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Marshall v. University of Hawaii12/9/1991
OPINION OF THE COURT BY HEEN, J.
This is an appeal by Plaintiff-Appellant Michael D. Marshall (Marshall) from a summary judgment entered in favor of Defendants-Appellees University of Hawaii (UH), Paul Kopecky (Kopecky), Edward J. Kormondy (Kormondy), and Charles M. Fullerton (Fullerton). The dispositive question is whether Marshall should have been accorded time for discovery prior to any ruling on Defendants' motion to dismiss or for summary judgment (Motion). We answer yes as to a part of Count I and as to Counts III, IV and V, and vacate the judgment as to those counts; however, we answer no and affirm the judgment as to Counts II, VI, and VII.
I.
On October 28, 1988, Marshall, then an assistant professor in the College of Arts and Sciences at the UH Hilo campus (UH Hilo), filed an application for tenure and promotion (tenure application). At that time, Kormondy was Chancellor, Kopecky was Dean of Student Services, and Fullerton was Dean of the College of Arts and Sciences at UH Hilo. Marshall's tenure application was in accordance with a memorandum from Fullerton to the faculty establishing deadlines for processing tenure applications. According to Fullerton's memorandum, the deadline for an application to be routed through the tenure review process to Kormondy was March 10, 1989. The terms of Marshall's employment were governed by a collective bargaining agreement entitled "1987-89 Agreement Between the University of Hawaii Professional Assembly and the Board of Regents of the University of Hawaii" (Agreement).
On March 1, 1989, Kopecky, in accordance with his duties under the UH Hilo "Policy Statement on Sexual Harassment" (Policy) promulgated by the Chancellor of UH Hilo, interviewed a female UH Hilo student who complained of sexual harassment by Marshall in October 1984. Kopecky determined that "good cause" existed to investigate the complaint. Kormondy also interviewed the student and agreed with Kopecky's assessment.
Kopecky initiated an informal investigation and interviewed Marshall on March 30, 1989. Marshall admitted engaging in romantic activity with the student in her home, but denied that his actions were unwanted or unwelcome. Kopecky told Marshall that he was investigating two complaints against Marshall. Marshall requested the names of the complainants and copies of their written statements. Kopecky would not reveal the names and told Marshall there were no written complaints because the investigations were still in the informal stage.
Kopecky was not able to resolve the complaints because of the conflicting accounts and because he did not have access to any medical or police records. However, after his meeting with Marshall, he felt there was factual support for the first student's complaint and recommended a formal investigation. On the basis of advice from the State Attorney General, Kopecky recommended to Kormondy that a private investigator be engaged to conduct a formal investigation and a committee be appointed to review the results of the investigation. Upon Kormondy's instruction, Fullerton retained an investigator and organized a committee.
On May 12, 1989, Fullerton provided Marshall with a statement of the complaint, but not a statement from the complainant. On the same day, Kormondy informed Marshall by letter that if the "formal" hearing was not completed by May 24, 1989, the date on which promotion and tenure recommendations were required to be transmitted to the UH Board of Regents (Board), Marshall's probationary period would be extended for one year.
On May 22, 1989, Marshall filed a grievance in accordance with the agreement alleging that Kormondy did not properly evalu
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