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Arquero v. Hilton Hawaiian Village LLC6/10/2004
because Rodas was acting outside the scope of his employment when he grabbed Arquero's buttock. In her memorandum in opposition to Hilton's motion for summary judgment, Arquero conceded that (1) the negligent supervision claim and the intentional and negligent infliction of emotional distress claims were barred by HRS § 386-5, and (2) the claims for invasion of privacy, and sexual assault and battery were not committed within the scope of Rodas's employment.
On October 31, 2000, the circuit court, the Honorable Colleen Hirai presiding, granted Hilton's motion for summary judgment. The circuit court granted the motion as to Arquero's claim for sexual harassment because, " eviewing the totality of circumstances and evidence in the light most favorable to Plaintiff, genuine issues of material fact have not been presented to demonstrate that the initial touching incident was sufficiently severe to constitute sexual harassment." The circuit court ruled that Arquero's claim for negligent supervision was barred by HRS § 386-5 and that Arquero's claim for sexual assault and battery was barred because the assault and battery was outside the scope of Rodas's employment. The circuit court further concluded that Arquero's claims for negligent and intentional infliction of emotional distress and invasion of privacy failed based on the grant of summary judgment on Arquero's sexual harassment and sexual assault claims; similarly, the circuit court determined that Arquero's request for punitive damages failed based on the dismissal of the other claims against Hilton. The circuit court entered final judgment in favor of Hilton on February 22, 2001.
Arquero appealed to this court on March 21, 2001. On appeal, Arquero argues that the circuit court erred by concluding that Incident #1 was not sufficiently severe so as to constitute actionable sexual harassment. In her reply brief, Arquero also argues that Hilton's actions in response to Incident #1 were not reasonably calculated to end the harassment.
II. STANDARD OF REVIEW
We review the circuit court's grant or denial of summary judgment de novo. Hawaiì Community Federal Credit Union v. Keka, 94 Hawaii 213, 221, 11 P.3d 1, 9 (2000). The standard for granting a motion for summary judgment is settled:
ummary 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 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. In other words, we must view all of the evidence and the inferences drawn therefrom in the light most favorable to the party opposing the motion.
Id. (citations and internal quotation marks omitted).
Coon v. City and County of Honolulu, 98 Hawaii 233, 244-45, 47 P.3d 348, 359-60 (2002) (alteration in original).
III. DISCUSSION
A. Elements Of A Claim For Sexual Harassment Pursuant To HRS § 378-2.
This court recently clarified the elements of a hostile environment sexual harassment (HESH) claim pursuant to HRS § 378-2:
n order to establish a HESH claim, the claimant must show that: (1) he or she was subjected to sexual advances, requests for sexual favors, or other verbal or physical conduct or visual forms of harassment of a sexual nature; (2) the conduct was unwelcome; (3) the conduct was severe or pervasiv
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