CIVIL RIGHTS COMMISSION
STATE OF HAWAII
In the Matter of ) Docket No. 92-003-PA-R-S
)
SHIRLEY MAE SMITH ) FINAL DECISION AND ORDER
on behalf of herself and )
JONATHAN BETTS, her minor son )
)
Complainants )
)
- - - - - - - - - - - - - - - - )
)
MTL, INC.; OAHU TRANSIT )
SERVICES, INC.; DEPARTMENT )
OF TRANSPORTATION SERVICES, )
CITY AND COUNTY OF HONOLULU; )
HONOLULU PUBLIC TRANSIT )
AUTHORITY, CITY AND COUNTY )
OF HONOLULU, )
)
Respondents. )
________________________________)
FINAL DECISION AND ORDER
The Commission heard oral argument on the exceptions and
statements in support of the Hearings Examiner's Findings of Fact,
Conclusions of Law and Recommended Decision (hereinafter referred to
as "H.E.") and the Addendum on October 1, 1993, at 2 p.m., at 250
Punchbowl Street, Room 314, Honolulu, Hawaii. Commissioners Amefil
Agbayani, Daphne Barbee Wooten, Josephine Epstein, Jackie Mahi
Erickson, and Richard Port were present. Present for Complainant
were Karl K. Sakamoto, Esq., and Calleen J. Ching, Esq., and present
for Respondents were Jared H. Jossem, Esq., and Kitty K. Kamaka,
Esq.
The Commission also heard arguments on the Respondents' Motion
to Dismiss the Executive Director's Written Exceptions and on the
Executive Director's Motion to Strike a Portion of Respondents'
Statement in Partial Support.
I.
Preliminary Issues
Respondents' Motion to Dismiss Written Exceptions is based upon
the argument that the Executive Director is not a party to the
proceedings but could have, by motion, intervened to become a party,
and that only parties can file exceptions. Thus, the Executive
Director did not have the right to file exceptions.
The Commission notes that the Executive Director in her
official capacity has filed numerous pleadings with the Hearings
Examiner. See, e.g., Scheduling Conference Statement filed by the
Executive Director on November 2, 1992. The Commission finds that
Respondent was on notice of the Executive Director's involvement
from the outset and throughout the proceedings. The Commission
finds that because of the failure to file a timely objection to the
Executive Director's involvement in the case, Respondents are
estopped from raising the issue at this time. Waimea Falls Park,
Inc. v. Brown, 6 Haw. App. 83 (1985).
The Commission also finds that the statutory duty of the
Commission to provide counsel to present the case in support of the
complaint, H.R.S. 368-14(a), continues through the filing of the
exceptions and presentation of oral argument before the Commission.
The filing of exceptions in the name of the Executive Director
carries out the statutory duty to present the case in support of the
complaint. For these reasons, Respondents' Motion to Dismiss is
denied.
The Executive Director's Motion to Strike a Portion of
Respondents' Statement in Partial Support is based upon the argument
that portions of the statement constitute exceptions and that by
filing them after the deadline, Respondents' have not satisfied the
deadlines established by the rules.
The Commission notes that on August 12, 1993, it granted
Respondents' Motion for Extension of Time to file its exceptions
until September 7, 1993, the original deadline being August 10,
1993. The order also granted the Executive Director an extension to
file exceptions at the same time. The order stated that the
extension to the Executive Director was being granted because "it
would be unfair and possibly prejudicial to require the Director to
file written exceptions well in advance of Respondent's [sic]
exceptions." This indicates that the Commission wanted to ensure
that both exceptions were filed at the same time in order to allow
each party the same amount of time to respond in the support
statements.[1]
The Commission finds that portions of Respondents' support
statement, filed after September 7 when any exceptions were due,
contains points which are in actuality exceptions to the proposed
decision. The Respondents' statement of support which contain
exceptions, Sections A and B, are hereby stricken as being untimely
filed under H.A.R. 12-46-74(a). See, e.g., Ariyoshi v. HPERB, 5
Haw. App. 533 (1985) (failure to file exceptions to proposed
decision forecloses appeal of the issue to court).
II.
FINDINGS OF FACT
None of the parties have filed exceptions to the Hearings
Examiner's Findings of Fact. Having reviewed the record, the
Commission notes that there was an error in Finding No. 2 as to when
OTS, Inc. took over management of TheBus. Instead of January 30,
1991 as stated in the Finding, the City contracted with OTS on
December 30, 1991. The Commission hereby amends the first line of
Finding of Fact No. 2 to read: "On December 30, 1991 the City and
County of Honolulu contracted with Respondent OTS, another private
corporation, to operate TheBus." The remainder of Finding of Fact
No. 2 is unchanged. Except for this change, the Commission hereby
adopts the Findings of Fact in their entirety.
The Commission also adopts in its entirety the procedural
history of the case attached as Appendix A to the Hearings
Examiner's Findings of Facts, Conclusions of Law and Recommended
Order.
III.
STANDARD FOR DETERMINING DISCRIMINATION IN PUBLIC ACCOMMODATIONS
The Commission hereby adopts the Hearings Examiner's Conclusion
of Law that Respondents are subject to Chapter 489 because they are
places of public accommodations. H.E. p. 21.
The Commission hereby adopts the Hearings Examiner's Conclusion
of Law that H.R.S. Chapter 489 prohibits all instances of unfair
discrimination by public accommodations and that a single instance
of discrimination is sufficient to constitute a violation of the
law. H.E. p. 21-24. Respondents' contention that there must be
more than one incident of discrimination by a public accommodation
and its reliance upon employment discrimination cases for this
proposition is addressed by the Hearings Examiner's analysis of the
differences between the singular nature of contact between a
business and its customer and the on-going relationship between
employer and employee.
In this case, there was substantial, uncontroverted direct
evidence of discrimination. If there is direct evidence of
discriminatory intent, the Respondent may (1) rebut such evidence by
proving that the incident did not occur, (2) establish an
affirmative defense, and (3) limit, but not avoid, liability by
showing mixed motives for the adverse action. H.E. p. 28.
In this case, Respondents attempted to establish that there
were mixed motives for the adverse action by trying to prove that
Smith provoked Chong to make racial and sexist epithets and to drive
in a reckless manner. However, MTL, Inc.'s rules which prohibit a
driver from making racist slurs, even if provoked, removed any basis
for finding a mixed motive. All other evidence clearly showed
Chong's discriminatory intent.
At this time, the Commission declines to decide whether to
adopt the Hearings Examiner's "motivating factor" standard or the
"any factor" standard proposed by the Executive Director. The
Commission notes, however, that there may be a future case where it
would have to decide whether to adopt a standard, such as the "any
factor" standard.[2]
IV.
LIABILITY
The Commission hereby adopts the Hearings Examiner's
Conclusions of Law that there is respondeat superior liability for
MTL, Inc., for the driver's conduct, and successor liability for
OTS, Inc. H.E. p 36-39.
V.
REMEDIES
After a careful review of the record and considering the
exceptions, support statements, and oral arguments, the Commission
hereby awards Complainant Smith $30,000 in compensatory damages.
The driver's racist epithets and his behavior are discriminatory,
offensive, and unacceptable in our community and caused the
emotional distress suffered by the Complainant. The Commission also
awards Complainant the cost of three visits to a psychologist, if
she intends to return to Hawaii. In addition, the Commission awards
a civil penalty of $10,000.
In light of the Findings of Fact regarding the driver's
actions, the Commission hereby orders Respondents to take more
appropriate disciplinary action against driver Jarvis Chong
consistent with the findings and this decision. The Commission
believes that the disciplinary actions taken against Mr. Chong were
inadequate even under the company rules in effect at the time.
In all other aspects, the Commission affirms the Hearings
Examiner's Recommended Order and adopts it as the Final Commission
Order.
DATED: Honolulu, Hawaii
Amefil Agbayani, Chairperson
Daphne Barbee-Wooten, Commissioner
Josephine Epstein, Commissioner
Jackie Mahi-Erickson, Commissioner
Richard Port, Commissioner
NOTICE: Pursuant to H.R.S. 91-14, an aggrieved party may
institute proceedings for judicial review in the circuit court
within thirty days after service of the certified copy of the final
decision and order of the Commission.
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footnotes:
1. The Commission order was responding, in part, to a hand
written request filed by Respondents' counsel on August 9, 1993,
which requested an "extension to September 5, 1993, or twenty days
following the Directors [sic] Exceptions, whichever is later." The
Commission did not want to allow Respondents' to file their
exceptions after the Executive Director's exceptions.
2. The Executive Director notes that the Real Property
Transactions Rules recently adopted by the Commission do contain a
rule which appears to adopt the "any factor" test to determining
violations under H.R.S. Chapter 515.
