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Pied 2 Final Order

CIVIL RIGHTS COMMISSION

STATE OF HAWAI'I

 

WILLIAM D. HOSHIJO,
Executive Director, on behalf
of the complaint filed by
BRUCE PIED,

      and

BRUCE PIED,

      Complainant-Intervenor,

      vs.

ALOHA ISLANDAIR, INC.,

      Respondent.

 

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 Docket No. 98-007-E-D

 

FINAL DECISION AND ORDER
WILLIAM D. HOSHIJO,
Executive Director, on behalf
of the complaint filed by
BRUCE PIED,

      and

BRUCE PIED,

      Complainant-Intervenor,

      vs.

ALOHA ISLANDAIR, INC.,

      Respondent.

 

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Consolidated with
Docket No. 98-008-E-D-RET

 

 


FINAL DECISION AND ORDER


I. INTRODUCTION

Complainant-intervenor Bruce Pied ("Pied") is a licensed commercial aviation pilot. He has monocular vision and can see with only one eye. Despite this impairment, the Federal Aviation Agency ("FAA") has tested his vision on a regular basis and approved him to fly commercial aircraft.(1) His ability to fly safely has never been an issue in these proceedings.

In July 1990, Pied applied for a job with Respondent Aloha Islandair, Inc. ("Islandair"). He had prior experience flying the same type of aircraft flown by Islandair. After being accepted to its August 1990 pilot training program, Pied informed Islandair of his monocular vision. Islandair then withdrew the offer and has continually rejected his attempts to be hired.

Pied filed a complaint of disability discrimination with the Commission. Islandair sought to block the investigation by filing an action in federal court. On appeal, the Ninth Circuit Court of Appeals found that "Islandair has a policy of not hiring monocular pilots," 128 F.3d 1301, 1302 (9th Cir. 1997), and allowed the investigation to continue.

After the investigation, the Executive Director found reasonable cause to believe that Islandair had discriminated against Pied because of his disability. A contested case hearing was scheduled, and Pied intervened. The Hearings Examiner issued a series of recommended decisions which concluded that Islandair had discriminated against Pied because of his disability and awarded compensatory and punitive damages as well as back pay and front pay. The parties filed written exceptions to and statements in support of the recommended decisions and requested oral argument.

The Commission heard arguments on March 6, and November 2, 2000. Present at both hearings were Commissioners Harry Yee, Faye Kennedy, Allicyn Hikida Tasaka, and June Motokawa. Commissioner Jack Law was present at the first hearing and listened to the tape recording of the second hearing.(2) The case in support of the complaint was presented by Enforcement Attorney Cheryl Tipton representing the Executive Director William D. Hoshijo. Pied was represented by David Simons. Islandair was represented by Richard Rand. The Commissioners considered the parties' exceptions and statements in support, heard oral argument, and considered portions of the record cited by the parties.

II. THE COMMISSION HAS THE POWER TO REMAND THE CASE FOR FURTHER PROCEEDINGS



After extensive hearings, the Hearings Examiner filed, Findings of Fact, Conclusions of Law and Recommended Order ("First Decision"), on May 28, 1999, and Supplemental Findings of Fact, Conclusions of Law and Recommended Order(3) ("Second Decision"), on November 29, 1999. The First and Second Decisions determined that Pied had been discriminated against because of his disability and awarded him compensatory damages, back pay, and punitive damages. The Second Decision left open the specific amount of front pay.

On March 10, 2000, after oral argument, the Commission remanded the case for a second time to determine the specific amount of front pay that Pied would be entitled to receive as requested in the first remand order. Islandair claims that the Commission did not have the power to remand the case after oral argument, citing HAR §12-46-56, which provides that after oral argument "[t]he commission shall issue a written final decision and order, either adopting, modifying, or reversing, in whole or in part, the hearings examiner's decision[.]"

The Commission finds there are two bases for ordering a remand. First, the Commission has the power to remand the case in order to modify the Hearings Examiner's decision under HRS § 368-3(2) which empowers the Commission "[t]o hold hearings and make inquiries, as it deems necessary, to carry out properly its functions and powers," (emphasis added), and to "delegate these powers to any member of the commission or any person appointed by the commission for the performance of its functions." In order to provide a full and fair opportunity for all parties to be heard on the amount of front pay, the Commission ordered further hearings and delegated this to the Hearings Examiner.(4)

Second, the Commission's obligation to issue a final decision and order, HRS § 368-14(a); HAR §12-46-56, provides authority to remand the case. A "'[f]inal order' means an order ending the proceedings, leaving nothing further to be accomplished. [A]n order is not 'final' if the rights of a party involved remain undetermined or if a matter is retained for further action." Gealon v. Keala, 60 Haw. 513, 520, 591 P.2d. 621 (1979)(citations omitted.) If the Commission adopted the front pay recommendation in the Second Decision, it would have to retain jurisdiction over the case for several years. The Commission could not issue a final decision because Pied would have to submit his yearly earnings to determine if there was any amount for Islandair to pay. Thus, the Commission had the power to remand the case after oral argument.

III. THE EXECUTIVE DIRECTOR'S EXCEPTIONS FILED ON SEPTEMBER 29, 2000



After the remand, the Hearings Examiner filed Second Supplemental Findings of Fact, Conclusions of Law and Recommended Order ("Third Decision"), on August 21, 2000. All parties, including the Executive Director, filed written exceptions. The Executive Director took exception to the finding that Pied was entitled to receive attorneys' fees as the whole of the punitive damages award because they were greater than the amount of punitive damages ($100,000) awarded in the Second Decision. Islandair has challenged the Executive Director's power to file exceptions because he was not "adversely affected" as required by HAR §12-46-43.

Previously, the Executive Director took exception to the limitation on punitive damages. Executive Director's Exceptions, filed on January 14, 2000. Islandair did not object. In order to maintain "a uniform procedure for the enforcement of the State's discrimination laws," HRS § 368-1, it is important that the Commission receive the Executive Director's views on the proper interpretation of Commission statutes and rules. If the Executive Director disagrees with an interpretation of a Commission statute or rule in a recommended decision but is not an "aggrieved party," the Commission hereby finds there is good cause to allow the Executive Director to file a memorandum(5) as an amicus curiae, without having to obtain an order.(6)

IV. FINDINGS OF FACT

A. CREDIBILITY

Islandair claims that Pied cannot be believed because he lied for material gain, stole his training records at Mahalo Airlines and lied about doing so, and misrepresented his flight hours. Pied claims that Islandair has consistently misrepresented the record, particularly whether it had a policy against hiring monocular pilots despite admitting so in federal court. The Executive Director claims that Islandair's attack upon Pied's credibility is an attempt to obscure its discriminatory policies and credibility is not an issue when there is direct evidence of discrimination.

The First Decision found that: 1) despite stealing his records, Pied was credible when he testified about the sequence and content of his interactions with Islandair; 2) Islandair tried to cover up its discriminatory practices by concocting different reasons for not hiring Pied; and 3) its employees were not credible. The Hearings Examiner had the opportunity to observe the demeanor of witnesses and consider the conflicts in testimony in determining credibility. Steinberg v. Hoshijo, 88 Hawai`i 10, 960 P.2d 1218 (1998). The Commission hereby adopts the finding(7) that Pied was credible and that Islandair and its employees were not credible. First Decision, at 22.

B. ISLANDAIR'S POLICY AGAINST MONOCULAR PILOTS

Islandair claims that it did not have a policy against hiring monocular pilots. It claims that Pied was not hired because he interviewed badly, failed to hand deliver his application, and listed no recommendations. Pied claims that Islandair admitted in federal court that it had a policy against monocular pilots and still has such a policy. The Ninth Circuit found that "Islandair has a policy of not hiring monocular pilots." 128 F.3d at 1302. The First Decision found that Islandair had a policy against monocular pilots and applied such policy against Pied at least through July 1991. First Decision, at 22. Islandair rescinded its offer to attend flight school immediately after Pied disclosed his monocular condition. Id. In January 1991, Pied was told by Bill Ernst, Islandair's chief of pilots, that Islandair would not hire monocular pilots. Id. In March 1991, Islandair's Vice-President told Pied that Islandair would not hire him because he was monocular. Id. After May 1991, Ernst did not forward Pied's resume to the hiring committee because he was monocular. Id. at 23.

The Commission hereby adopts the First Decision, Facts 6-14, 16, and 18-22 that Islandair had a policy against hiring monocular pilots and such policy is still in effect.(8)

C. BACK PAY CALCULATIONS

Islandair claims that the jump seat benefits Pied received from Rich Air and Polar Air should be included as part of his past earnings. Second Decision, Fact 35 did not include any benefits for 1995-96 and 1999-2000, when he worked for those airlines. However, Third Decision, Fact 35 (amended) includes benefit amounts for those years and addresses Islandair's concern. Islandair also claims that in Fact 35 (amended) Pied's projected earnings for 1999 were miscalculated. However, at the second remand hearing, it did not submit any expert witness testimony on the issue to counter Pied's expert. The Commission hereby adopts Third Decision, Facts 35 (amended) and 38 (amended).

Third Decision, Fact 39 (amended), which sets forth Pied's back pay, is the difference between Third Decision, Facts 35 (amended) and 38 (amended). There appear to be some computational errors. Third Decision, Fact 39 (amended) is hereby amended as follows:

39. Complainant's past lost earnings, the federal and state taxes on such lost earnings and his past lost benefits are therefore as follows:

period lost
earnings

 

taxes		 lost
benefits
8-31-90 to 12-31-90 2,031 56 6,609
1-1-91 to 12-31-91 6,226 861 13,617
1-1-92 to 12-31-92 3,477 551 13,745
1-1-93 to 12-31-93 15,284 1,773 13,367
1-1-94 to 12-31-94 12,735 2,443 11,941
1-1-95 to 12-31-95 26,160 4,176 10,120
1-1-96 to 12-31-96 21,872 4,572 7,528
1-1-97 to 12-31-97 33,180 5,958 15,565
1-1-98 to 12-31-98 -5,495 -1,227 14,346
1-1-99 to 12-31-99 29,877 6,651 16,654
1-1-00 to 4-30-00 8,451 1,209 5,654

 



Because of the changes to Third Decision, Fact 39 (amended), Third Decision, Fact 39A is hereby amended as follows:

39A. Complainant's annual after tax loss amounts, the cumulative loss amounts and the statutory interest on such cumulative loss amounts are as follows:

period annual
loss		 cumulative
loss		 10% annual
interest
8-31-90 to 12-31-90 8,584 8,584 858
1-1-91 to 12-31-91 18,982 27,566 2,757
1-1-92 to 12-31-92 16,671 44,237 4,424
1-1-93 to 12-31-93 26,878 71,115 7,112
1-1-94 to 12-31-94 22,233 93,348 9,335
1-1-95 to 12-31-95 32,104 125,452 12,545
1-1-96 to 12-31-96 24,828 150,280 15,028
1-1-97 to 12-31-97 42,787 193,067 19,307
1-1-98 to 12-31-98 10,078 203,145 20,315
1-1-99 to 12-31-99 39,880 243,025 24,303
1-1-00 to 4-30-00 12,896 255,921 25,592
totals: 255,921 141,576



D. REMAINING FINDINGS OF FACT



Islandair's exceptions to the remaining facts are not supported by the evidence. The Commission hereby adopts First Decision, Facts 1-5, 15, 17, 23-34, and the Chronology of Case, Second Decision, Facts 36-37, and Third Decision, Facts 34A-F, 40, and 41.

V. CONCLUSIONS OF LAW

A. TIMELINESS OF PIED'S COMPLAINT

Islandair claims that the Commission does not have jurisdiction because Pied did not file a complaint until August 22, 1991, which is more than 180 days after he was denied a position in August and/or November 1990. Pied and the Executive Director claim that the complaint was timely because there was a continuing violation. Alternatively, they argue that Pied submitted a pre-complaint questionnaire ("PCQ"), which constitutes a filed complaint pursuant to HAR §12-46-6(b), on February 11, 1990, which was within 180 days of Islandair's first refusal to hire.

The First Decision concluded that there was a continuing violation because of Islandair's policy against hiring monocular pilots and that Pied had filed a timely complaint within 180 days. The facts showed that Pied mailed updated resumes from June 1990 to July 1991 and that Islandair refused to hire him because he was monocular. Fact 20. Islandair's withdrawal of the invitation to attend flight school occurred after Pied disclosed his monocular condition. Fact 8. Despite Pied having had experience flying the same type of plane, Facts 4-5, Islandair offered positions to persons with less qualifications. Facts 10-11. The Commission hereby adopts First Decision, Conclusion of Law ("Conclusion") A, 1, a, that Pied filed a timely complaint because there was a continuing violation resulting from Islandair's policy against hiring monocular pilots.

Under HAR §12-46-6(b), a PCQ may be deemed to be a filed complaint if it is written and "sufficiently precise to identify the parties and describ[e] with reasonable accuracy the action or practices alleged to be unlawful." The Hearings Examiner did not deem the PCQ to be a filed complaint because Pied did not intend to activate the Commission investigatory process when he submitted it. Under the facts of this case, the Commission hereby adopts First Decision, Conclusion A, 1, b, that the pre-complaint questionnaire was not a timely filed complaint.

B. JURISDICTION OVER ISLANDAIR AS AN EMPLOYER

Islandair has more than one employee and is an employer under HRS § 378-1. The Commission hereby adopts First Decision, Conclusion A, 2.

C. DISABILITY DISCRIMINATION

Although he cannot see with one eye, Islandair claims that Pied is not disabled(9) because he was not substantially limited in his ability to see. It claims that there was no evidence to support the conclusion that he cannot perceive the depth of the objects that are very close to him. Pied claims that not being able to see out of one eye constitutes a per se substantial limitation on seeing. He notes that medical studies show that monocular vision results in a reduced field of vision and lack of binocular depth perception, which are substantial limitations on seeing.

Islandair also claims that it did not regard Pied as having an impairment which substantially limited his ability to see.(10) Pied claims that Islandair's president and chief pilot both testified that persons with one eye were substantially limited in their ability to see and both believed that "two eyes were better than one." In discovery, Islandair stated that "it does not believe that the essential job functions of a pilot can be performed by someone who does not have 20/20 corrected vision in both eyes."

The First Decision concluded that Pied was a person with a disability because the loss of sight is a physical impairment which curtailed Pied's ability to see in an important or essential way by reducing his peripheral vision and taking away his ability to see three dimensionally. It also concluded, in the alternative, that Islandair regarded Pied has having an impairment which substantially limited the major life activity of seeing. The First Decision concluded that there was direct evidence of discriminatory intent by Islandair's withdrawal of its offer to attend flight school and its statements about not hiring monocular pilots. It also concluded that there was circumstantial evidence of disability discrimination.

The Commission hereby adopts First Decision, Conclusion B, 1, a, that Pied was disabled. Pied's impairment resulted in a 15% reduction in his peripheral vision and the loss of the ability to see three dimensionally. These are substantial limitations on his ability to see.(11) The Commission hereby adopts, in the alternative, First Decision, Conclusion B, 1, b, that Islandair regarded Pied having a disabling impairment. The chief pilot's testimony that a monocular person's vision might not be as good as that of a binocular person supports this conclusion. Ex. 80, p.30.

The Commission hereby adopts First Decision, Conclusion B, 1, c, d, e, that Pied was qualified; there was direct evidence of discriminatory intent; and Islandair did not present any affirmative defenses or mixed motives for its actions. The Commission hereby adopts First Decision, Conclusion B, 2, a, b, c, that there was circumstantial evidence that Islandair had discriminated against Pied. The Commission hereby adopts First Decision, Conclusion C, that Islandair is liable for violating HRS § 378-2.

D. REMEDIES

The Decisions recommended that Pied be placed in a first officer pilot position at Islandair, awarded back pay of $566,295.00, yearly front pay(12) based upon the difference between Pied's actual income and his projected income (if he had not been denied employment because of his disability), compensatory damages of $150,000, reasonable costs of $21,402.62, and reasonable attorneys' fees of $121,745.30, but no punitive damages because attorney's fees were greater than the punitive damages amount of $100,000.00. Equitable relief included ordering Islandair to 1) cease and desist from its policy and practice of refusing to consider and/or hire monocular pilots who have received first class medical certificates, 2) adopt and post a written non-discrimination policy based on disability, 3) train its managers on the policy, and 4 publish the results of this case in a newspaper.

The Commission hereby adopts First Decision, Conclusion D, 1, that Pied should be placed in the next Islandair ground school class that includes first officer pilots. The Commission hereby adopts First Decision, Conclusion D, 2, that Pied is entitled to back pay and awards him back pay of $567,228.00,(13) based upon Fact 39, as amended herein.

Because the Commission orders his instatement in the next ground school class but cannot require Islandair to grant him seniority,(14) Pied cannot be made whole for Islandair's discriminatory conduct. He has lost many years of advancement opportunity in the airline industry. Fact 34. Because Pied has made it clear that he seeks to work in Hawaii in order to be close to his family, it would be unfair to only allow instatement without compensating him for his reduced earning capacity. The Commission changes the term "front pay" to damages for lost earnings capacity. The Commission hereby adopts First Decision, Conclusion D, 3, that Pied is entitled to damages for lost earnings capacity but does not adopt the recommendation that it be paid on a yearly basis. The Commission hereby adopts Third Decision, Conclusion III, B, that his position with Polar Air is not comparable or substantially equivalent to working with a national airline in Hawaii and that Pied is entitled to damages of $471,435.00, as the present value of his lost earnings capacity. The Commission hereby adopts First Decision, Conclusion III, D, 4, that Pied is entitled to $150,000.00 as compensatory damages for injury to his feelings, emotions, and mental well-being.

The Commission hereby adopts First Decision, Conclusion III, D, 5, that Pied is entitled to punitive damages because there is clear and convincing evidence that Islandair acted with malice or reckless indifference to its obligations under the employment discrimination law by maintaining a policy against hiring monocular pilots and/or attempted to conceal or cover-up its discriminatory practices. The detailed discussion in the First Decision shows that Islandair admitted in federal court litigation that it had such a policy, 128 F.3d 1302, and applied it to deny him employment. The Commission hereby concludes that this constitutes clear and convincing evidence that Islandair acted with reckless indifference to its obligations under the law to not discriminate on the basis of disability. The Commission also concludes that there is clear and convincing evidence that Islandair deliberately attempted to cover up and conceal its discriminatory conduct.

The First Decision, Conclusion III, D, 6, concluded that attorneys' fees could not be awarded in addition to punitive damages, that attorney's fees must either be the whole of the punitive damage award or a portion of the total award. The Third Decision, Conclusion III, D, awarded Pied his attorneys' fees of $121.745.30, as the whole of the punitive damages award.

The Commission declines to adopt First Decision, Conclusion III, D, 6. Under HRS § 368-17(a),

[t]he remedies ordered by the commission ... under this chapter may include compensatory and punitive damages and legal and equitable relief, including, but not limited to: ... (9) [p]ayment to the complainant of all or a portion of the costs of maintaining the action before the commission, including reasonable attorney's fees and expert witness fees, when the commission determines the award to be appropriate[.]



(Emphasis added.) The statute recognizes that the Commission may award various remedies, including punitive damages and reasonable attorneys' fees "for maintaining the action before the commission." This last section is qualified by the proviso, "when the commission determines the award to be appropriate."

The Commission believes that it is authorized by HRS § 368-17(a)(9) to award both punitive damages and attorneys' fees if warranted by the facts. The statute does not preclude awarding both remedies. Each remedy has different proof requirements. A party has a heavy burden of proof to be awarded punitive damages. On the other hand, attorneys' fees must be reasonable, appropriate, and incurred in maintaining the action before the Commission.

Under the First and Third Decisions, a complainant is not entitled to receive any attorneys' fees unless it can prove entitlement to punitive damages. The Commission believes that it is anomalous to impose this additional requirement given the existence of a specific statutory provision on attorneys' fees. If it was not there, a complainant would still have to prove punitive damages in order to receive attorneys' fees. Thus, the Commission believes that the specific inclusion of this remedy and the proviso that it may be given "when the commission determines the award to be appropriate," HRS § 368-17(a)(9), provides authority to award both punitive damages and attorneys' fees. The Commission hereby awards reasonable attorneys' fees of $121.745.30 and adopts Second Decision, Conclusion III, C, that Pied should be awarded $100,000.00 in punitive damages.

The Commission hereby adopts Third Decision, Conclusion D, that Pied is entitled to costs of $21,402.62. The Commission hereby adopts First Decision, Conclusion D, 7, setting forth the equitable relief.

VI. ORDER

Based upon the foregoing, the Commission concludes that Islandair committed an unlawful discriminatory practice in violation of HRS § 378-2 when it failed to hire Pied as a pilot on the basis of his disability. The Commission hereby orders that:

  1. Islandair immediately employ Pied as a first officer in the next ground school class;

     

  2. Islandair pay Pied back pay in the amount of $567,228.00;

     

  3. Islandair pay Pied damages of $471,435.00 for lost earnings capacity;

     

  4. Islandair pay Pied damages of $150,000.00 as compensation for injury to his feelings, emotions, and mental well-being;

     

  5. Islandair pay Pied punitive damages of $100,000.00;

     

  6. Islandair pay Pied reasonable attorneys' fees of $121,745.30;

     

  7. Islandair pay Pied reasonable costs of $21,401.62;

     

  8. Islandair cease and desist from implementing and maintaining its current policy of refusing to consider and/or hire monocular pilots who have an FAA vision waiver to their first class medical certificates and adopt a written non-discrimination policy based on disability within 90 days of this order;

     

  9. Islandair conduct training of all its management employees on the non-discrimination policy within 90 days of its adoption;

     

  10. Islandair post such policy on employee bulletin boards throughout Islandair's work sites; and

     

  11. Islandair publish a Public Notice regarding the case (Attachment 1(15) to the First Decision) in a newspaper published in the State of Hawaii having a general circulation in the City and County of Honolulu within 30 days of this order.


Dated: Honolulu, Hawai'i: November 22, 2000



HARRY YEE, CHAIRPERSON



FAYE KENNEDY, COMMISSIONER

 



ALLICYN HIKIDA-TASAKA, COMMISSIONER

 



JUNE MOTOKAWA, COMMISSIONER

 





CONCURRING AND DISSENTING OPINION OF COMMISSIONER JACK LAW


I agree and concur with all the Findings of Fact, Conclusions of Law, and Remedies awarded by the Commission, except that I wish to dissent only on the amount of punitive damages, which I believe should be $50,000.00.


Dated: Honolulu, Hawai'i: November 22, 2000



JACK LAW, COMMISSIONER

 

NOTES

1. Pied has a first class medical certificate with a waiver for his monocular vision. He meets the FAA medical requirements for captains or pilots in command on commercial airlines. Finding of Fact 3, Findings of Fact, Conclusions of Law and Recommended Order, May 28, 1999.

2. Declaration of Jack Law, filed on November 21, 2000.

3. On June 3, 1999, before oral argument on the First Decision, the case was remanded to determine the amounts of back pay, front pay, punitive damages, attorneys' fees, and costs.

4. The first remand, which Islandair does not challenge, requested a calculation of front pay. However, the Second Decision did not include any front pay amount. The Commission should be allowed to correct this oversight by remanding the case a second time even after oral argument.

5. The memorandum should be filed at the same time with any exceptions in order to allow the opposing party to respond in a statement in support. HAR §12-46-54.

6. See, Rule 28(g), Rules of Appellate Procedure ("The attorney general may file a brief amicus curiae without order of the court in all cases where the constitutionality of any statute of the State of Hawaii is drawn into question.")

7. To the extent that any findings of fact also contain conclusions of law, they shall be deemed incorporated into the conclusions of law.

8. In September 1991, Lawrence Cabrinha, Islandair president, established a formal policy of not hiring monocular pilots which is still in effect. Fact 22.

9. HRS § 378-1 defines "disability" as "the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an impairment, or being regarded as having such an impairment."

10. Islandair also claims that it is inconsistent to conclude that a person is both actually disabled and regarded as being disabled because the definitions are mutually exclusive.

11. The Commission's administrative rules, though not applicable to this case because of their effective date, are instructive because they are "declaratory of existing law." HAR §12-46-181. Under the rules, mitigating measures are not considered in determining whether an impairment substantially limits a major life activity. HAR §12-46-182(5)(definition of "substantially limits.")

12. Third Decision provided a present value lump sum amount for Pied's front pay as $471,435.00.

13. Pied's total annual back pay after taxes is $255,921.00; and his total prejudgment interest is $141,576.00. The taxes on this total is $169,731.00.

14. Under the collective bargaining agreement, Islandair cannot give Pied any seniority. Thus, the Commission is unable to require that Pied's position be "upgrad[ed]." HRS § 368-17(a)(1).

15. The notice should be modified in accordance with this decision regarding damages for lost earnings capacity and punitive damages.
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