CIVIL RIGHTS COMMISSION
STATE OF HAWAI'I
WILLIAM D. HOSHIJO, Executive ) DOCKET NO. 97-009-E-P
Director, on behalf of the )
complaint filed by SHAWN M. )
SMITH, ) FINAL DECISION AND ORDER
)
vs. )
TABERU MANAGEMENT, INC. dba RB )
HONOLULU #1, )
)
Respondent. )
________________________________)
FINAL DECISION
This case involves a claim of sex discrimination by Shawn M.
Smith ("Smith"), complainant, against Respondent Taberu Management,
Inc. ("hereinafter TMI"). Smith alleged that TMI had discriminated
against her because of her sex, which includes pregnancy and child
birth, when it refused to reinstate her after she completed
maternity leave and then terminated her.
The Hearings Examiner's Findings of Fact, Conclusions of Law
and Recommended Order ("Recommended Decision") was filed on June
26, 1998. The Recommended Decision found that TMI had violated
H.R.S. sec. 378-2, which prohibits sex discrimination in employment,
and H.A.R. sects. 12-46-107 and 108. H.A.R. sec. 12-46-107(b) provides
that an employer may not discharge an employee "because she
requires time away from work for disability due to and resulting
from pregnancy, childbirth, or related medical conditions." H.A.R.
sec. 12-46-108(c) requires an employer to reinstate an employee after
maternity leave "to her original job or to a position of comparable
status and pay, without loss of accumulated service credits and
privileges."
The Recommended Decision found that TMI's reasons for not
reinstating Smith and terminating her were unsupported by the
record. Although its fast food restaurant franchise was being sold
to settle a lawsuit, there was nothing in the settlement agreement
to preclude TMI from reinstating Smith to her original position as
the general manager of the restaurant. The employee occupying her
position was willing to resign in order to let Smith return, and
Smith was willing to accept less pay and a lower position if
allowed to return. There was evidence that the decision to let her
go was made because management felt it would be "easier" to do so
because "she was already on leave."
The Recommended Decision found that Smith was entitled to
backpay of $27,438.94 for loss of income during when she was
without a job, the difference in pay after she found a job, and
incurred medical expenses. The Recommended Decision found that
Smith suffered significant emotional distress as a result of her
non-reinstatement and termination and awarded her $60,000.00 in
compensatory damages. During almost ten months of unemployment,
Smith became stressed, depressed, and withdrawn. Her family was
under great financial strain because of purchasing a new home and
her husband's disability. For several months, she and her two
children, including the newborn, had no medical insurance. She
applied for welfare and received food stamps. She defaulted in her
mortgage payments and would have lost the home but for help from
her grandmother. In addition, TMI management refused to write her
a letter of recommendation unless she signed a "hold harmless"
form. The Recommended Decision ordered TMI to provide affirmative
relief, if it returns to do business in the State.
On July 9, 1998, the Executive Director filed a Statement
Concerning Recommended Order Filed 6/26/98, stating that no
exceptions would be filed and supporting the Recommended Decision
in its entirety. TMI did not file written exceptions. No party
requested an opportunity to present oral argument. Under H.A.R.
sec. 12-46-57, if no written exceptions are filed, the Commission is
required to issue a written Final Decision and Order, either
adopting or modifying or reversing, in whole or in part, the
Recommended Decision.
Upon consideration of the Recommended Decision and the record,
the Commission hereby adopts and incorporates the Findings of Fact,
Section II, in the Final Decision. The Commission hereby adopts
and incorporates the Conclusions of Law, Sections III A, B, C, and
D, in the Final Decision. Commissioner Claudio Suyat, chair of the
Commission, did not participate in the decision due to illness.
ORDER
The Commission hereby adopts and incorporates the Recommended
Order in the Final Decision and Order.
DATED: Honolulu, Hawaii
Jack Law
Commissioner
Allicyn Hikida Tasaka
Commissioner
Faye Kennedy
Commissioner
Harry Yee
Commissioner
Notice: Under H.R.S. sec. 368-16(a), a complainant and respondent
shall have a right of appeal from a final order of the Commission
by filing an appeal with the circuit court within thirty (30) days
after service of an appealable order of the Commission.
