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Arquero v. Hilton Hawaiian Village LLC6/10/2004
FOR PUBLICATION
Plaintiff-appellant Madonna P. Arquero appeals from the first circuit court's February 22, 2001 final judgment in favor of Hilton Hawaiian Village LLC and Hilton Hotels Corporation [hereinafter collectively, Hilton]. Based on the following, we vacate the circuit court's final judgment and remand for further proceedings.
I. BACKGROUND
In March and April 1998, Madonna P. Arquero and German Rodas worked as waitstaff in Hilton's Rainbow Lanai Restaurant. On March 29, 1998, Assistant Manager Zaiton Short (Assistant Manager Short) passed by the restaurant's open kitchen doors and observed Rodas stand behind Arquero and squeeze her right buttock for approximately one second. [Hereinafter, the March 29, 1998 incident will be referred to as "Incident #1."] Assistant Manager Short heard Arquero say "Stop it" and saw Arquero push Rodas's hand away. Assistant Manager Short told Arquero that she had seen what Rodas had done; Arquero asked Assistant Manager Short to tell Rodas not to do it again. Assistant Manager Short spoke with Rodas near the end of Rodas's shift; she stated in an affidavit that " told Rodas that had observed his offensive actions and that his conduct was clearly inappropriate and would not be tolerated. warned him that if he engaged in that sort of behavior a second time, he would receive a written warning. Rodas indicated to that he understood." Assistant Manager Short also stated in her affidavit that, prior to Incident #1, she had neither observed nor heard of any inappropriate conduct between Arquero and Rodas.
On April 22, 1998, Assistant Manager Short again saw Rodas stand behind Arquero and squeeze her buttock for one to two seconds. [Hereinafter, the April 22, 1998 incident will be referred to as "Incident #2."] Arquero turned and hit Rodas and called him "'stupid, rude[.]'" Assistant Manager Short told Rodas that she had seen what he had done and that she would speak with him later. Later that day, Rodas was suspended pending investigation; he remained on suspension until he was terminated on May 7, 1998. Arquero went on disability leave on April 23, 1998 and returned to work at Hilton on July 11, 1999.
After Incident #2, Assistant Manager Short had a discussion with Arquero. According to Arquero, Assistant Manager Short told Arquero the following: when she (Assistant Manager Short) spoke with Rodas on March 29, 1998 regarding Incident #1, Rodas told her to hurry up, that he was going on break, that Assistant Manager Short was going to have to pay him overtime if she wanted to speak with him, and that Rodas did not take her seriously.
On October 28, 1998, Arquero filed a complaint against Hilton and Rodas. The complaint sought relief on the following grounds: (1) sexual harassment in violation of HRS § 378-2 (Supp. 1998); (2) negligent supervision; (3) sexual assault and battery; (4) infliction of emotional distress; and (5) invasion of privacy. The complaint also sought punitive damages. Hilton moved for summary judgment on August 21, 2000; Hilton argued that it was entitled to summary judgment because (1) Incident #1 was not severe or pervasive enough to constitute sexual harassment, and (2) even if Incident #1 did constitute actionable sexual harassment, Hilton's response was reasonably calculated to end the harassment. Hilton therefore argued that Arquero's claims of negligent supervision, invasion of privacy, and intentional infliction of emotional distress failed as to Hilton. Hilton also argued that the negligent supervision claim was barred by the exclusivity of benefits provision of HRS § 386-5 (1993) and that the sexual assault, battery, and infliction of emotion distress claims were barred
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