Ahodra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII



LINDA C. TSEU, Executive ) Docket No. 94-002-E-D
Director, on behalf of )
the complaint filed by ) HEARINGS EXAMINER'S
HAWAIILOA KALIMA AHO; ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW
v. ) AND RECOMMENDED ORDER;
) APPENDIX A; ATTACHMENT 1
DEPARTMENT OF PARKS AND )
RECREATION, CITY AND COUNTY )
OF HONOLULU. )
)
Respondent. )
______________________________)


HEARINGS EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDED ORDER


I. INTRODUCTION
1. Chronology of Case
The procedural history of this case is set forth in the
attached Appendix A.
2. Summary of the Parties' Contentions
The Executive Director alleges that Complainant Hawaiiloa Aho
(hereinafter "Aho") was a contract employee of Respondent City and
County of Honolulu first as a part-time park aide and later as a
full time groundskeeper. The Executive Director asserts that
Complainant was a qualified person with a disability who applied
for a full time civil service groundskeeper position and that
Respondent City and County of Honolulu (hereinafter "City")
violated H.R.S.  378-2 when it: a) failed to hire Complainant
based on an incorrect determination that Complainant posed a
direct threat to the health and safety of himself; b) used
medical criteria which were not bona fide occupational
qualifications to screen out Complainant; c) retained Complainant
as a contract instead of a full time civil service groundskeeper
because of his disability; and d) ended its employment of
Complainant because of his disability.
Respondent City contends that: 1) Complainant had been hired
as a contract employee; 2) Complainant applied for a full time
civil service groundskeeper position; 3) Respondent tentatively
offered Complainant the position but required him to take a post
offer medical examination; 4) Respondent lawfully withdrew its
offer of full time civil service employment because the results of
the medical examination showed that Complainant posed a direct
threat to the health and safety of himself; 5) Respondent
lawfully withdrew its offer of full time civil service employment
because Complainant could not meet medical criteria which were
bona fide occupational qualifications; and 6) Respondent was not
required to renew Complainant's contract once it expired.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, the Hearings Examiner hereby renders the following
findings of fact, conclusions of law and recommended order.

II. FINDINGS OF FACT[1]
1. Complainant Hawaiiloa Aho is a 52 year old man who has
lived in Hauula, Hawaii for over 20 years. (Tr. at 14, 18)[2]
2. Respondent City is a municipal corporation and a
political subdivision of the State of Hawaii. Respondent City
owns numerous public parks on the island of Oahu. Its Department
of Parks and Recreation is responsible for the maintenance of
these parks.
3. Respondent City usually hires employees through its
civil service process. Persons seeking civil service positions
must apply with the Department of Personnel, become certified by
that department and be placed on an eligibility list. All persons
offered civil servant positions are required to take and pass a
medical examination administered by the City's Department of
Health. (Tr. at 122-123, 125)
4. The Revised Charter of Honolulu allows Respondent City
to also hire employees on a contract basis when there is an
immediate need to fill temporary work. Under Charter  6-303,
department divisions are allowed to recruit, interview and select
employees without going through the civil service process.
Persons offered contract positions involving "heavy physical
effort" work are also required to take and pass a medical
examination administered by the City's Department of Health. (Tr.
at 124-125; Ex. 10 p. 18-20)
5. In 1980, Respondent City contracted with Occu-Med
Corporate Health Services to develop comprehensive pre-employment
medical standards for all its civil service positions. These
medical standards are contained in a manual titled "City and
County of Honolulu Health Assessment Program". The medical
standards are utilized with position physical effort analyses,
which are descriptions of a job's physical work that are developed
by the departments. Between 1980-1992, these medical standards
were applied to all post offer medical examinations. Since the
passage of the Americans With Disabilities Act (ADA) in 1990,
Respondent City has been in the process of revising these
standards. (Tr. at 314-317, 320; Exs. K, G.)
6. In 1989, the medical standard for asymptomatic coronary
artery disease[3] stated:
Acceptable if evaluated by a Treadmill Stress Test and is
certified by cardiologist as capable of performing the
expected work tasks, unless the requirements of the job
exceed:
a. 4 on static strength
b. 3.5 on explosive strength
c. 4 on dynamic strength
d. 4 on trunk strength
e. 3.5 on stamina

(Ex. G)


7. In 1989, the medical standard for hypertension

(controlled) stated:

Acceptable, provided the individual is free of limiting end
organ damage or complications, and is under knowledgeable
medical surveillance and cleared for employment.
Severe hypertension with or without evidence of heart
disease and cerebral, renal or retinal vessel changes,
is not acceptable.

Irreversible cardiac hypertrophy of unexplained
etiology is not acceptable.
(Ex. G)
8. In August 1988, Complainant visited some friends who
were working at Kualoa Regional Park. One friend, Albert Albeso,
asked Complainant if he was interested in working as a park aide
for Respondent City. Complainant stated that he was interested.
Albeso had Complainant fill out an application for a park aide
contract position in the District IV (Waimanalo to Mokuleia)
region. Complainant was later interviewed and recommended for
hire by a panel of groundskeeper supervisors. (Tr. at 23-24; Ex.
10 p. 15)
9. Park aides are required to perform the following
duties: clean restrooms once a day, pick up and bag litter, clean
recreation buildings, water and maintain planted areas, request
repairs and perform other duties as requested. In July 1990 the
position title "park aide" was changed to "groundskeeper" even
though the job duties remained the same. Respondent City has
separate crews which mow large areas of grass, collect garbage or
trim trees. Therefore, park aides/groundskeepers are not required
to perform these duties. (Tr. at 34-38, 40-46, 128; Ex. 9 at 40;
Ex. 10 at 23-27; Ex. I)
10. Because the part-time park aide contract position was
considered to involve "heavy physical effort" work, Complainant
was required to take a medical examination. On September 13, 1988
a doctor under contract with the Department of Health conducted a
medical examination on Complainant and found the following
conditions:
a. height - 5'8"
b. weight - 229 lbs.
c. blood pressure - 140/98
d. glucose - 141 mg
e. cholesterol - 266 mg

(Ex. Q)

11. Complainant's examination results were reviewed by
Dr. John Hall, Chief of Health Services for Respondent City. As
Chief of Health Services, Dr. Hall reviews medical examination
results and determines whether applicants are medically qualified
for the positions sought. Dr. Hall determined that Complainant
was 42 lbs. overweight, had elevated blood pressure, had abnormal
blood lipids and had an abnormal electrocardiogram. Dr. Hall
concluded that these conditions created some significant medical
risks of harm to Complainant in the performance of the park aide
duties. However, Dr. Hall felt that such risks could be reduced
if Complainant sought and received treatment for the above
conditions. Dr. Hall placed Complainant's application in a
"disposition pending" category and instructed Complainant to
obtain further medical evaluation and treatment from his private
physician. (Tr. at 312-313, 332-335; Ex. 12 at 36, Ex. 13 at 38-
40).

12. Complainant's family doctor referred Complainant to
Dr. Steven Azuma, a cardiologist, for examination and treatment.
Dr. Azuma is the Chief of Cardiology at Kuakini Hospital and the
Director of the Critical Care Unit at Castle Medical Center.
Dr. Azuma was board certified in internal medicine in 1984 and
board certified in cardiology in 1985. (Tr. at 51, 182-183)
13. On September 26, 1988 Dr. Azuma reviewed the City's
medical examination results, performed a physical examination on
Complainant and obtained Complainant's medical history. Dr. Azuma
found that Complainant had no symptoms of heart disease, such as
chest pains, shortness of breath or dizziness. Dr. Azuma also
conducted a thallium treadmill stress test and an echocardiogram
on Complainant. Based on Complainant's medical history, physical
exam and tests results, Dr. Azuma concluded that Complainant had
hypertension (sustained high blood pressure), hypercholesterolemia
(elevated cholesterol), hypertrophy of the left ventricle
(thickened left heart chamber) and probably had coronary artery
disease (cholesterol build up and blockage in one blood vessel).
(Tr. at 53, 186-187, 190, 192-193, 233; Ex. 13 attachment 6)
14. Severe hypertension and hypercholesterolemia may cause
organ damage, heart attack, stroke, blindness or kidney damage.
Coronary artery disease may cause heart attacks. Treatment of
these conditions through medication, refraining from smoking,
change in diet and exercise may slow the progress of coronary
artery disease and help prevent organ damage. (Tr. at 234-236,
300)
15. Dr. Azuma examined and treated Complainant every other
week until December 10, 1988 and periodically through January
1994. Because Complainant couldn't afford to buy medications, Dr.
Azuma gave Complainant sample medications to lower Complainant's
blood pressure. Dr. Azuma also encouraged Complainant to stop
smoking, watch his diet and lose weight. Complainant took the
medications and followed Dr. Azuma's advice. He lost weight and
was in better control of his blood pressure. (Tr. at 52-54, 193-
194; 230-231)
16. Based on Complainant's evaluation and treatment by
Dr. Azuma, on November 10, 1988 Dr. Hall found complainant to be
medically qualified for the part-time park aide position. (Tr. at
335; Ex. 13 at 46)
17. From November 18, 1988 to June 30, 1989 Complainant
worked as a part-time park aide (19 hours per week) in the
District IV park region. He cleaned restrooms, mowed small areas
of grass, picked up and bagged garbage, raked, trimmed and pulled
weeds and checked camping permits at various parks. Complainant's
supervisors felt that he was one of their best workers. He never
missed a day of work, completed all his tasks and did not appear
to have any health problems. (Tr. at 34-38, 40-46, 56-57; Ex. 10
at 21, 29-30, 33-34).
18. In June 1989 Complainant's supervisors encouraged him
to apply for a full time civil service groundskeeper position.
Complainant submitted an application, was certified for the
position, was interviewed and scored highest among the applicants.
Complainant was offered the full time civil service groundskeeper
position contingent upon passing the City's medical examination.
(Tr. at 140-141, 145)
19. The duties written in the full time civil service
groundskeeper position description are broader in scope than the
duties written in the full time contract groundskeeper position
description. However, in practice full time civil service
groundskeepers perform the same duties as part time contract
groundskeepers. Furthermore, supervisors have the discretion to
assign groundskeepers to certain parks and/or certain duties.
Complainant could have been assigned to the same parks and same
duties he held as a contract groundskeeper. (Tr. at 48-49, 390-
391; Ex. 10 at 17, 22-23; Ex. J)
20. The physical effort analysis for groundskeeper
positions states that the job, inter alia, requires the following
functions:
heavy lifting, 45 pounds and over
heavy carrying, 45 pounds and over
pushing (2 hours)
walking (8 hours)
repeated bending (4 hours)
ability for rapid mental and muscular coordination
simultaneously

and is performed, inter alia, in the following environment:

outside and inside
excessive heat
working alone

(Ex. J)
21. Complainant was given a medical examination for the
full time civil service groundskeeper position on July 21, 1989.
The following conditions were found:
height - 5'8"
weight - 215 lbs.
blood pressure - 138/88
glucose - 122 mg
cholesterol - 214 mg

(Ex. Q)

22. Dr. Hall also reviewed Complainant's July 21, 1989
medical examination results. He determined that Complainant was
24 lbs overweight, had an elevated fasting blood sugar level, had
an abnormal lipid profile, had an abnormal treadmill stress test
and had an abnormal electrocardiogram. Dr. Hall concluded that
Complainant had coronary artery disease, diabetes mellitus,
hypertension and was obese. Dr. Hall knew that Complainant could
physically perform the essential groundskeeper job duties.
However, he determined that Complainant had a very high, immediate
risk (95% chance) of suffering a heart attack, stroke or other
physical injury even sitting still. Dr. Hall then concluded that
Complainant did not meet the City's medical standards for the full
time civil service groundskeeper position. This determination was
based on: a) the full time civil service groundskeeper position
physical effort analysis given to him by the Department of Parks
and Recreation; b) the medical standards contained in the City's
Health Assessment Program; c) Complainant's medical history and
the results of Complainant's physical examination; d) different
medical studies on cholesterol, blood pressure and echocardiograms
and ejection fractions that Dr. Hall had read; and e) Dr. Hall's
view that any risk that can lead to immediate harm medically
disqualified an applicant for a civil service job. (Tr. at 339-
340, 345, 362-369, 372-374; Ex. 12 at 49-54; Exs. J, K)
23. Based on Dr. Hall's determination, on July 25, 1989,
Respondent City's Department of Personnel wrote to Complainant
stating that he did not meet the medical requirements of the
groundskeeper position. The letter also stated that Complainant
could submit additional information regarding his condition from
his private physician. (Ex. L)
24. On August 3, 1989 Dr. Azuma called Dr. Hall to discuss
the results of Complainant's July 21, 1989 medical exam and
Dr. Hall's assessment that Complainant had an imminent and
immediate risk of having a heart attack. Dr. Azuma disagreed with
Dr. Hall's assessment. On August 4, 1989 Dr. Azuma wrote to
Respondent City stating that Complainant's blood pressure and
cholesterol levels were improving and asked the City to defer its
medical disqualification of Complainant. (Tr. at 195-196, 369-
372; Ex. 13 at 54-56; Ex. L)
25. On August 9, 1989 Dr. Hall notified the Department of
Personnel Services and the Department of Parks and Recreation that
Complainant was still not medically qualified for the full time
civil service groundskeeper position. He also stated that he
would reconsider qualifying Complainant if Complainant lost more
weight, gained better control of his lipids and lowered his blood
pressure and blood sugar levels. By letter dated August 11, 1989
the City's Department of Personnel notified Complainant that he
had not met its medical standards and had been removed from the
civil service eligibility list. The letter also encouraged
Complainant to reapply for the civil service groundskeeper
position after meeting medical standards. (Ex. 13 at 56-58)
26. After being notified that Complainant Aho was not
medically qualified for the full time civil service groundskeeper
position, Melvin Murakami, the Department of Parks and Recreation
personnel officer, spoke to Dr. Hall about retaining Complainant
as a contract groundskeeper. This was because Complainant was a
very good worker and the Department hoped that Complainant would
eventually meet the City's medical standards and be hired as a
civil servant. Dr. Hall allowed Complainant to continue
employment as a contract worker. (Tr. at 148-151; Ex. 9 at 36-37)
27. Complainant was employed as a part time (19 hours/week)
contract park aide from July 1, 1989 to June 30, 1990 (1 year);
and as a part time (16 hours/week) contract groundskeeper from
July 1, 1990 to December 2, 1990 (5 months) in the same District
IV region. In December a civil service groundskeeper at Ahuimanu
Playground went out on medical leave and Complainant was hired to
replace him as a full time contract groundskeeper until March 2,
1991 (3 months). (Tr. at 130-132; Ex. 9 at 40; Ex. 10 at 35-37)
28. Some time in February 1991 Murakami and District IV
superintendent Richard Ushijima decided not to renew Complainant's
contract because they felt that Complainant would never pass the
City's medical examination for the civil service groundskeeper
position. If Complainant had passed the City's medical
examination, the Department would have immediately hired him as a
civil service groundskeeper. Complainant's supervisor later told
Complainant that because of his medical condition, he would no
longer be hired as a groundskeeper. (Tr. at 58-59, 169-170; Ex. 9
at 42)
29. On February 14, 1991, Complainant went to Dr. Azuma for
reevaluation. Based on his examination of Complainant,
Complainant's description of his job duties, and the fact that
Complainant had successfully performed these duties without any
symptoms of heart disease, Dr. Azuma wrote to Respondent City on
February 21, 1991 stating that Complainant could perform the full
time civil service groundskeeper duties without harm to himself.
(Tr. at 199-200; Ex. 25)
30. Despite receipt of Dr. Azuma's February 21, 1991
letter, Dr. Tom Taira, chief of Respondent City's Division of
Health Services, still found that Complainant did not meet medical
standards. By letter dated March 6, 1991 Respondent City's
Department of Personnel notified Complainant that it was
sustaining its determination that he did not meet medical
standards for the groundskeeper position. (Ex. L)
31. Prior to losing his position with Respondent City,
Complainant had been a very responsible, hard working and self
reliant person. Complainant quit school at age 16 to work on
Johnston Island to in order to support his orphaned siblings. He
returned to Hawaii, worked at various construction jobs and lived
on the beach until he saved up enough money to buy his house in
Hauula. He worked and supported his wife and two daughters.
Complainant felt very hurt about losing his groundskeeper job with
the City. He is constantly upset and loses sleep about finding
another job. Since March 1991, he has lived off his savings,
which recently ran out. Presently, his daughters support him and
he feels badly about this. He feels stress about paying his
mortgage and bills, and worries about losing his house. (Tr. at
14-18, 62-68)
32. It is difficult to predict whether and when a person
with Complainant's conditions will have a heart attack. Dr. Azuma
estimates that Complainant presently has a 10% chance of having a
heart attack within 5 years. (Tr. at 204, 236-237, 239-241, 291)
33. On March 16, 1994, Dr. Hall wrote to Dr. John Cogan
and asked Dr. Cogan to perform an independent medical evaluation
on Complainant to determine whether Complainant could perform the
full time civil service groundskeeper duties without "undue
immediate health risks to himself and without undue risk to the
safety or health of others". (Ex. R)
34. Dr. Cogan has been a cardiologist with the Queen's
Medical Center since 1978. He was board certified in internal
medicine in 1976 and board certified in cardiology in 1978. (Ex.
S)
35. Dr. Cogan reviewed the materials sent to him by Dr.
Hall. On March 18 and 23, 1994 Dr. Cogan had Complainant take an
echocardiogram and a thallium treadmill test, respectively. On
April 20, 1994 Dr. Cogan conducted a medical examination of
Complainant and found that Complainant had no symptoms of heart
disease. Based on the materials provided, the results of the
thallium treadmill test, Complainant's medical history and
Dr. Cogan's examination of Complainant, Dr. Cogan determined that
Complainant has hypertension, hypertrophy of the left ventricle,
hypercholesterolemia, coronary artery disease, is obese and
possibly has a valve aneurism (expanded heart valve that can
rupture). (Tr. 276-277, 280-281, 283-286, 290, 294-295, 301-303;
Ex. T)
36. Dr. Cogan estimates, and I find, that in performing the
full time civil service groundskeeper duties Complainant has:
an approximately 7-1/2% chance of having a heart attack per year;
an approximately 3% chance of having a stroke per year; and an
approximately 1% - 3% chance of rupturing a heart valve per year.
(Tr. at 301-306)
37. A person who does not have Complainant's conditions has
a 0% - 1% chance of having a heart attack per year. (Tr. at 239,
300)
38. After March 2, 1991 Complainant sought employment with
several construction companies he had previously worked for.
However, upon learning that Complainant could not pass the City's
medical examination for groundskeepers, these construction
companies refused to hire him. Complainant also applied for a
park position with the State of Hawaii, but there were no job
openings. Since his employment with the City, Complainant has
been doing yard work for a neighbor and earns $50 per month. (Tr.
at 60-62, 68-69)III. CONCLUSIONS OF LAW[4]

A. Jurisdiction
1. The Complaint
At the contested case hearing, Respondent City moved, inter
alia, to dismiss the complaint as untimely. Specifically,
Respondent argues that the complaint was filed on August 7, 1991,
more than 180 days after Complainant was denied the full time
civil service groundskeeper position.
H.R.S.  368-11(c) states that:
No complaint shall be filed after the expiration of one
hundred eighty days after the date:
(1) Upon which the alleged unlawful discriminatory practice
occurred; or
(2) Of the last occurrence in a pattern of ongoing
discriminatory practice.
The evidence shows that the complaint was filed within 180
days after the last occurrence in a pattern of ongoing
discriminatory practice. Respondent City initially notified
Complainant that he was not medically qualified for the full time
civil service groundskeeper on August 11, 1989. Yet, Respondent
retained Complainant as a contract groundskeeper, hoping that his
condition would improve so he could qualify and be hired as a
civil service groundskeeper. Respondent City did not finally
disqualify Complainant from the civil service and contract
groundskeeper positions until it failed to renew his contract
after March 2, 1991. Therefore, I conclude that the denial of the
civil service position was an ongoing discriminatory practice
which ceased on March 2, 1991. See, Ross v. Stouffer Hotel
Company Ltd., Inc. Supreme Court of Hawaii No. 16486 (August 30,
1994), 1994 WL 465895 (filing date for administrative complaints
commences on actual day of discharge, not on day notice of
discharge is received). The complaint was filed within 180 days
of March 2, 1991. The Commission therefore has jurisdiction over
the complaint.
2. Complainant Aho
Respondent City also alleges that H.R.S. Chapter 378 does not
apply to Complainant because he was a contract employee. It
argues that once Complainant's contract expired, he had no right
to renewal of such contract.
The argument mischaracterizes the law and facts of this case.
Under H.R.S.  378-1, "employment" means ". . . any service
performed by an individual . . . under any contract of hire . . ."
Complainant was a contract employee, not an independent
contractor.[5] He is therefore protected from discriminatory
practices under H.R.S. Chapter 378. Respondent City cannot refuse
to employ him, even as a contract employee, because of his
disability. Furthermore, the evidence shows that the only reason
why Complainant was a contract employee was because Respondent
City placed him in such position until he could medically qualify
for the civil service position. As discussed above, this was an
ongoing discriminatory practice.
3. Respondent City
H.R.S.  378-1 defines "employer" to mean
. . . any person, including the State or any of its
political subdivisions and any agent of such person,
having one or more employees, but shall not include the
United States.

Respondent City is a political subdivision of the State having one
or more employees. I therefore conclude that Respondent is an
employer under H.R.S.  378-1 and is subject to the provisions of
H.R.S. Chapter 378.


B. Disability Discrimination
H.R.S.  378-2(1)(A) makes it an unlawful discriminatory
practice for any employer to refuse to hire, discharge or
otherwise unequally treat an individual because of that
individual's disability.
This Commission recently adopted administrative rules on
disability discrimination, H.A.R. Chapter 12-46, Subchapter 9,
 12-46-181 through 12-46-196. Although these rules became
effective on August 18, 1994,  12-46-181 states that Subchapter 9
"reflects the protections which existed under state law protecting
persons with handicapped status and is declaratory of existing
law". I therefore conclude that such disability rules apply to
the present case.
Alternatively, I conclude that such disability rules apply
because they codify the safety and BFOQ defenses found in federal
Rehabilitation Act[6] and Title VII[7] caselaw. Rehabilitation
Act caselaw is instructive because the definition of "disability"
as found in H.R.S.  378-1 mirrors and antedates the definition of
"individual with a disability" found in the Rehabilitation Act.[8]
Title VII caselaw is instructive because the BFOQ defense found in
H.R.S.  378-3 and H.A.R.  12-46-188 is similar to that found in
Title VII.[9]
Accordingly, in the present case the Executive Director must
first establish a prima facie case of discrimination by proving
that:
a) Complainant is a qualified individual with a
disability;
b) Complainant applied for a job with Respondent;
c) Respondent used medical criteria which screened out or
otherwise denied employment to Complainant based on his
disability.
H.A.R.  12-46-183, 12-46-188; Prewitt v. United States Postal
Service, 662 F.2d 292, 27 EPD 32,251 at 22,822 (5th Cir. 1981);
Bey v. Bolger, 540 F.Supp 910, 33 EPD 33,967 at 31,576 (E.D. Pa.
1982).
The burden then shifts to Respondent City to prove that:
a) Complainant cannot perform essential job duties safely or
efficiently with or without reasonable accommodation; b) the
medical criteria are a bona fide occupational qualification.
H.R.S.  378-3; H.A.R.  12-46-188; Prewitt, supra; Bey, supra.


1. Executive Director's Prima Facie Case
The Executive Director met its burden of establishing a prima
facie case of disability discrimination.
Complainant Aho was and is a qualified person with a
disability. The record shows that Complainant Aho has the
impairments of hypertension, hypercholesterolemia, hypertrophy of
the left ventricle and coronary artery disease. The Executive
Director did not show that such conditions substantially limit any
major life activities, or that Complainant had a record of an
impairment that substantially limits any major life activities.
However, the Executive Director did show that Respondent City
regarded Complainant as having a substantially limiting impairment
when it determined that Complainant could not perform any heavy
physical effort work without imminently suffering a heart attack,
stroke or other injury.
Complainant Aho was clearly qualified for the full time civil
service groundskeeper position. He performed the identical
contractual groundskeeper duties so competently, his supervisors
encouraged him to apply for a full time civil service position.
Respondent City argues that the full time civil service
groundskeeper position duties can be much broader than the
contract groundskeeper duties performed by Complainant. It
implies that Complainant cannot perform all the duties listed in
the civil service groundskeeper position description. However,
regardless of whether Complainant can perform all the duties
listed in the position description, the evidence shows that
Respondent City could and probably would have accommodated
Complainant by assigning him to the same parks and duties he
previously held as a contract groundskeeper.
Finally, the record shows that Complainant Aho applied for
the full time civil service groundskeeper position and was
rejected only because Respondent City determined that Complainant
had a substantial risk of suffering a heart attack, stroke or some
other injury at any time.


2. Whether Complainant Poses A "Direct Threat"
Respondent has the burden of proving that Complainant poses a
direct threat to the health or safety of himself or others that
cannot be reduced to a level below a direct threat by a reasonable
accommodation. H.A.R.  12-46-188; Prewitt, supra; Bey, supra.
The determination that a person poses a "direct threat" must
be based on an individualized assessment of the person's present
ability to safely perform the essential functions of the job, the
person's past and current job history and reasonable medical
judgment that relies on the current medical knowledge or the best
available objective or scientific evidence. Factors to be
considered are: a) the harm that may result if the person
performed the essential job functions; b) the duration of the
risk of harm; c) the nature and severity of the potential harm;
d) whether the harm may be significantly greater than if a non-
disabled person performed the essential job functions; e) the
likelihood that the potential harm will occur; f) the imminence
of the potential harm; and g) whether a reasonable accommodation
can eliminate or reduce the risk of harm below the level of being
a "direct threat". H.A.R.  12-46-182.[10]
Respondent City contends that Complainant had a high,
immediate risk of having a heart attack, stroke or other
injuries.[11] The evidence, however, does not support this.
Both Doctors Azuma and Cogan noted that when they examined
Complainant, he had no symptoms of hypertension or coronary heart
disease. Complainant also did not exhibit any symptoms while
working as contract groundskeeper. While Complainant was and is
at risk for heart attack, stroke and possible rupture of a heart
valve, such harms are not likely or imminent. Both Doctors Azuma
and Cogan testified that it is extremely difficult to predict
whether or when a person with such conditions will suffer a heart
attack. Both doctors estimated that Complainant had an
approximately 7-1/2% chance of having a heart attack every year
(or a 92-1/2% chance of not having a heart attack every year).
Additionally, Dr. Cogan estimated that Complainant had only a 3%
chance of having a stroke every year (or a 97% chance of not
having a stroke each year) and a 1%-3% chance of rupturing a heart
valve each year (or a 99%-97% chance of not rupturing a heart
valve each year).[12]
While Dr. Hall estimates that Complainant had much higher
(95%) chance of suffering a heart attack at any time, I find such
estimate inaccurate. Dr. Hall's determination was not based on
current medical knowledge of hypertension and coronary artery
disease. He is not a coronary specialist and his estimate is
based on his general knowledge and past reading of medical
studies. More importantly, Dr. Hall's estimate diverges greatly
from the two cardiologists who examined and tested Complainant.
Respondent City therefore did not meet its burden of showing
that Complainant posed a significant risk of substantial harm to
his health or safety in performing the full time civil service
groundskeeper duties.


3. Whether the Medical Criteria were Bona Fide
Occupational Qualifications

Respondent City also contends that the medical criteria used
to disqualify Complainant Aho were bona fide occupational
qualifications.
H.A.R.  12-46-182 defines a "bona fide occupational
qualification" to mean a standard or criteria which excludes a
class of persons on the basis of a specified medical condition in
which all or substantially all persons with the condition are
either: a) unable to perform the essential job functions with or
without reasonable accommodation; or b) pose a direct threat
which cannot be eliminated or reduced by reasonable
accommodation.[13]
Respondent City does not meet the above burden. Its 1989
medical standards relating to asymptomatic coronary artery disease
and hypertension, together with Dr. Hall's view that "any risk
that can lead to immediate harm is too much" did exclude classes
of persons who have these conditions. However, Respondent City
did not show that Complainant posed a direct threat to the health
and safety of himself or others, and did not present any
statistics to show that all or substantially all persons with
Complainant's impairment would pose a direct threat to themselves
or others.[14] (See, discussion in section III.B.2. above; see
also, Maine Human Rights Comm. v. Canadian Pacific Ltd., 458 A.2d
1225, 1232-1233, 31 EPD 33,549 (Me. 1983) (employer's BFOQ defense
failed when it was unable to produce any statistical evidence to
support a finding that substantially all sectionmen with heart
murmurs would be unable to safely and efficiently perform their
jobs.)

C. LIABILITY
Because Respondent City failed to hire Complainant Aho for
the full time civil service groundskeeper position solely because
of his disability, I conclude that Respondent City is liable for
violating H.R.S.  378-3.

D. REMEDIES
1. Placement of Complainant Aho in a Groundskeeper
Position
The Executive Director seeks placement of Complainant Aho
into a full time civil service groundskeeper position. Because
Complainant Aho is a qualified person with a disability, I
determine that Respondent City should be ordered to place
Complainant Aho in the next available full time civil service
groundskeeper position in the regions he has indicated he is
willing to work.
H.A.R.  12-46-191 and the Rehabilitation Act allow employers
to make medical inquiries or to require fitness for duty
examinations of an existing employee to determine whether that
employee can continue to perform essential job functions or
whether that employee poses a direct threat to the health and
safety of him/herself or others. Therefore, in the future, if
Respondent City has reason to be concerned about Complainant's
ability to perform the groundskeeper duties without harm to
himself, it may inquire as to the status of his medical conditions
and require Complainant to undergo a fitness for duty medical
exam.

2. Back Pay
Back pay encompasses the amount Complainant would have earned
if he had been hired by Respondent City. Respondent has the
burden to prove any offsets to Complainant's expected earnings.
The evidence shows that Complainant would have been hired as
a full time civil service groundskeeper by August 1, 1989. I
therefore determine that Respondent City should be ordered to pay
Complainant Aho back pay in the amount he would have earned as a
full time civil service groundskeeper for the period beginning
August 1, 1989 and ending on the date he is placed in a full time
civil service groundskeeper position. This amount should include
any benefits Complainant would have received and should be reduced
by the amounts Complainant earned as a contract employee from
August 1, 1989 to March 2, 1991 as well as the amounts Complainant
earned from yard work during March 1991 to the present.
3. Compensatory Damages
The Executive Director requests that Respondent City be
ordered to pay Complainant Aho compensatory damages of $40,000
[15] for the emotional distress he suffered. Pursuant to H.R.S. 
368-17, the Commission has the authority to award compensatory
damages for emotional distress Complainant suffered as a result of
Respondent City's actions. The Executive Director must
demonstrate the extent and nature of the resultant injury and
Respondent must demonstrate any bar or mitigation to this remedy.
The evidence shows that Complainant Aho was very hurt, upset
and lost sleep after he was terminated from his groundskeeper job.
Since March 1991 he has worried constantly about finding new work,
paying his mortgage and losing his house. He feels badly about
using up his savings and depending on his daughters to support
him. Considering these circumstances, I determine that $40,000 is
appropriate compensation for injury to Complainant Aho's feelings,
emotions, mental well-being, personal integrity and dignity.
4. Other Equitable Relief
Finally, the Executive Director asks that the Commission
order Respondent City to:
a) develop a written anti-discrimination policy which
shall include procedures for applicants and employees
to file discrimination complaints and prompt and
thorough investigation of such complaints;

b) disseminate such policy and procedures to all employees
and applicants

c) formally train all supervisory and management personnel
about such policy;

d) conduct orientations with all employees about such
policy;

e) post notices provided by the Commission setting forth
compliance with State civil rights laws in conspicuous
places throughout Respondent's departments;

f) publish the results of this contested case hearing in a
press statement provided by the Commission in at last
one newspaper published in the State and having general
circulation in Honolulu, Hawaii;

g) provide proof of compliance with the above terms to the
Executive Director.

Respondent City has already developed a non-discrimination
policy and complaint/investigation procedure. (Exs. E, F, N)
I therefore recommend that the Commission direct the Executive
Director to submit its comments on Respondent City's policy within
60 days of the effective date the Commission's final decision in
this matter. I also recommend that the Commission direct
Respondent City to adopt in substance the Executive Director's
comments and accordingly modify its policy and
complaint/investigation procedures within 90 days of the receipt
of the Executive Director's comments.
I also recommend that the Commission direct Respondent City
to conduct formal training for all management and supervisory
personnel and orientation for all employees on the revised non-
discrimination policy and procedures within 180 days of modifying
such policy and procedures.
The Commission should also direct Respondent City to post
notices provided by the Executive Director regarding compliance
with state employment discrimination laws on employee bulletin
boards throughout the City's departments.
I believe that the best way to publicize this decision and
Respondent City's non-discrimination policy to the public is to
require Respondent City to publish the attached Public Notice
(Attachment 1) in a newspaper published in the State of Hawaii
having a general circulation in the City and County of Honolulu.
I finally recommend that the Commission direct Respondent
City to confirm, in writing, its compliance with the above terms
to the Executive Director within 30 days of completing such terms.

RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude the Respondent City violated H.R.S.
 378-3 when it failed to hire Complainant Aho as a full time
civil service groundskeeper on the basis of his disability.
For the violation found above, I recommend that pursuant to
H.R.S.  368-17, the Commission should order:
1. Respondent City to immediately employ Complainant Aho
in the first available full time civil service
groundskeeper position in the region in which he has
indicated that he is willing to work;
2. Respondent City to pay Complainant Aho back pay in the
amount he would have earned as a full time civil
service groundskeeper, starting on August 1, 1989 and
ending when he is placed in a full time civil service
groundskeeper position. This amount should include
benefits he would have received and should be offset by
any amounts Complainant received as a contract park
aide, contract groundskeeper and as a yard worker.
3. Respondent City to pay Complainant Aho $40,000 as
damages in compensation for injury to his feelings,
emotions, mental well-being, personal integrity and
dignity.
4. The Executive Director to submit its comments on
Respondent City's non-discrimination policy and
complaint/investigation procedures within 60 days of
the effective date of the Commission's final decision
in this matter.
5. Respondent City to modify its non-discrimination policy
and complaint/investigation procedure to adopt, in
substance the Executive Director's comments within 90
days after receiving such comments.
6. Respondent City to conduct training of all its
management and supervisory employees and orientation of
all its employees on the modified non-discrimination
policy and complaint/investigation procedures within
180 days of modifying these.
7. Respondent City to post notices provided by the
Executive Director regarding compliance with state
employment discrimination laws on employee bulletin
boards throughout the City's departments.
8. Respondent City to publish the attached Public Notice
(Attachment 1) in a newspaper published in the state of
Hawaii having a general circulation in the City and
County of Honolulu within 30 days of the Commission's
final decision in this matter.
9. Respondent City to confirm, in writing to the Executive
Director, its compliance with the above ordered relief
within 30 days of completion.

Dated: Honolulu, Hawaii, _____________________________.

HAWAII CIVIL RIGHTS COMMISSION



______________________________
LIVIA WANG
Hearings Examiner


Copies sent to:

Moly K. Hung, Esq. Deputy Corporation Counsel
Karl K. Sakamoto, Esq. HCRC Enforcement Attorney



ATTACHMENT 1


PUBLIC NOTICE

published by Order of the
HAWAII CIVIL RIGHTS COMMISSION
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
STATE OF HAWAII


After a full hearing, the Hawaii Civil Rights Commission has
found that the Department of Parks and Recreation, City and County
of Honolulu, violated Hawaii Revised Statutes Chapter 378,
Employment Discrimination, when it failed to hire a applicant for a
full time civil service groundskeeper position because of his
disability.

(Linda C. Tseu on behalf of the Complaint filed by Hawaiiloa Aho vs.
Department of Parks and Recreation, City and County of Honolulu
Docket No. 94-002-E-D, [date of final decision] 1994).

The Commission has ordered us to publish this Notice and to:

1) Immediately hire that applicant as a full time civil
service groundskeeper

2) Pay that applicant back pay in the amount he would have
earned (including benefits) if he had been hired at the
time of his application

3) Pay that applicant a monetary award to compensate him for
emotional injuries he suffered

4) Allow the Executive Director of the Hawaii Civil Rights
Commission to comment on the non discrimination policy,
and complaint/investigation procedures developed by the
City and County of Honolulu

5) Require the City and County of Honolulu to modify its non
discrimination policy and complaint/investigation
procedures pursuant to the Executive Director's comments
and to conduct training sessions for its management,
supervisors and employees on such policy and procedures

6) Require the City and County of Honolulu to confirm, in
writing, its compliance with the above terms



DATED: ______________________________

BY: ______________________________
Authorized Agent for the City
and County of Honolulu

APPENDIX A


On November 29, 1993 the Executive Director sent Respondent
Department of Parks and Recreation, City and County of Honolulu
(hereinafter "City"), a final conciliation demand letter pursuant
to Hawaii Administrative Rule (H.A.R.)  12-46-17.
On March 8, 1994 the complaint was docketed for administrative
hearing and a Notice Of Docketing Of Complaint was issued.
On March 23, 1994 the Executive Director filed its Scheduling
Conference Statement. Respondent City filed its Scheduling
Conference Statement on March 29, 1994. A Scheduling Conference
was held on April 6, 1994 and the Scheduling Conference Order was
issued April 13, 1994.
On July 18, 1994 notices of hearing and prehearing conference
were issued. The Executive Director filed its Prehearing Conference
Statement on August 15, 1994. Respondent City filed its Prehearing
Conference Statement on August 17, 1994 and filed an Amended
Prehearing Conference Statement on August 22, 1994. By agreement of
the parties, the hearing was rescheduled to August 29, 1994 at 1:30
o'clock p.m. and an Amended Notice of Hearing was issued on August
18, 1994. On August 22, 1994 a prehearing conference was held and
the Prehearing Conference Order was issued that day.
On August 22, 1994 Respondent City attempted to file a Motion
For Dismissal. However, because August 22, 1994 was the deadline
for motions to be heard, the motion was untimely and was rejected
for filing.
The contested case hearing on this matter was held on
August 29, 30, 31 and September 1, 1994 at the Hawaii Civil Rights
Commission conference room, 888 Mililani Street, 2nd floor,
Honolulu, Hawaii pursuant to H.R.S. Chapters 91 and 368. The
Executive Director was represented by Enforcement Attorney Karl K.
Sakamoto. Complainant Aho was present during portions of the
hearing. Respondent City was present through its representative,
Melvin Murakami and was represented by Deputy Corporation Counsel
Moly K. Hung. After the presentation of the Executive Director's
case, Respondent City renewed and filed its Motion For Dismissal
pursuant to H.A.R.  12-46-48. After considering the pleadings and
arguments presented, the Hearings Examiner verbally denied
Respondent's motion.
The parties were granted leave to file proposed findings of
fact and conclusions of law and/or hearing briefs. On
September 16, 1994 the Executive Director filed its Post Hearing
Memorandum.

---------------------------
footnotes:

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

2. Unless otherwise indicated, "Tr." preceding a page number
refers to the transcript of the contested case hearing held on
August 29 through September 1, 1994; "Ex." followed by a number
refers to the Executive Director's exhibits; "Ex." followed by a
letter refers to Respondent City's exhibits.

3. This standard was rescinded in October 1992.

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

5. In DR-92-007 (March 5, 1993), this Commission held that
H.R.S. Chapter 378 does not protect independent contractors from
discriminatory practices.

6. Rehabilitation Act of 1973, 29 U.S.C.  701 et. seq. See
also footnote 9, infra.

7. Title VII of the Civil Rights Act of 1964, 42 U.S.C. 
2000e

8. 29 U.S.C.  706B states in relevant part:

. . . the term "individual with a disability" means any
individual who (i) has a physical or mental impairment
which substantially limits one or more of such person's
major life activities, (ii) has a record of such an
impairment, or (iii) is regarded as having such an
impairment . . .

H.R.S.  378-1 (L. 1975) defines "disability" to mean:

. . . 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.

9. H.R.S.  378-3(2) states:

Nothing in this part shall be deemed to:
. . .
(2) Prohibit or prevent the establishment and maintenance
of bona fide occupational qualifications reasonably
necessary to the normal operation of a particular business
or enterprise, and that have a substantial relationship
to the functions and responsibilities of prospective or
continued employment . . .

42 U.S.C.  2000e-2(e) states in relevant part:

. . . it shall not be an unlawful employment practice for
an employer to hire and employ employees . . . on the
basis of . . . religion, sex, or national origin in those
certain instance where religion, sex, or national origin
is a bona fide occupational qualification reasonably
necessary to the normal operation of that particular
business or enterprise . . .

See also, discussion in section III.B.3. below and footnote 13.

10. In Rehabilitation Act cases, defendants asserting the
"direct threat to safety" defense must similarly show that
employment of an individual would pose a reasonable probability of
substantial harm to that individual's health or safety, and that
such harm cannot be eliminated by a reasonable accommodation.
Bentivegna v. U.S. Dept. of Labor, 694 F.2d 619, 30 EPD 33,211 at
27,791-27,792 (9th Cir. 1982); Mantolete v. Bolger, 767 F.2d 1416,
37 EPD 35,455 at 38,909 (9th Cir. 1985); School Board of Nassau
County, Florida v. Arline 480 US 273, 94 L.Ed 2d 307, 107 S.Ct 1123,
42 EPD 36, 791 at 45,638 - 45,639 (1987). Factors to be considered
are: a) the individual's work history; b) the individual's medical
history; c) the nature of the risk; d) the duration of the risk;
e) the severity of the risk; f) the probability of the risk
occurring and the imminence of the risk. Arline, supra; Mantolete,
37 EPD 35,455 at 38,909- 38,910; Bentivegna, 30 EPD 33,211 at
27,292.

11. Respondent City admits that Complainant is able to
physically perform the essential groundskeeper job functions. See,
Tr. at 373; Ex. K at 3.
12. In his June 29, 1994 letter to Corporation Counsel, Dr. Cogan
opined that because Complainant was at some risk for heart attack,
Complainant should only engage in sedentary work (i.e., a desk job).
(Ex. T) However in his testimony, Dr. Cogan clarified that he made
such recommendation because in his practice, he conducts angiograms
on such patients to determine the severity of their coronary artery
disease before recommending work or exercise. (Tr. at 292-294)

13. Title VII cases adopt a similar BFOQ test which requires
an employer to show that: 1) the essence of the business operation
would be undermined by the hiring of a person from the protected
class; and 2) there is a factual basis for believing that all or
substantially all persons in the excluded category would be unable
to safely or efficiently perform the duties of the job, or that it
is impossible or highly impractical to deal with such persons on an
individualized basis. Usery v. Tamiami Trail Tours, Inc., 531 F.2d
224, 11 EPD 10,916 at 7856-7857 (5th Cir. 1976); Dothard v.
Rawlinson, 433 US 321, 92 S.Ct. 2720, 53 L.Ed.2d 786, 14 EPD 7632 at
5106-5107 (1977); EEOC v. County of Santa Barbara, 666 F.2d 373, 27
EPD 32,396 at 23,703-23,704 (9th Cir. 1982).
14. Respondent City does not contend that Complainant and all or
substantially all persons with his conditions are unable to
physically perform the essential groundskeeper job functions. See,
Tr. at 373; Ex. K at 3.

15. In its Prehearing Conference Statement, the Executive
Director sought $40,000 in compensatory damages for injury to
Complainant's feelings, emotions and mental well-being. In its post
hearing brief, the Executive Director increased this amount to
$100,000 without any explanation.