shall be

so construed as to do substantial justice.”) (eff. 2000).

2. There is a genuine issue of material fact as to Gima’s retaliation claim.

the City’s motion for summary judgment as to Gima’s retaliation

claim based on her two HCRC complaints filed in 2016 and her

request for a reasonable accommodation submitted on November 15,

2017. Gima established a prima facie retaliation claim and

raised a genuine issue of material fact as to whether the City’s

proffered reasons for her negative evaluation and demotion were

pretextual. See Lales, 133 Hawai‘i at 356-58, 328 P.3d at 365-

67.

HRS § 378-2(a)(2) provides “[i]t shall be an unlawful

discriminatory practice” for an employer “to discharge, expel,

or otherwise discriminate against any individual because the

individual has opposed any practice forbidden by this part or

has filed a complaint, testified, or assisted in any proceeding

respecting the discriminatory practices prohibited under this

part[.]” HRS § 378-2(a)(2) (emphasis added).

In order to establish a prima facie retaliation claim, a

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plaintiff must demonstrate,

(a) the plaintiff (i) “has opposed any practice forbidden by HRS chapter 378, Employment Practices, Part I, Discriminatory Practices or (ii) has filed a complaint, testified, or assisted in any proceeding respecting the discriminatory practices prohibited under this part,” (b) his or her “employer, labor organization, or employment agency has . . . discharged, expelled, or otherwise discriminated against the plaintiff,” and (c) “a causal link has existed between the protected activity and the adverse action[.]”

Lales, 133 Hawaiʻi at 356, 328 P.3d at 365 (quoting Schefke, 96

Hawai‘i at 426, 32 P.3d at 70).

If a plaintiff establishes a prima facie case of

retaliation, “the burden shifts to the defendant to provide a

legitimate, nondiscriminatory reason for the adverse employment

action,” and “if the defendant articulates such a reason, the

burden shifts back to the plaintiff to show evidence

demonstrating that the reason given by the defendant is

pretextual.” Id. at 356-57, 328 P.3d at 365–66 (quoting

Schefke, 96 Hawai‘i at 426, 32 P.3d at 70).

Gima’s two complaints to the HCRC in 2016 qualify as

protected activities under HRS § 378-2(a)(2) as does Gima’s

November 15, 2017 request for a reasonable accommodation. HRS §

378-2(a)(2); see e.g., Coons v. Sec’y of U.S. Dep’t of Treasury,

383 F.3d 879, 887 (9th Cir. 2004) (“[Plaintiff] was engaged in a

protected activity when he requested that [the employer] make

reasonable accommodations for his alleged disability.”). Gima

filed a charge with the HCRC in March 2016 and a second charge

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in November 2016. She requested a reasonable accommodation on

November 15, 2017.

There is no dispute that the trial court correctly

concluded that Gima’s April 2018 substandard performance

evaluation and subsequent demotion qualified as adverse acts.

See HRS § 378-2(a)(2); HAR § 12-46-189(a) (“[i]t is unlawful to

. . . take an adverse action against any person because that

person has . . . made a charge . . . to enforce any provision

contained in this subchapter.”).

Here, Gima established a genuine issue of material fact as

to her superiors’ knowledge of the 2016 HCRC charges and

November 2017 request for a reasonable accommodation. Takara’s

declaration attested that “Magota shared with [him] that Gima

. . . launched a number of complaints and grievances against

[Magota]” and Magota “was advised by his superiors and human

resources to be careful if he submitted substandard performance

rating[s] of . . . Gima[.]” Additionally, the 2016 HCRC charges

were sent to BFS with notice to BFS Director Koyanagi, who

issued Gima’s 2018 demotion letter. As for Gima’s reasonable

accommodation request, Takara attested that he was “aware that

Gima had requested that someone other than Magota supervise

her[.]” Further, the City filed a declaration from BFS employee

Jennifer Bishop attesting that the Department of Human Resources

sent a memo to BFS asking whether BFS could accommodate Gima’s

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request for an alternate supervisor, which BFS denied.

There is sufficient evidence in the record to infer a

causal connection between Gima’s protected activities and the

City’s adverse employment acts taken in 2018 that occurred after

Gima filed her complaints in 2016 and after she submitted her

reasonable accommodation request in 2017. There is no per se

rule as to a specific required time period to infer causation

based on temporal proximity. See Coszalter v. City of Salem,

320 F.3d 968, 977–78 (9th Cir. 2003). We find the Ninth

Circuit’s reasoning persuasive and reject a “bright-line rule

about the timing of retaliation” because “[a] rule that any

period over a certain time is per se too long (or, conversely, a

rule that any period under a certain time is per se short

enough) would be unrealistically simplistic.” Id. “Retaliation

often follows quickly upon the act that offended the

retaliator,” Coszalter explained, “but this is not always so.

For a variety of reasons, some retaliators prefer to take their

time[.]” Id. at 978. Sometimes “[t]hey may wait until they

think the lapse of time disguises their true motivation. Id.

“We should be particularly sensitive to this last point, for if

we establish a per se rule that a specified time period is too

long to support an inference of retaliation, well-advised

retaliators will simply wait until that period has passed” and

then “retaliate with impunity.” Id. Therefore, we look to the

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“totality of the facts” to determine whether Gima established a

prima facie case of retaliation. See id.

While the adverse employment acts occurred approximately

two years after Gima filed her March 2016 HCRC complaint and

approximately fifteen months after Gima filed her November 2016

complaint, there is sufficient evidence in the record viewed in

the light most favorable to Gima to establish a causal

connection between the HCRC complaints and the adverse

employment acts. Gima’s first substandard review in the record

was issued in January 2017, which is two months after Gima filed

her November 2016 HCRC charge, and ten months after she filed

her March 2016 HCRC charge.

Further, it can be inferred from Gima’s September 2017

review, which was issued by Magota, that Takara, who issued the

April 2018 substandard review, had worked closely with both

Magota and Gima prior to Gima’s 2017 leave. The September 2017

evaluation referred to Takara as the “superior” with whom Gima

“became argumentative” and noted Gima’s accusations against

Takara asserting he was “being inappropriate” and “critical of

[her].” Gima was placed on workers’ compensation leave shortly

after receiving the September 2017 performance evaluation. Less

than three months after Gima returned to work, Takara issued

Gima’s 2018 substandard performance evaluation and her demotion

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followed.

Similarly, with respect to Gima’s request for a reasonable

accommodation in November 2017, a fact-finder could reasonably

infer that Gima’s November 2017 request and the April 2018

negative evaluation and subsequent demotion were causally

connected. Gima requested to be supervised by someone other

than Magota on November 15, 2017. Less than six months after

making her request, Gima was issued a substandard evaluation and

was subsequently demoted. This occurred within the wider

context of Gima having filed her prior complaints of

discrimination with the HCRC. Further, her substandard review

and demotion were issued within three months after her return

from workers’ compensation leave. Based on the totality of the

circumstances and presented evidence, a reasonable fact-finder

could infer that Gima’s request for a new supervisor, which

Takara attested he had knowledge of, was causally connected to

her 2018 substandard review and subsequent demotion.

The City asserts that even if Gima established a prima

facie retaliation case, there is no genuine issue of material

fact as to whether the City’s non-discriminatory reasons for the

adverse employment acts were pretextual. An employee’s job

performance is considered a legitimate, non-discriminatory

reason for an adverse employment action. Adams, 135 Hawai‘i at

16, 346 P.3d at 85. The City contends Gima was demoted based on

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her poor work performance citing to her substandard performance

reviews issued in 2017 and 2018. The City’s demotion letter

asserted that Gima did not take “responsibility” or “ownership”

of her tasks as a branch leader, and asserted that Gima’s

planning, supervision, job knowledge, quality and quantity of

work, and reliability and initiative were substandard.

Because the City’s proffered reasons for the adverse

employment actions were purportedly related to Gima’s

performance at work, it can be construed that the City

adequately met its burden of demonstrating a legitimate, non-

discriminatory reason for Gima’s 2018 substandard evaluation and

subsequent demotion. The relevant question is whether Gima met

her burden of demonstrating that the City’s reasons for the

adverse employment actions were pretextual. We hold that Gima

has adequately demonstrated a genuine issue of material fact

that the City’s reasons for her substandard review and

subsequent demotion were pretextual.

Similar to proving pretext in a discrimination claim, if an

employer meets its burden of providing a “legitimate,

nondiscriminatory reason” for the adverse employment action, the

burden shifts to the employee to demonstrate that the employer’s

reasons were pretextual. Lales, 133 Hawaiʻi at 356-57, 328 P.3d

at 365-66. In a retaliation claim, an employee can demonstrate

pretext “either directly by persuading the court that a

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discriminatory reason more likely motivated the employer or

indirectly by showing that the employer’s proffered explanation

is unworthy of credence.” Id. at 358, 328 P.3d at 367 (quoting

Burdine, 450 U.S. at 256).

Gima established a genuine issue of material fact as to

whether the performance reviews cited by the City were reliable

and an accurate reflection of her actual performance at BFS.

Gima’s rebuttals to the individual performance reviews asserted

that those reviews were “fabricated,” she “lack[ed] proper

oversight,” the reviews “assign[ed] responsibility and blame” to

her for her administrator’s actions, and when she returned from

leave in February 2018, “Takara did not make any effort to

update [her] as to the status of any ongoing assignments or

projects.”

Further, there is sufficient evidence in the record for a

fact-finder to infer that Magota’s purported retaliatory animus

was imputed to Takara based on a “cat’s paw” theory with Takara

acting as a conduit for Magota’s retaliatory animus. See Adams,

135 Hawai‘i at 47, 346 P.3d at 116 (Recktenwald, C.J., concurring

and dissenting). A fact-finder could reasonably infer that

Magota exhibited retaliatory animus towards Gima. Gima’s 2016

HCRC charges alleged that Magota engaged in disability

discrimination, retaliation, and sex discrimination against her,

and all of the substandard performance reviews in the record

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were issued after Gima filed these two 2016 HCRC charges, with

Magota giving Gima three substandard reviews in 2017. In

Takara’s declaration, he attested that he discussed Gima’s

performance with Magota and was aware of her complaints against

Magota. Takara also attested that Magota had “verbally

explained to [him] that Gima’s substandard performance was fully

justified and felt her possible claims of retaliation or

harassment held little weight[.]” Under these circumstances, a

fact-finder could reasonably infer that Magota’s purported

retaliatory animus was imputed to Gima’s April 2018 performance

review given by Takara. Gima has demonstrated a genuine issue

of material fact as to whether the reviews cited by the City as

evidence of her performance at BFS were pretextual.

VI. CONCLUSION

For the foregoing reasons, the circuit court’s May 22, 2023

Findings of Fact, Conclusions of Law, and Order Granting

Defendant City and County of Honolulu’s Motion for Judgment on

the Pleadings and/or Summary Judgment and June 5, 2023 Judgment

are affirmed in part, and vacated in part. We affirm the

court’s granting of the City’s motion for summary judgment on

Gima’s reasonable accommodation claim to the extent the court

determined that the City engaged in an interactive process and

provided Gima with a reasonable accommodation. We vacate as to

Gima’s disability discrimination and retaliation claims, and

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remand the case to the circuit court for further proceedings

consistent with this opinion.

Joseph T. Rosenbaum, /s/ Mark E. Recktenwald (Elizabeth Jubin Fujiwara, and Marcos R. Bendaña also /s/ Sabrina S. McKenna on the briefs) for for plaintiff-appellant /s/ Todd W. Eddins

Maria C. Cook /s/ Lisa M. Ginoza (Nicolette Winter and William K. Awong also /s/ Vladimir P. Devens on the briefs) for defendant-appellee