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French v. Hawaii Pizza Hut9/30/2004
tness or evidence unless required to do so under the discovery Rules or by court order. Of course, he must respond if required to do so; but he need not also depose his witnesses or obtain their affidavits to defeat a summary judgment motion asserting only that he has failed to produce any support for his case.
477 U.S. at 328 (White, J., concurring); see also Anderson, 834 F. Supp. at 1368.
As pointed out by the Anderson court, the movant in Celotex had taken the affirmative step, in its interrogatories, of asking the clinching question in discovery, and had received a favorable answer, and pointed out the plaintiff's implicit admission to the Court. Anderson, 834 F. Supp. at 1368 (distinguishing Celotex, 477 U.S. at 320). Accordingly, the movant made a "show[ing of] the absence of any genuine issues as to all material facts." GECC Fin. Corp., 79 Hawaii at 521, 904 P.2d at 535 (emphasis added). In the present case, however, Pizza Hut has made no such showing, and did not even argue that Appellant had no evidence to prove whether her lifting restriction was a "substantial limitation" of a "major life activity," as compared to the average person. See Celotex, 477 U.S. at 328 (White, J., concurring) ("It is not enough to move for summary judgment without supporting the motion in any way or with a conclusory assertion that the plaintiff has no evidence to prove his case.").
The dissent concedes that Appellant's obligation to establish by "comparative evidence that her impairment renders her . . . unable to perform . . . a major life activity in comparison to the 'average person in the general population,'" dissent at 6, is contingent upon the absence of a genuine issue of material fact with respect to whether the weight limitation on her lifting activity substantially impaired a major life activity "by [its very] nature." Dissent at 3. The record, however, reflects just such a genuine issue of material fact. Thus, the dissent errs in concluding that Pizza Hut "discharged its burden by 'pointing out' the absence of any evidence indicating that Appellant's ability to lift was restricted in comparison to the average person in the general population." Dissent at 7 n.2. Moreover, it is worth noting that Pizza Hut did not move for summary judgment on such grounds. On the issue of whether Appellant's lifting restriction was substantially limiting to a major life activity, Pizza Hut solely argued that Appellant's "lifting restriction, as a matter of law, does not constitute a disability within the meaning of the Hawaii's disability law." (Emphasis added.) At no point, in its motion for summary judgment or in its reply memorandum, does Pizza Hut argue that Appellant's claims should be dismissed for failing to produce comparative evidence regarding the issue of whether Appellant's lifting restriction was "substantially limiting." And even if Pizza Hut, in its motion for summary judgment, had challenged the sufficiency of evidence in this regard, the threshold genuine issue of material fact was sufficient to defeat Pizza Hut's motion.
Whether Appellant's "major life activity" was "substantially limited," and whether Appellant's impairment was chronic or temporary, are questions of fact which, on the record, were not resolved. See supra page 17. Only after Pizza Hut "satisfies its initial burden of production" should the "burden shift" to Appellant "to respond . . . and demonstrate specific facts" in opposition. GECC Fin. Corp., 79 Hawaii at 521, 904 P.2d at 535. This court has explained that "any doubt concerning the propriety of granting the motion should be resolved in favor of the non-moving party." Id. (citations omitted). For the reasons discussed herein, Pizza Hut has not satisfi
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