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Steinberg v. Hoshijo6/18/1998
bsence of "a clearly expressed legislative intention to the contrary, [the language of the statute] must ordinarily be regarded as conclusive." Kaiama v. Aguilar, 67 Haw. 549, 553, 696 P.2d 839, 842 (1985) (citation omitted). Accordingly, we hold that the HCRC did not exceed its statutory authority under HRS § 368-13(b) and HAR § 12-46-12(f) by granting four extensions of the investigation into Gould's complaint. Thus, the Executive Director's reasonable cause determination as to the existence of unlawful discriminatory conduct was timely made.
B. The Hearings Examiner Did Not Abuse Her Discretion In Ordering That Gould's Deposition Be Taken By Telephone.
Dr. Steinberg next claims that the hearings examiner abused her discretion in ordering that Gould be deposed via telephone conference instead of in person.
Pursuant to HAR § 12-46-32 (1990), a hearings examiner is empowered "to allow and supervise discovery as deemed reasonable and necessary." In the instant case, Hearings Examiner Wang treated the Executive Director's February 12, 1996 motion dually--as a motion for a protective order, pursuant to HRCP Rule 26(c) (1990), and as a motion to have Gould's deposition taken by telephone pursuant to HRCP Rule 30(b)(7) (1990). Upon a finding of good cause, Hearings Examiner Wang ordered that should Dr. Steinberg elect to take Gould's deposition, it would be by telephone conference. To allow Steinberg's attorneys to evaluate Gould as a witness, Hearings Examiner Wang further ordered that, during the deposition, Gould should utilize a speaker phone and "videotape herself listening to and answering the questions propounded to her during the deposition and . . . look at the video camera while listening and responding to the questions."
The record evinces that there was good cause for Hearings Examiner Wang to order that Gould be deposed via telephone rather than in person. At the time her deposition was noticed, Gould was residing in California and had already made plans to take leave from work to attend the contested case hearing the week of April 1, 1996. Gould was unable to take additional leave from work in order to travel to Hawai'i to attend the deposition, and neither she nor the HCRC had funds to pay for a trip to Hawai'i to attend a deposition.
Dr. Steinberg nonetheless surmises that, "if a face-to-face deposition had taken place, the credibility of the witness could have been more fully ascertained. As it stood the witness/accuser was able to increase substantially the specificity of her case from the time of inception to the hearing." However, the fact remains that, in the end, it was Dr. Steinberg who opted not to have Gould deposed at all. Thus, it is impossible for the court to assess the nature of any prejudice Dr. Steinberg may or may not have suffered as a result of the order for a telephonic deposition. We therefore reject Dr. Steinberg's contentions.
C. There Was Sufficient Evidence To Support The HCRC's Decision.
HRS § 378-2(1)(A) provides in pertinent part:
Discriminatory practices made unlawful; offenses defined. It shall be an unlawful discriminatory practice:
(1) Because of race, sex, sexual orientation, age, religion, color, ancestry, disability, marital status, or arrest and court record:
(A) 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[.]
Pursuant to HAR § 12-46-1
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