Coledra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII


LINDA C. TSEU, Executive ) Docket No. 95-002-E-A-D-RET
Director, on behalf of the )
complaint filed by ) HEARINGS EXAMINER'S FINDINGS
MARY ANNE COLE, ) OF FACT, CONCLUSIONS OF LAW
) AND RECOMMENDED ORDER;
v. ) APPENDICES A - B.
)
TREEHOUSE RESTAURANT, INC. )
)
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 asserts that Respondent Treehouse
Restaurant, Inc. (hereinafter "Treehouse") violated H.R.S.  378-2
by: 1) demoting Complainant Mary Anne Cole because of her age and
disability; and 2) retaliating against Complainant by:
a) terminating her after she filed a discrimination complaint with
this Commission; b) thereafter barring Complainant from its
premises; and c) thereafter providing negative references to
potential employers.
Respondent Treehouse Restaurant Inc. asserts that: a) it
reduced Complainant's hours and fired two other bartenders because
they had low bar sales; b) Complainant was terminated for
misconduct; c) Complainant is not entitled to any relief because
Respondent did not engage in any discriminatory practices; and
d) alternatively, Complainant failed to mitigate her damages.
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. Respondent Treehouse Restaurant, Inc. is a Hawaii
corporation which owned and operated a restaurant in the Lahaina
Market Place in Lahaina, Maui. The restaurant was known as the
Lahaina Treehouse.
2. Arthur "Higgins" Maddigan is the president and general
manager of Respondent Treehouse. In the early 1970's Maddigan
personally managed the Treehouse restaurant. Subsequently, Maddigan
was not involved in the day to day operations of the restaurant.
Instead, he hired and fired a large number of restaurant and bar
managers and continued to make overall decisions about the
restaurant's menu, image and type of clientele he wanted to attract.
(Tr. 146-149, 477, 919-920, 1760-1761, 1767-1768, 2164-2166,
2182)[2]
3. Complainant Mary Anne Cole has been a bartender since
1973. She moved to Lahaina in 1978 and obtained a manager's liquor
card license. Prior to working at Respondent Treehouse, Complainant
worked as a bartender at various bars in the Lahaina area. (Tr. 14-
16)
4. On or about September 19, 1985 Respondent hired
Complainant as a bartender. (Tr. 16; Ex. 3)
5. In order to tend bar unsupervised, a bartender must obtain
a manager's liquor card license. Bartenders at Respondent Treehouse
usually worked alone unsupervised, except on special nights such as
Halloween, Christmas and New Year's Eve, when the bar would be
exceptionally busy and more than one bartender would be scheduled to
work. Respondent Treehouse usually hired experienced bartenders who
held manager's liquor card licenses and seldom trained its non-
bartending employees to be bartenders. All but one of the bar
managers (who also was the restaurant manager) at Respondent
Treehouse worked shifts as bartenders. (Tr. 14-15, 888, 917, 1152-
1153, 1203, 1303-1304, 2220; Ex. HE-2)
6. The work day at Respondent Treehouse was divided into two
approximately seven hour shifts. The day shift ran from 10 a.m. -
4 p.m. plus an hour for set up and paper work. The evening shift
ran from 4 p.m. - 10 p.m. plus one hour for paper work and closing.
Bartenders usually made more tips during the night shifts than
during the day shifts. (Tr. 17-19, 22, 895, 908)
7. From September 1985 to February 1988 Complainant generally
worked three shifts per week at Respondent Treehouse. Initially she
earned $6 per hour plus tips. Some time in 1987 Respondent
Treehouse promoted Complainant to be bar manager and gave her a
raise to $7 per hour plus tips. (Tr. 102-103; Ex. HE-2)
8. Because Complainant worked more than 20 hours per week at
Respondent Treehouse, she received medical insurance through
Respondent. (Tr. 29)
9. Complainant is an insulin dependent diabetic.
Complainant's medical insurance paid for her insulin and needles,
which cost approximately $40 per month. Other Treehouse employees
knew Complainant was diabetic because she had to take breaks to eat
in order to keep up her blood sugar level. Prior to October 1991,
Maddigan knew that Complainant was an insulin dependent diabetic
because Complainant once told him she liked Respondent's medical
plan because it paid for her insulin and needles. (Tr. 29-30, 36-
38, 78, 83, 161-162, 1077)
10. On or about February 9, 1988 Complainant injured her back.
Complainant claimed she injured her back while lifting a case of rum
while working at Respondent Treehouse. Shortly thereafter,
Complainant filed a workers' compensation claim. Complainant was
diagnosed as temporarily totally disabled from work for the period
February 13, 1988 through December 14, 1988 and did not work at the
Treehouse for these 10 months. (Tr. 23, 107; Ex. HE-2)
11. In October 1988 Complainant began to work part time as a
sales person for Apparels of Pauline, a clothing store located in
the Lahaina Market Place near the Treehouse. Complainant worked
approximately 16 hours a week and was paid by check and clothes. In
1990 the owners of the store were unable to renew their lease and
tried to sell the store. In 1991 the owners began to close down the
store and lay off employees. By October 1, 1991 the owners
cancelled their employee medical insurance. The store closed on
February 17, 1992. Complainant worked at the store until its
closing. (Tr. 74-76, 117, 121-122, 1902, 1907-1910, 1914, 1920-
1921, 1934; Ex. II)
12. In November 1988 Complainant approached Maddigan and asked
to be rehired as a bartender. After checking with Complainant's
physician, Maddigan agreed to rehire Complainant as a bartender. On
December 15, 1988 Complainant returned to Respondent Treehouse as a
bartender and again worked three shifts per week (two evenings, one
day). (Tr. 105; Ex. HE-2)
13. On December 21, 1989 Complainant settled her workers'
compensation claim and received a total of $35,335.72 from
Respondent's insurance company in workers' compensation benefits.
(Ex. HE-2)
14. From December 15, 1988 to September 30, 1991 Complainant
worked two evening shifts and one day shift per week at Respondent
Treehouse. She continued to receive medical insurance through
Respondent. (Tr. 24, 105-106, 116-117)
15. In September 1989 Maddigan hired Walter Clur as a
comptroller in charge of personnel operations at Respondent
Treehouse. (Tr. 1758-1759; Ex. 11)
16. Bill Garrett was a bartender at Respondent Treehouse from
May 13, 1988 until October 1, 1991. In October 1991, Garrett was 44
years old. (Tr. 881, 897; Exs. 3, CC)
17. Peter Johnson was a bar manager at Respondent Treehouse
from June 24, 1988 to August 15, 1990. Some time between February
and May, 1990 Maddigan told Johnson that he wanted to hire "young
girls" behind the bar. Johnson told Garrett about Maddigan's
suggestion. Garret and Johnson thought the idea was ridiculous, and
Johnson never implemented it. (Tr. 904-905, 930, 932-933; Ex. CC-1)
18. Patty Smith was a cook at Respondent Treehouse from
approximately May 1987 to August 1989. In August 1989 Maddigan
fired Smith because he felt she didn't know how to cook. In January
1992 Respondent Treehouse rehired Smith as a cook from January to
February 1992. Smith and Complainant had an on-and-off friendship
and sometimes fought. (Tr. 234-235, 242-243; Ex. 10)
19. Carol Clancy was a waitress at Respondent Treehouse from
October 1990 to December 1992 and became its general manager until
she was fired in December 1993. In October 1991 Clancy was 56 years
old. Clancy and Complainant had been personal friends. Some time
prior to September 30, 1991, Clancy heard that Complainant accused
her [Clancy] of stealing money from the cash register. Since then,
they have not been on speaking terms. (Tr. 1244, 1251-1252, 1257,
1263, 1297, 1539-1540; Exs. 10, KK)
20. Some time prior to September 30, 1991 Smith told Clancy
that Complainant's 1988 back injury did not occur while Complainant
was working at Respondent Treehouse. Smith stated that Complainant
actually hurt her back off hours at another restaurant while she was
helping to carry her boyfriend home. Clancy told Maddigan and Clur
about Smith's statements. Maddigan and Clur then believed that
Complainant's workers' compensation claim was fraudulent. (Tr. 677-
678, 1291, 1349-1351, 2098-2100, 2137-2140, 2246; Ex. 10)
21. Maddigan hired Tom Lowerre as a bar manager on July 24,
1991. In October 1991 Lowerre was 37 years old. (Exs. 3, CC)
22. Some time in the beginning of September 1991 Maddigan
asked Linda Evans to become the bar manager at Respondent Treehouse.
At that time, Evans was a bar manager at another restaurant in
Lahaina. In October 1991 Evans was 38 years old. Maddigan
encouraged Evans to visit the Treehouse as a patron to evaluate its
management and operations. (Tr. 1764, 1955-1956; Exs. 11, CC)
23. On or about September 28, 1991 Evans and two friends
entered the Treehouse near closing time. Garrett was bartending and
had already closed the bar. Garrett did not know that Maddigan
planned to hire Evans as the new bar manager. Evans and her friends
demanded drinks. Garrett told Evans and her friends that he would
only serve them two drinks each because he was closing the bar and
doing paper work. Evans and her friends rudely demanded additional
drinks. Garrett told Evans and her friends to leave. (Tr. 944-945;
Ex. S)
24. On or about September 29, 1991 Evans, Maddigan and Clur
decided to fire Lowerre and Garrett. Evans and Maddigan wanted to
fire Lowerre because: a) Maddigan felt Lowerre did not increase bar
sales; b) Evans was taking over Lowerre's job as bar manager; and
c) Evans wanted Lowerre's shifts. Evans decided to fire Garrett
because she felt Garrett was rude to her and her friends the prior
evening and because she also wanted Garrett's shifts. (Tr. 130-
131, 133; Ex. 10)
25. Maddigan also wanted to fire Complainant because he
believed that her workers' compensation claim was fraudulent.
However, Maddigan didn't want Complainant to collect unemployment
insurance because he felt she had already received a large amount of
workers' compensation benefits. Maddigan decided to force
Complainant to quit by reducing her shifts and terminating her
medical insurance benefits. Maddigan mentioned to Evans that
Complainant was diabetic and would probably quit if she lost her
medical benefits. Maddigan told Evans to reduce Complainant's work
schedule to two shifts per week. (Tr. 26-17, 2043, 2206; Exs. 1, M,
KK)
26. On September 30, 1991 Evans went to the Treehouse and
announced she was the new bar manager. Evans told Garrett he was
fired but did not state any reasons for his termination. Evans
falsely told Complainant and other employees that Garrett was fired
for drug use. (Tr. 84, 131, 133, 889-890, 1300-1301; Exs. 10, S) 27. On September 30, 1991 Evans also posted a new bartender
schedule which listed Complainant for the Tuesday and Wednesday day
shifts. Evans scheduled herself and two other bartenders, (Matt
Jacobson, then age 25; and Sarah Morison, then age 23) for
Complainant's old evening shifts. Complainant saw the schedule on
October 1, 1991 and asked Evans why her shifts had been reduced to
two days and asked why she was scheduled only for day shifts. Evans
stated that this was how she [Evans] wanted to schedule the
bartenders and that the schedule was temporary. Complainant also
received a notice which stated that her medical benefits were
terminated. At that time, Complainant was 47 years old. (Tr. 25-
26, 130, 159-160; Exs. 3, S,)
28. After this schedule change, Complainant suspected that
Evans was going to fire her too. Complainant started to keep a log
of employment actions taken by management at the Treehouse. She
also began to look for other bartending jobs and solicited several
letters of recommendation from former Treehouse managers and
employees. (Tr. 50, 55-56, 202-205, 963, 967-972; Exs. 1, 16)
29. Complainant became bewildered and upset about her loss of
work hours and medical benefits. At first she thought only Evans
wanted to get rid of her. Complainant couldn't understand why
Maddigan would allow Evans to cut her hours and medical benefits
since she [Complainant] had been a long time loyal employee. She
worried about keeping her job, cried often and couldn't sleep at
night. Complainant met with Clur and told him that she needed to
retain her medical benefits. During this meeting, she was very
distressed. Clur told Complainant to get medical benefits through
her job at Apparels of Pauline. Complaint also discussed her need
for medical insurance with Maddigan. During this discussion,
Complainant was crying and in a panic about losing her insurance.
Maddigan told Complainant she was eligible for COBRA or that she
should get insurance through Apparels of Pauline. (Tr. 90-91, 143,
244-245, 1133-1134, 1784-1785, 2241-2243; Ex. KK)
30. On or about October 12, 1991 Complainant asked Evans
if she could have more shifts in order to work enough hours to
regain her medical insurance. Evans told Complainant that Maddigan
wanted Complainant "out of there" because he thought Complainant had
"faked" her worker's compensation claim. Evans told Complainant
that Maddigan didn't want her to work more than two shifts so that
she would lose her medical benefits and quit. Evans also told
Complainant that Maddigan wanted Complainant to quit, instead of be
fired, because she [Complainant] had collected workers' compensation
benefits and he didn't want her to get any unemployment insurance.
(Tr. 26-27, 31; Exs. 1, II, OO)
31. Evans began to scrutinize Complainant's work performance.
On October 13, 1991 Evans gave Complainant a written reprimand for
leaving the ice machine unlocked. No other employee was reprimanded
for leaving the ice machine unlocked. On October 22, 1991 Evans
accused and verbally reprimanded Complainant for over pouring liquor
into a drink. Complainant maintained that she had not over poured.
(Tr. 33, 4778-479, 1323, 1340, 1627; Ex. 1)
32. Pursuant to Evans' October 12, 1991 statements and
subsequent reprimands, Complainant believed that Respondent was
retaliating against her for filing her 1988 workers' compensation
claim. Complainant filed a workers' compensation discrimination
complaint with the Enforcement Division of the Department of Labor
and Industrial Relations on October 22, 1991. In this complaint,
Complainant claims that Evans told her that Maddigan wanted her "out
of there because I once collected workman's comp . . . and felt I
faked the claim" and that "he did not want me to be able to
collected unemployment". Complainant hoped that the filing of this
complaint would pressure Maddigan into restoring her shifts and
medical benefits. A clerk from the Enforcement Division suggested
to Complainant that she also file a disability discrimination
complaint with this Commission. Respondent was served a copy of the
Enforcement Division complaint on October 23, 1991. (Tr. 50-54,
165, 169-170, 180-181, 729; Ex. OO)
33. In response to the Enforcement Division complaint,
Maddigan, Clur and Evans created a false bar sales report to justify
Complainant's reduction in hours and the firing of Lowerre and
Garrett. The report purported to cover the average sales of each of
the bartenders during the months of June, July, August and September
1991. The report inaccurately states that Complainant had average
sales below $160 per shift. Clur and Evans falsely claimed that
Lowerre and Garrett were fired because they did not meet the $160
per shift sales quota. Clur and Evans also falsely claimed that
they had planned to fire Complainant, but that Maddigan intervened
and decided to retain Complainant because of her long employment at
Treehouse. (Tr. 1971, 1988-1992, 1996, 2025-2028, 2108-2109; Exs.
M, AA, OO, 29, 33)
34. At the end of October 1991 Respondent Treehouse hired
Sharlene Rabang as the overall manager of the Treehouse. In October
1991 Rabang was 48 years old. Prior to being hired, Rabang visited
the Treehouse as a customer and saw employees steal money and be
inattentive to customers. Rabang told Maddigan that she wanted to
make several personnel changes. Maddigan told Rabang that he wanted
to make Complainant quit because Complainant had filed a fraudulent
workers' compensation claim. He also told Rabang that he didn't
want Complainant fired because he feared she would file a
retaliation claim. (Tr. 1048, 1053-1055, 1074-1076, 1088)
35. As the overall manager of the Treehouse, Rabang would help
waitress when the restaurant was busy and would also fill in for
absent employees. (Tr. 1606-1609)
36. On October 30, 1991 Morison was accused of stealing and
closing the bar early and was fired. (Tr. 183-184; Ex. 1)
37. Rabang began a policy of spotting Treehouse employees to
catch the employees she suspected were stealing. On November 22,
1991 Jacobson and a cook were spotted and caught giving away free
drinks and meals. Rabang fired Jacobson and the cook. (Tr. 1057-
1060; Exs. 1, T)
38. After Jacobson and Morison were fired, Complainant asked
Evans if she could have some of their old shifts. Evans told
Complainant that Maddigan would not allow her [Evans] to give
Complainant any more shifts. (Tr. 183-187, 954)
39. Rabang also arranged to have Complainant spotted because
she was trying to upset Complainant and make her quit. (Tr. 1058-
1059, 1139)
40. Lori Jackson-Horton was waitress and later a bartender at
Respondent Treehouse from October 28, 1991 to October 1992. In
October 1991, Jackson-Horton was 29 years old. Jackson-Horton was
given some of Jacobson's and Morison's old shifts. (Tr. 1132;
Exs. 1, CC)
41. Some time in October 1991 Jackson-Horton overheard Evans
and Rabang talking about spotters being sent into the Treehouse to
watch Complainant so that she would get upset and quit. Jackson-
Horton told Complainant about this conversation. (Tr. 35, 192,
1139; Ex. II)
42. On January 7, 1992 Complainant was spotted and was found
to be honest and in compliance with all but one of Respondent's
house policies. (Tr. 1551; Ex. T)
43. Some time in January, 1992, Clancy asked Maddigan to hire
Timothy Kinney as a bartender at the Treehouse. Kinney had been an
alcoholic and had problems drinking when working at other bartending
jobs. Maddigan decided to hire Kinney because he [Maddigan] was
also a recovered alcoholic and he wanted to give Kinney a second
chance. On January 10, 1992 Respondent Treehouse hired Timothy
Kinney as a bartender. At that time, Kinney was 43 years old.
Thereafter, 9 out of 10 bartenders hired were over age 30; two of
the 10 were over age 40; and at least seven of the 10 were male.
(Tr. 1789-1792; Exs. 3, 10, N, CC, CC-1; see also, Appendix B)
44. On February 19, 1992 Complainant filed an age and
disability discrimination complaint with this Commission. In this
complaint, Complainant states, inter alia, that "Linda Evans, Bar
Manager, told me that the decrease in my hours and the demotion were
because the Owner had told her that I had collected Worker's
Compensation so he did not want me to collect Unemployment
Insurance; that these actions would force me to quit" and that
"[t]he Bar Manager mentioned my work injury as a reason I was
subjected to decreased hours, demotion and unequal terms and
conditions of employment." If Respondent Treehouse had restored
Complainant's shifts and medical benefits, Complainant would not
have filed this Civil Rights Commission complaint. Respondent was
served a copy of this complaint on or about February 21, 1992. (Tr.
181-182; Complaint dated 2/19/92; Stipulated Facts Nos. 4, 5)
45. In response to Complainant's Civil Rights Commission
complaint, Maddigan and Clur again falsely claimed that Lowerre and
Garrett were fired because they did not meet a $160 per shift sales
quota. Maddigan and Clur also claimed that Complainant did not meet
the $160 per shift sales quota, but had been retained because of her
long employment at Treehouse. (Tr. 1840-1841, 2024-2025; Ex. C)
46. From October 1, 1991 through March 16, 1992 Complainant
freely discussed her loss of hours and medical benefits and her
Enforcement Division and Civil Rights complaints with employees and
customers of Respondent Treehouse. All the employees and many
customers knew that Complainant had several complaints with the
Department of Labor pending against Respondent Treehouse. (Tr. 186-
187, 461, 904, 1074-1075, 1125, 1133-1134, 1198, 1287, 1298-1299,
1305-1306, 1331, 1500-1501; Ex. 10)
47. During this period, Evans and Rabang became angry at
Complainant for discussing her complaints, loss of hours and loss of
benefits with other employees and customers. Rabang especially
resented having to handle Complainant with "kid gloves" because of
her pending claims against the Treehouse. However, Evans and Rabang
did not terminate Complainant because Maddigan instructed them not
to. (Tr. 1074-1076, 1082, 1289-1290, 1329-1331, 1508-1509, 1598-
1599; Ex. KK)
48. On March 5, 1992 Complainant injured her shoulder in a
boating accident unrelated to work. (Tr. 39-40; Ex. 1)
49. On March 6, 1992 Complainant went to the emergency clinic
at Maui Memorial Hospital for treatment of her shoulder and received
a work disability verification slip. Later that afternoon,
Complainant went in to Respondent Treehouse and showed Clur the work
disability verification slip. This slip was dated March 6, 1992 and
stated that Complainant should be granted disability leave until
March 13, 1992. Clur told Complainant to discuss the matter with
Rabang. Complainant explained her injury to Rabang and stated that
she didn't know when she could return to work. Rabang told
Complainant that Respondent might not be able to hold her job open.
(Tr. 40-41, 507-511; Exs. 1, 5, Q, Q-1, II, KK)
50. Maddigan and Rabang became concerned that if Complainant
returned to work at the Treehouse, she might further injure herself
and file another workers' compensation claim. They decided to
terminate Complainant. On March 9 and 10, 1992 Rabang called
Complainant and informed her she was terminated because she might
further injure herself. Rabang also told Complainant to come in to
sign "termination papers". (Tr. 557-559, 995-996, 1150, 1499, 1800,
2190-2193, Exs. 1, KK)
51. On March 10, 1992 Complainant went to Dr. George Zakaib,
her personal physician, for treatment of her shoulder. She received
a sick leave verification slip stating that her ability to return to
work was pending. On March 10, 1992 Complainant brought this slip
into Respondent Treehouse so that she could get a temporary
disability insurance (TDI) form. Rabang was not in. Complainant
gave the sick leave verification slip to Clur, who gave her a TDI
form. (Tr. 41-42, 516-519; Exs. 1, 6, 7, 8, TT)
52. On March 16, 1991 Complainant went into Respondent
Treehouse to drop off her TDI form and to sign the "termination
papers". Rabang was not present and Evans stated that she did not
have such papers. Complainant gave the TDI form to Clur and asked
about signing the "termination papers". Clur stated he did not have
such papers. Complainant returned to the Treehouse bar area. She
drank one beer and started to socialize with some customers.
Complainant loudly informed the customers that she had been fired.
Evans became angry at Complainant for talking about her termination
with customers. Evans told John Taylor, Complainant's boyfriend, to
take Complainant home. Taylor told Complainant that since her
"termination papers" weren't ready, they should leave. Complainant
and Taylor left the Treehouse and drove home. On the way, Taylor
told Complainant that Evans had asked him to remove her
[Complainant] from the Treehouse and to take her home. Complainant
casually remarked, "Well, that just really sounds typical". (Tr.
59-65, 998-1001, 1005, 1750-1753; Exs. 1, P, II, TT)
53. When Rabang returned to work on March 17, 1992 Evans told
her that Complainant had been in the Treehouse the prior afternoon
and had created a disturbance at the bar. Rabang would not have
fired Complainant only for making such a disturbance. However,
Rabang felt that such disturbance coupled with another reason would
justify Complainant's termination. (Tr. 1118, 1193, 1320-1321,
1597-1598; Ex. KK)
54. Evans wrote a statement as to the March 16, 1992 incident
and gave it to Rabang. The statement states that Complainant
announced she was high on pain pills, that she had been drinking,
that she began talking to patrons about her law suits against the
Treehouse, and that "her behavior was unacceptable". (Tr. 1118,
1177; Ex. P)
55. Rabang approached Allen Jones and Craig Davis, two
Treehouse cooks who were at the bar during the incident, to sign the
statement. Although Davis and Jones did not observe Complainant
drinking and did not hear the comments Complainant made to other
customers, they signed Evans' statement because they had just
started working at the Treehouse and feared they would be fired if
they refused. Rabang also approached Clancy to sign the statement.
Clancy had been sitting at a table doing paper work during the
incident. Clancy also not did not observe Complainant drinking and
did not hear what Complainant said to the other patrons. However,
Clancy signed Evans' statement because she felt the incident was not
serious and thought that Complainant would only receive a written
reprimand. (Tr. 405-407, 409-414, 445-446, 454, 714-718, 876, 1180,
1283, 1285, 1307-1316, 1635; Exs. 10, P)
56. On March 17, 1992 Complainant returned to Respondent
Treehouse to sign the "termination papers". Rabang informed
Complainant she was fired because of the March 16, 1992 incident.
Rabang also told Complainant that management didn't want Complainant
to return to work because she might further injure herself and file
additional workers' compensation claims. (Tr. 66-67, 1119; Ex. 1;
Complaint dated 6/23/92)
57. After Complainant left, Rabang filled out a payroll status
change sheet stating the reasons for Complainant's termination.
Rabang falsely stated that Complainant was discharged for
"disorderly conduct at place of employment" and for being tardy in
submitting her 3/10/92 sick leave verification slip[3]. (Tr. 1119-
1120, 1620-1621; Ex. O)
58. However, Complainant was actually fired because:
a) Maddigan believed that her 1988 workers' compensation claim was
fraudulent; b) Maddigan did not want Complainant to receive
unemployment insurance; and c) Maddigan and Rabang didn't want
Complainant to return to work at the Treehouse because they feared
that Complainant might further injure herself and file additional
workers' compensation claims. (Tr. 995-996, 1150, 1308, 1499,
1800; Complaint dated 6/23/92)
59. Maddigan had a policy of barring all ex-Treehouse
employees who had been fired from the Treehouse premises. In April
1992 Complainant and her friend, Anne Lewis, went into the Treehouse
and ordered drinks and lunch. Kinney, who was bartending, served
them drinks. Later Kinney apologetically informed Complainant that
he could not serve her and told Complainant and Lewis to leave.
Complainant became embarrassed, and she and Lewis left. (Tr. 95-99,
445, 474, 1643)
60. On April 29, 1992 Complainant applied for bartending jobs
at the Westin and Marriott hotels. During June 1992 Complainant
looked for other bartending positions. She: a) applied at four
restaurants and two hotels; b) went to the job bank once;
c) looked at newspaper want ads about 2-3 times per week; and
d) had Taylor inquire about bartending jobs at his work place.
After this one month period, Complainant did not actively seek
bartending jobs and only checked want ads about 2 or 3 times a week.
(Tr. 69-70, 486, 591-596, 597-598; Exs. 1, II)
61. From March 12, 1992 to June 9, 1992 Complainant received
$712.50 in temporary disability insurance payments from Respondent's
insurer. (Ex. TT)
62. On June 19, 1992 Complainant filed a claim for
unemployment insurance. Her claim was denied and the denial was
upheld on appeal.[4] (Ex. HE-3)
63. On June 24, 1992 Complainant filed a second complaint with
this Commission. In this complaint, she states, inter alia,
"Charlene Rabang, General Manager, informed me I was terminated
because 'they' could not hold my job open for a month" and "[o]n or
about 3/17/92, my supervisor told me that they did not want me to
return as I may further injure myself". Complaint dated 6/23/92.
64. On June 30, 1992 Dr. Zakaib released Complainant to return
to work without any restrictions. (Tr. 591; Ex. II)
65. In early July 1992 Jeanette Mohameds, the owner of the
store Valley Isle Productions, Inc. dba "Oh Baby" approached
Complainant and asked her to work part time as a clothing and
jewelry sales person. Complainant accepted the job, started work on
August 1, 1992 and is still employed there. Complainant works 20
hours a week and was paid $5.00 per hour until April 1994, when her
pay was increased to $7.00 per hour. In April 1995 Complainant's
pay was increased to $8.00 per hour. Complainant is paid cash and
does not receive medical insurance benefits. (Tr. at 77, 82, 1858-
1862; Exs. A, HE-1)
66. On March 22, 1995 Respondent Treehouse Restaurant was
closed and all its employees were permanently laid off. (Tr. 2148-
2149; Ex. B)



III. CONCLUSIONS OF LAW[5]


A. Jurisdiction
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.

The statute in turn defines "person" to mean one or more individuals
and includes, but is not limited to, partnerships, associations,
corporations, legal representatives, trustees, trustees in
bankruptcy, receivers, or the State or any of its political
subdivisions.
Respondent Treehouse was a corporation with one or more
employees. I therefore conclude that it is an employer under H.R.S.
 378-l and is subject to the provisions of H.R.S. Chapter 378.

B. Age Discrimination
H.R.S.  378-2 prohibits an employer from discharging or
discriminating against an employee in the terms or conditions of
employment because of age. The Executive Director alleges that
Respondent Treehouse demoted Complainant by reducing her hours and
terminating her medical insurance benefits in an attempt to force
Complainant to quit because of her age. Its argument is based on
both disparate treatment (direct and circumstantial evidence) and
disparate impact theories.


1. direct evidence of age discrimination
Intentional discrimination under Chapter 378 may be established
by direct evidence of discriminatory motive. See, In Re. Smith /
MTL Inc. et. al., Docket No. 92-003-PA-R-S (November 9, 1993).
Statements regarding an employee's age which are directly probative
of an intent to discriminate, can serve as direct evidence of age
discrimination. Lindsey v. American Case Iron Pipe Co., 772 F.2d
799, 38 EPD 35,735 at 40,302-40,303 (11th Cir. 1985) (supervisor's
statement that plaintiff would not be considered for position
because company was looking for a person younger than plaintiff
constituted direct evidence of age discrimination); Grant v.
Hazelett Strip-Casting corp., 880 F.2d 1564, 51 EPD 39,245 at 58,823
(2nd Cir. 1989) (CEO's statement "I want a young man and that's what
I want and that's what I'm going to have" direct evidence of age
discrimination); Beshears v. Communications Services, Inc., 930 F.2d
1348, 56 EPD 40,717 at 66,801 (8th Cir. 1991) (president's remarks
during company's restructuring that older employees "have problems
adapting to changes and new policies" constituted direct evidence of
discriminatory intent). However, stray remarks, statements by non-
decisionmakers or statements by decisionmakers unrelated to the
decisional process itself do not constitute direct evidence of
discrimination. Price Waterhouse v. Hopkins. 490 U.S. 228, 109 S.Ct
1775, 104 L.Ed.2d 268, 49 EPD 38,936 at 57,103-57,104, O'Connor
concurring opinion at 57,024 (1989).
Once the Executive Director presents direct evidence of
discriminatory intent, the burden of proof shifts to the respondent
to either: 1) rebut such evidence by proving that it is not true;
2) establish an affirmative defense; or 3) limit, but not avoid,
liability by showing mixed motives for the adverse action. See, In
Re. Smith / MTL Inc. et. al., supra; Beshears v. Communications
Services, Inc., 56 EPD 40,717 at 66,800-66,801
The Executive Director alleges that Maddigan stated that he
wanted "young girls" with "long skinny legs" and that Maddigan and
Clur stated that Complainant was "too old". The Executive Director
also alleges that: a) Rabang stated Respondent wanted to attract
a "younger crowd"; b) Evans told Complainant she [Complainant]
didn't fit the "image" of the bar; c) Evans told Complainant that
she [Evans] wanted a "more hip and lively crowd"; and d) Rabang
and Evans stated that Complainant was "too old". However, the
preponderance of the evidence does not show that such statements
were ever made or that they were made at or near the time
Complainant's hours were reduced.
Garrett testified that Peter Johnson, a former bar manager,
remarked that Maddigan once stated that he wanted "young girls
behind the bar". Maddigan's comments to Johnson were made some time
around February to May 1990, at least 1-1/2 years prior to the date
Complaint's hours were reduced. (Tr. 930; Ex. CC-1) Garrett also
testified that Johnson never implemented the idea. (Tr. 932-933)
The evidence also shows that after Johnson's tenure, the majority of
bartenders employed and working most of the shifts during this
period of time were over 30 years old (Complainant, Lowerre,
Garrett, Boecker, Evans and Kinney). (See, Exs. S, CC, CC-1.) In
addition, Respondent subsequently hired more men than women
bartenders, and more bartenders over age 30 than under age 30.[6]
(Exs. CC, CC-1; see also, Appendix B) I therefore conclude that
Maddigan's statement was a stray remark too far removed and
unrelated to his decision to reduce Complainant's hours to
constitute direct evidence of age discrimination.
Complainant testified that on October 12, 1991 Evans told her
that she [Complainant] didn't fit the "image" of the bar and that
Evans wanted a more "hip and lively crowd". However, I find
Complainant's testimony regarding these remarks not credible.[7]
Complainant's testimony as to Evans' statements was inconsistent.
At the hearing, she first testified that Evans stated that
Complainant didn't fit the "image that Higgins wanted for the bar"
(Tr. 129). Later Complainant testified that Evans said that
Complainant didn't fit the "image of the bar", and that Evans made
no reference to Maddigan. (Tr. 145) During her July 6, 1993
interview with a Commission investigator regarding this
conversation, Complainant states that Evans told her that Maddigan
wanted her to quit because she was too old for the image of the
Treehouse. (Ex. KK) However, during a subsequent interview held on
October 27, 1993 with the same investigator regarding the same
conversation, Complainant states that Evans did not say anything
about age or image. (Ex. KK) At the hearing, Complainant
admitted that she at first believed that Maddigan was only
retaliating against her for filing her workers' compensation claim.
(Tr. at 165, 729) In addition, Complainant fails to mention such
remarks in documents she wrote at or near this period of time. In
her October 12, 1991 log entry, Complainant states that "Evans
admitted to me about workman comp claim" but does not note any
"image" or "hip and lively crowd" remarks. (Ex. 1). She also does
not mention such remarks in her complaint filed with the DLIR
Enforcement Section on October 22, 1991 (Ex. OO), in a subsequent
statement made to that division (Tr. 535-536; Ex. HH), or in her
first Complainant filed with this Commission on February 18, 1992.
Finally, Complainant testified that at about the same time, Patty
Smith informed her that Maddigan stated he wanted all the bartenders
to be "long legged and blond". (Tr. 136-138) However, Smith
testified that she did not hear such comments until January 1992 and
that she didn't inform Complainant about Maddigan's statements
because they would hurt Complainant's feelings. (Tr. 247-250, 653-
654, 660, 664) For these reasons, I conclude that the weight of the
evidence does not show that Evans made the "image" and "hip and
lively crowd" statements to Complainant.
The only other person who testified that she heard statements
about attracting a "younger crowd" and Complainant's age was Patty
Smith. Smith testified that she heard: 1) Maddigan say the words
"young" and "long legs" during a lunch conversation at the
Treehouse; 2) Maddigan comment about Evans saying, "Isn't is great
to have another Charlie" (in reference to a former female bar
manager named Charlie who Smith alleges was young and had long legs)
during another lunch at the Treehouse; 3) Clur say that Complainant
was "too old to bring in the guys" during lunch at the Treehouse;
4) Rabang twice saying that Complainant was too old for the
Treehouse and that she wanted a young, "Kimo's type" crowd (once
during work and once during a picnic in April or May 1992); and 5)
Evans state on three occasions that Complainant was just too old to
work at the Treehouse (once during a work break and twice during
social visits in summer 1992). (Tr. 247-259)
However, I find Smith not credible. Smith only worked at the
Treehouse from January to February 1992 and claimed she heard the
Maddigan, Clur, one of the Rabang and one of the Evans statements
during this one month period. However, no other witnesses,
including bartenders such as Jackson-Horton and Garrett, waitresses
such as Clancy, or cooks such as Jones heard such statements despite
working longer, and during or near the same period of time as Smith.
(Tr. 428-431, 463, 923, 1168-1169, 1274; Ex. 10) Smith also claimed
that when Maddigan and Clur made some of the statements she was in
the kitchen while they were sitting less than two feet away from her
on the other side of a screen. (Tr. 251, 347, 351) However, all
other former Treehouse employees who testified stated that the
tables Maddigan and Clur sat on were at least five to eight feet
away from the kitchen screen. (Tr. 468-473, 722, 1169-1170, 1173,
1189-1190; Exs. 17, WW, YY) Smith's testimony regarding Maddigan's
uttering the words "young" and "long legs" was inconsistent. At one
point, Smith stated she only heard the words "young" and "long
legs". (Tr. 247, 364-365) Later Smith stated she heard Maddigan
say "young girls behind the bar with long legs". (Tr. 366, 374-375,
380) Smith admitted that when Higgins allegedly remarked, "Isn't it
nice to have another 'Charlie' around", she only thought he might be
referring to Complainant. (Tr. 383-384) Smith testified that she
didn't tell Complainant about these statements because they would
hurt Complainant's feelings. (Tr. 653-654, 660, 664) However,
Complainant testified that Smith informed her of these statements in
October 1991, before the dates Smith claims the statements were
made. (Tr. 136-138) Smith inaccurately testified that prior to
October 1, 1991 Complainant had been working 5 or 6 shifts a week,
and had been reduced to 2 or 3 shifts. (Tr. 303-304, 309-310)
Smith also inaccurately testified that over the years there were few
changes in the Treehouse menus or clientele. (Tr. 317-321)
However, other Treehouse employees, including Complainant, testified
that the restaurant's menus and clientele often changed, usually
whenever there was a change in managers. (Tr. 146-149)
Furthermore, Smith testified that she was not aware that Complainant
had filed Department of Labor complainants against Respondent until
July 1993. (Tr. 660-661) In contrast, all the other Treehouse
employees who testified at the hearing stated that Complainant
freely discussed her Department of Labor complainants with employees
and customers and that all of the employees knew about the
complaints. (Tr. 186-187, 461, 904, 1074-1075, 1125, 1133-1134,
1198, 1287, 1298-1299, 1305-1306, 1331, 1500-1501; Ex. 10) Smith
testified that she liked Maddigan and thought he was a great guy.
(Tr. 273-274, 343). However, Complainant testified that Smith told
her she didn't care for Maddigan. (Tr. 141) Finally, because
Rabang and Evans were management, knew of Complainant's age
discrimination complaint, and knew that Smith was Complainant's
friend, it is highly unlikely that they would tell Smith that
Complainant was fired because she [Complainant] was "too old". For
these reasons, I conclude that the age statements Smith alleges were
not made.
I therefore conclude that the Executive Director has not
established direct evidence of intentional age discrimination
against Complainant.


2. circumstantial evidence of age discrimination
Intentional age discrimination under Chapter 378 may also be
established by circumstantial evidence. See, In Re. Smith / MTL
Inc. et. al., supra; Beshears v. Communications Services, Inc.,
supra, at 66,801.
Accordingly, in this case the Executive Director has the
initial burden of establishing a prima facie case of demotion
because of age by proving that:
1) Complainant performed her bartender duties in a
satisfactory manner;

2) despite such satisfactory performance, Respondent reduced
Complainant's hours of work; and

3) Complainant's hours of work were filled by a younger
employee.
EEOC v. Franklin Square School District, 24 BNA 594, 25 EPD 31,601
at 19,480 (E.D. NY 1980); Moore v. Sears, Roebuck and Co., 464 F.
Supp 357, 19 EPD 9036 at 6458 (N.D. Ga. 1979) aff'd 683 F.2d 1321,
30 EPD 33001 (11th Cir. 1982). In addition, statistical evidence
showing a pattern or policy of demoting or taking adverse actions
against older employees may be used to support an inference of
discriminatory intent. Polstorff v. Fletcher, 452 F.Supp 17, 18 EPD
8790 at 5266-5267 (D. Ala. 1978) (statistics showing that 30% of
non-veteran employees over age 55 but 3.5% of non-veteran employees
under age 55 adversely affected by a reduction in force (RIF) are
evidence of age discrimination); Moore v. Sears, Roebuck and Co., 19
EPD 9036 at 6457-6458 (statistical data showing a highly
disproportionate number of employees above age 55 terminated is
evidence of age discrimination).
The establishment of the above prima facie case raises a
presumption of discrimination because such actions, if otherwise
unexplained, are more likely than not based on unlawful
discrimination. In Re Smith / MTL; supra; Texas Dept. of Community
Affairs v. Burdine, 450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d. 207,
216, 25 EPD 31,544 at 19,240 (1981).
The burden then shifts to the respondent to rebut this
presumption by producing evidence that the actions were taken for
legitimate, nondiscriminatory reasons. If respondent carries this
burden of production, the presumption raise by the prima facie case
is rebutted. In Re Smith / MTL, supra; Texas Dept. of Community
Affairs v. Burdine, 25 EPD 31,544 at 19,240; St. Mary's Honor
Center v. Hicks, 113 S.Ct 2742, 125 L.Ed.2d 407, 61 EPD 42,322 at
75,583 (1993).
The Executive Director must then prove that Respondent's
proffered reason was not the true reason for its actions by showing
that: 1) the action was more likely motivated by a discriminatory
reason; or 2) the respondent's explanation is untrue. In Re Smith
/ MTL, supra; Texas Dept. of Community Affairs v. Burdine, supra;
St. Mary's Honor Center v. Hicks, supra. Evidence that the
proffered reason is incredible, together with the elements of the
prima facie case, may be sufficient to support a finding of
intentional discrimination. St. Mary's Honor Center v. Hicks,
supra. However, although this Commission may find intentional
discrimination where it determines that an employer's reasons are
pretextual, it is not compelled to do so. Id., at 75,584-75,585.[8]
The Executive Director still bears the ultimate burden of persuasion
that unlawful discriminatory reasons motivated the employer. Id., at
75,585.
In the present case, I conclude that the Executive Director has
not established, through circumstantial evidence, that Complainant
was demoted because of her age. The Executive Director did meet its
initial burden of establishing a prima facie case of age
discrimination when it proved that: 1) Complainant was qualified
for the position of bartender; 2) Respondent reduced Complainant's
hours; 3) younger persons (Evans, Jacobson and Jackson-Horton) were
scheduled to fill Complainant's old hours; and 4) Respondent at the
same time terminated two other older employees (Lowerre, then age 37
and Garrett, then age 44).[9]
Respondent attempted to rebut this prima facie case by stating
that Complainant's hours were reduced because business was poor and
because she, along with Lowerre and Garrett, failed to meet a $160
per shift sales quota.
The Executive Director showed that Respondent's proffered
reason was not true. Clur testified that prior to September 30,
1991 and after November 30, 1991 Respondent did not conduct such
surveys on bartender sales to evaluate bartender performance. (Tr.
1972, 2041) Rabang, who had been hired as overall manager in
October 1991, testified that she was never informed about the bar
sales survey and never saw the survey. (Tr. 1492, 1634) Finally,
the bar sales report itself was carelessly conducted and inaccurate.
(Tr. 1971, 1988-1992, 1996, 2108-2109) Complainant actually had
sales over $160 per shift.
However, while I find Respondent's proffered reason to be
untrue, I conclude that the Executive Director still failed to meet
its burden of persuasion that age was a motivating factor[10] in the
reduction of Complainant's hours and termination of medical
benefits. Instead, the preponderance of the evidence shows that the
real reason why Complainant was demoted was because Maddigan was
angry at her for filing what he believed to be a fraudulent workers'
compensation claim[11]. Smith testified that she spoke to Clancy
about Complainant's workers' compensation claim. (Tr. 683-684)
Clancy testified that Smith told her that Complainant had actually
injured herself during off hours at Taylor's work place.
Complainant testified that Evans told her that Maddigan wouldn't
allow Complainant to work more hours because he believed that
Complainant "faked" her workers' compensation claim. Evans also
told Complainant that Maddigan wanted to make Complainant quit so he
would not have to pay Complainant unemployment insurance.
Complainant also states this in her: a) October 12, 1991 log entry
(Ex. 1); b) Enforcement Section complaint filed on October 22, 1991
(Ex. OO); c) subsequent statement to that division made during that
period of time (Ex. HH); and d) first complaint filed with this
Commission on February 18, 1992. Maddigan and Clur admitted that
Clancy told them about Smith's statements regarding Complainant's
workers' compensation claim. (Tr. 2098-2100, 2137-2140, 2246) Clur
admitted he knew about Complainant's workers' compensation claim
prior to her reduction of shifts in October 1991. (Tr. 1781-1782)
Up until that point, Complainant enjoyed a cordial and steady
working relationship with Maddigan and Respondent.
Furthermore, the evidence shows no pattern of adverse action
against older employees. While both Lowerre (then age 37) and
Garrett (then age 44) were fired at the same time Complainant was
demoted, Lowerre was replaced by Evans, who was older (then age 38).
Clancy (waitress, then age 56) was retained. Rabang (general
manager, then age 48) was hired. Two months later, Kinney
(bartender, age 43) was hired. These older employees were hired
months before Complainant filed her first age discrimination
complaint with this Commission. Thereafter, 9 out of 10 bartenders
hired were over age 30; two of the 10 were over age 40. (See, Exs.
CC, CC-1; Appendix B) Clancy stated that Lowerre was fired because
Evans wanted his job and hours. (Ex. 10) Evans was hired as the
new bar manager and did take Lowerre's hours. The evidence also
shows that Evans wanted to fire Garrett because he had been rude to
her when she spotted him and because she wanted and did take
Garrett's hours.
For these reasons, I conclude that the Executive Director has
not established circumstantial evidence of intentional age
discrimination against Complainant.
3. disparate impact claim
In order to prevail in a disparate impact case, the Executive
Director need not show that a Respondent acted with a discriminatory
purpose. It only must show that a facially neutral employment
practice had a discriminatory impact on members of a protected
group. If such showing is made, use of the practice is unlawful
unless it is shown to be justified by business necessity. See, In
Re Shaw / Sam Teague Ltd., Docket No. 94-001-E-P (March 3, 1995)
(company's no extended leave policy has disparate impact on pregnant
employees); Dothard v. Rawlinson, 433 U.S. 321, 97 S.Ct. 2720, 53
L.Ed.2d 786, 14 EPD 7632 at 5105 (1977); Griggs v. Duke Power Co.,
401 U.S. 424, 91 S.Ct 849, 28 L.Ed.2d 158, 3 EPD 8137 at 6433-6434
(1971).
The disparate impact theory usually focuses on policies or
practices that are part of an employer's standard operating
procedure, as opposed to isolated or sporadic discriminatory acts.
International Brotherhood of Teamsters v. U.S., 431 U.S. 324, 97
S.Ct. 1843, 52 L.Ed.2d 396, 14 EPD 7579 at 4855 (1977). However, a
single employment decision that affects a class of employees may
also be challenged as having a disparate impact. State, County and
Municipal Employees (AFSME) Council 31 v. Ward, 978 F.2d 373, 60 EPD
41,839 at 72,912 (7th Cir. 1992) (single layoff decision may have
disparate impact on Black employees); Sengupta v. Morrison-Knudsen
Co., 804 F.2d 1072, 42 EPD 36,711 at 45,238 (9th Cir. 1986) (single
layoff decision may have disparate impact on minority employees).

To establish a prima facie case of disparate impact, the
Executive Director must: a) identify a facially neutral personnel
policy or practice[12]; and b) show that such policy or practice
has a significant disparate effect on members of a protected class.
Rose v. Wells Fargo, 902 F.2d 1417, 53 EPD 39,920 at 62,480 (9th
Cir. 1990); Connecticut v. Teal, 457 U.S. 440,102 S.Ct 2525, 73
L.Ed.2d 130, 29 EPD 32,820 at 25,821 (1982); Dothard v. Rawlinson,
supra, 14 EPD 7632 at 5105.
In the present case the Executive Director has not met its
burden of identifying a facially neutral personnel policy or
practice. The Executive Director first argues that Respondent
instituted a reduction in force which had an adverse impact on older
bartenders. (Post-hearing brief at 29) However, it also admits
that Respondent made no change in the number of shifts worked by
bartenders at the restaurant. (Post-hearing brief at 30)
Therefore, there was no reduction in force. (See also, Tr. 2028)
The Executive Director also argues that Respondent used a $160 per
shift average sales quota to terminate and demote bartenders.
However, the evidence shows that the Respondent really had no such
policy. Instead, the record shows that Respondent created the bar
sales survey and bar sales quota after October 1, 1991 to justify
the terminations of Lowerre and Garret and Complainant's demotion.
In addition, Complainant did meet the $160 per shift sales quota.
Furthermore, even if Respondent had instituted a reduction in
force or a policy of demoting bartenders who failed to meet a $160
per shift sales quota, the Executive Director has not shown that
such policies had a significant disparate impact on older
bartenders. The statistical evidence presented by the Executive
Director is not complete or reliable. The sampling comparing the
number of older public contact employees terminated/demoted
(Lowerre, Garrett and Complainant) to the total number of public
contact employees again omits Rabang and Clancy (both over age 30)
from the total number of public contact employees. (Tr. 765-773;
Ex. 13). The sampling comparing the number of older bar managers
(Lowerre) and bartenders (Complainant and Garrett) terminated or
demoted to the total number of bartenders, omits Evans, Boecker and
Brad Howard (all working bar managers over age 30) from the total
number of bartenders.[13] (Tr. 830-834; Ex. 13) Finally, the fact
that three other older employees (Evans, then age 38; Rabang, then
age 48; and Kinney then age 43) were hired immediately after
Lowerre, Garrett and Complainant were terminated/demoted weighs
heavily against any showing of significant disparate impact.
For these reasons, I conclude that the Executive Director has
not established a prima facie case of disparate impact based on age.
C. Disability Discrimination
The Executive Director alleges that Respondent demoted and
terminated Complainant's medical benefits because of her disability.
In order to establish a prima facie case of disability
discrimination in this case, the Executive Director must show that:
a) Complainant is a qualified person with a disability;
b) Respondent had knowledge of Complainant's disability;
c) Despite being qualified, Respondent changed the terms and
conditions of Complainant's work; and

d) Respondent did not accordingly change the work terms and
conditions of non-disabled employees.
The evidentiary burdens of production and proof then shift as
discussed in section III.B.2. above.
I conclude that the Executive Director has not established that
Respondent demoted Complainant because of her disability. The
Executive Director met its initial burden of establishing a prima
facie case of disability discrimination. Complainant was and is a
qualified person with a disability. The record shows that
Complainant is an insulin dependent diabetic.[14] Insulin dependent
diabetes is an impairment which substantially limits the major life
activity of day to day internal body functioning. Bentivegna v.
U.S. Dept. of Labor, 694 F.2d 619, 30 EPD 33,211 at 27,791 (9th Cir.
1982). The record also shows that Complainant was qualified to be
a bartender at Respondent Treehouse. She had worked as a bartender
for Respondent for over five years and had not received any
reprimands for performance. The record also shows that Maddigan and
Evans knew of Complainant's disability prior to reducing
Complainant's hours and terminating her medical benefits.
Complainant testified that she made favorable comments to Maddigan
about Respondent's medical plan because it paid for her insulin and
needles. In her April 24, 1992 affidavit, Evans stated that she
knew Complainant was a diabetic prior to the decision to reduce
Complainant's hours. (Ex. M) Finally, the record shows that
Respondent reduced Complainant's work hours, changed her shifts and
terminated her medical insurance benefits and did not take such
actions against non-disabled employees.
Respondent attempted to rebut this prima facie case by again
asserting that Complainant's hours were reduced because business was
poor and because she failed to meet a $160 per shift sales quota.
As stated in section III.B.2. above, I conclude that such reasons
are false.
However, as also discussed above, the weight of the evidence
shows that the real reason why Respondent demoted Complainant was
because Maddigan believed Complainant had made a fraudulent workers'
compensation claim, not because she was diabetic. Complainant had
worked for several years with Maddigan's and management's knowledge
that she was diabetic. Maddigan and management did not reduce
Complainant's hours or terminate her medical benefits until they
heard rumors about her workers' compensation claim. They tried to
force her to quit, not because she was diabetic, but because they
thought she had fraudulently obtained a large amount of workers'
compensation benefits. I therefore conclude that Complainant was
not demoted because of her disability.

D. Retaliation
The Executive Director alleges that Respondent Treehouse
retaliated against Complainant by: a) terminating her after she
filed a discrimination complaint with this Commission;
b) thereafter barring Complainant from its premises; and
c) thereafter providing negative references to potential employers.
H.R.S.  378-2(2) prohibits an employer from discharging,
expelling or otherwise discriminating against any individual because
that individual has opposed an unlawful discriminatory practice,
filed a complaint, testified, or assisted in any proceeding under
H.R.S. Chapter 378. Individuals participating in a Chapter 378
proceeding are protected even if their complaints lack merit, so
long as they reasonably believe that the employers' actions violate
the statute. Hearth v. Metropolitan Transit Comm., 436 F.Supp 685,
15 EPD 8077 at 7274-7275 (D. Min. 1977); Sias v. City Demonstration
Agency, 588 F.2d 692, 18 EPD 8773 at 5140 (9th Cir. 1978).
Retaliation may be shown by either direct or circumstantial
evidence. Ostrowski v. Atlantic Mut. Ins. Cos., 968 F.2d 171, 59
EPD 41,613 at 71,530-71,532 (2nd Cir. 1992). In the present case,
the Executive Director did not present any direct evidence of
retaliation. To establish a prima facia case of retaliation
prohibited by H.R.S. Chapter 378, the Executive Director must show
that:
1) the individual opposed a discriminatory practice made
unlawful by H.R.S. Chapter 378 or was a participant in a
Chapter 378 proceeding;

2) the individual's activity was protected;

3) the individual was subjected to adverse treatment by the
employer; and

4) there was a causal connection between the opposition or
participation and the adverse treatment.
Wallis v. J.R. Simplot Co., 26 F.3d 885, 64 EPD 43,074 at 79,989
(9th Cir. 1994); Gunther v. County of Washington, 623 F.2d 1303, 20
EPD 30,204 at 12,104 (9th Cir. 1979). The evidentiary burdens of
production and proof then shift as discussed in section III.B.2.
above.
The Executive Director did not show by a preponderance of the
evidence that Respondent Treehouse retaliated against Complainant
for filing a complaint under H.R.S. Chapter 378 when it terminated
her on March 17, 1992. The Executive Director did meet its initial
burden of establishing a prima facie case of retaliation.
Complainant filed a complaint with this Commission on February 19,
1992. Complainant's activities were protected. Although
Complainant openly complained about her reduction in hours, loss of
medical insurance and discussed her HCRC discrimination complaint
with other employees and some customers, such activities constituted
lawful opposition to what Complainant reasonably believed to be
discriminatory practices, and are protected under H.R.S.  378-2(2).
See also, EEOC v. Kallir, Philips, Ross, Inc., 401 F.Supp 66, 10 EPD
10,366 at 5542 (S.D.N.Y. 1975) (plaintiff who informed her co-
workers that she filed a claim of discrimination against defendant
and that they had a right to do likewise protected under Title VII).
In addition, Rabang testified that she would not have fired
Complainant for these activities alone. (Tr. 1074-1076, 1597-1598).
Less than one month after the complaint was filed, Complainant was
terminated.
Respondent attempted to rebut this prima facie case by stating
that Complainant was fired for causing a disturbance at the
Treehouse bar on March 16, 1992 and for submitting her second work
disability verification slip late. The Executive Director showed
that Respondent's proffered reasons were not true. Rabang testified
that she would not have fired Complainant only for the March 16,
1992 incident. In addition, the evidence shows that Complainant
timely submitted her second sick leave verification slip on March
10, 1992. (See, footnote 3, supra.)
However, while I find Respondent's proffered reason to be
untrue, I conclude that the Executive Director still failed to meet
its burden of persuasion that Complainant was fired in retaliation
for filing her civil rights discrimination complaint. Instead, the
preponderance of the evidence shows that real reason why Complainant
was fired was because after she injured her shoulder, Maddigan and
Rabang feared Complainant might re-injure herself at the Treehouse
and file another workers' compensation claim. In her second
complaint and interview notes, Complainant states that Rabang told
her that she was terminated because of management's concerns that
she might re-injure herself. (Ex. KK, Complaint dated 6/23/92)
Complainant also told Taylor that this was the reason for her
termination. (Tr. 995-996) Rabang admitted that she held such
concerns. (Tr. 1499) Maddigan stated that he felt it was
impossible for a small business to retain employees who suffered
serious off the job injuries. (Tr. 2190-2193; Ex. 9) Jackson-
Horton, Clancy and Clur heard Rabang comment about terminating
Complainant because of further injuries. (Tr. 1150, 1308, 1800)
Finally, Rabang testified that although she was angry at Complainant
for filing and discussing her Department of Labor complaints with
employees and customers, she did not take any action to terminate
Complainant until after Complainant injured her shoulder because
Maddigan did not want to be sued for retaliation. (Tr. 1074-1076)
The evidence also does not show that Respondent retaliated
against Complainant by barring her from the Treehouse premises.
Maddigan routinely barred all fired Treehouse ex-employees from the
premises, regardless of the reason for termination. Complainant
was a fired ex-employee. I therefore conclude that Respondent's
barring of Complainant from the premises was not in retaliation for
filing an HCRC complaint.
The Executive Director also claims that Respondent retaliated
against Complainant by giving negative references to potential
employers. The weight of the evidence does not show that such
negative references were given. Complainant testified that she had
a very positive interview for a bartending position at the Westin
Hotel with Virginia Baybado, the human relations specialist.
Complainant stated that the interview lasted for about one hour,
that Baybado told Complainant she had the job if she could get a
positive reference from the Treehouse, and that if Complainant
couldn't secure such reference, she should leave the reference off
her application. (Tr. 492-494, 496-497) Complainant then stated
that immediately after the interview she telephoned Clur, who
assured her that he would give her a positive reference, and then
called Baybado and told her to call Clur. (Tr. 70-71, 495-496)
Complainant testified that later that day, she and Anne Lewis
checked on jobs at the Marriott Hotel. At either the Westin or
Marriott, she had Lewis pose as a manager from the Marriott and call
Clur to find out what kind of reference he was giving. She claims
that Lewis called Clur, who confirmed that Complainant had worked at
Treehouse for seven years, but "was not eligible for rehire". (Tr.
71-72, 485-490)
However, Complainant's testimony was not credible. Baybado
testified that interviews for bartending positions usually do not
exceed 10 minutes. (Tr. 1360, 1362) Baybado testified that she
only screens and rates applicants and that restaurant managers make
the final decision regarding bartender hires. (Tr. 1364-1367)
Therefore, she would not have told any applicant that "the job was
theirs". (Tr. 1371-1372) Baybado also testified that she would
not have told anyone to omit a negative reference from their
application. (Tr. 1372) Lewis testified that after the interview
with Baybado, Complainant did not say anything about needing a
reference from the Treehouse, that she did not see Complainant call
anyone after the interview, and that after the interview she and
Complainant drove straight home. (Tr. 1680, 1685, 1706, 1711- 1712)
Lewis also testified that she and Complainant went to the Marriott
to apply for jobs on a different day and could not recall where or
when she [Lewis] allegedly made the phone call to Clur. (Tr. 1660,
1687, 1705-1706) Finally, Clur stated that his practice was to ask
for the caller's name, position, phone number and to call the
potential employer back before giving references by phone. He also
testified that he would only disclose an employee's dates of
employment and ending wage. (Tr. 2093-2094) For these reasons, I
conclude that the weight of the evidence does not show that
Respondent retaliated against Complainant by giving negative
references.

E. LIABILITY
Respondent reduced Complainant's hours, changed her shifts,
terminated her medical benefits and tried to make her quit because
it believed she filed a fraudulent workers' compensation claim.
Respondent also terminated Complainant after she injured her
shoulder because it feared that Complainant would re-injure herself
and file another workers' compensation claim. Unfortunately, such
claims are not actionable under this Commission's statutes.
Instead, Complainant should, and is in fact seeking relief pursuant
to other employment laws.
I therefore conclude that Respondent is not liable for
violating H.R.S.  378-2.


IV. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondent Treehouse Restaurant,
Inc. did not violate H.R.S.  378-2 and that it dismiss this
complaint.

DATED: Honolulu, Hawaii __________________________.

HAWAII CIVIL RIGHTS COMMISSION


__________________________
LIVIA WANG
Hearings Examiner


APPENDIX A


On February 19, 1992 Complainant Mary Anne Cole filed a
complaint with this Commission alleging age and disability
discrimination. On June 24, 1992 she filed a second complainant
alleging termination and failure to grant leave because of her
shoulder injury and termination in retaliation for filing her first
complaint.
On January 5, 1995 the Executive Director sent Respondent
Treehouse Restaurant Inc. a final conciliation demand letter
pursuant to Hawaii Administrative Rule (H.A.R.)  12-46-17.
Respondent received such letter on January 6, 1995.
On January 23, 1995 the complaint was docketed for hearing and
a Notice Of Docketing Of Complaint was issued.
The Executive Director filed its Scheduling Conference
Statement on February 1, 1995. Respondent filed its Scheduling
Conference Statement on February 9, 1995. A scheduling conference
was held on February 15, 1995 and the Scheduling Conference Order
was issued on February 21, 1995.
On March 21, 1995 the Hearings Examiner filed a Motion To
Extend Hearing Date from June 19, 1995 to August 23, 1995. On April
10, 1995 the Commission issued an order granting this motion.
On July 10, 1995 the parties filed a Stipulation To Continue
Discovery Deadline to July 28, 1995. On July 21, 1995 an Amended
Scheduling Conference Order was issued.
- i -

On July 21, 1995 Respondent filed a Motion To Continue Hearing.
On July 25, 1995 a telephone conference on this motion was held and
a Second Amended Scheduling Conference Order was issued.
On July 25, 1995 notices of hearing and pre-hearing conference
were issued.
On August 1, 1995 the Executive Director filed a Motion To
Continue Hearing. Attached to this motion was a confidential
settlement agreement from another docketed case. On August 2, 1995
this Hearings Examiner issued a Protective Order expunging the
settlement agreement from the pleadings, directing counsel for
Respondent not to read the agreement and directing counsel for
Respondent to return the settlement agreement to the Hearings
Examiner.
On August 2, 1995 a telephone conference was held on the
Executive Director's Motion To Continue Hearing. On August 3, 1995
an order denying the Executive Director's motion was issued.
On August 3, 1995 the Hearings Examiner filed an affidavit
regarding Respondent's return of the confidential settlement
agreement unopened and its destruction.
On August 3, 1995 Respondent filed a Motion To Compel Answers
To Interrogatories.
On August 4, 1995 the parties filed their pre-hearing
conference statements. Respondent also filed a Motion For Partial
Summary Judgment. The Executive Director also filed a Motion To
- ii -

Compel Answers To Interrogatories and Production of Documents and
for Sanctions for Destruction of Records.
On August 7, 1995 the Executive Director filed a Memorandum in
Opposition To Respondent's Motion To Compel. On August 8, 1995
Respondent filed a Motion To Strike Executive Director's Motion to
Compel. On August 8, 1995 the Executive Director attempted to file
a memorandum in opposition to Respondent's Motion For Partial
Summary Judgment after the response deadline. This memorandum was
not accepted for filing.
Hearings on these three motions were held on August 8, 1995 at
the Hawaii Civil Rights Commission conference room, 888 Mililani
Street, 2nd floor, Honolulu, Hawaii. In attendance were: Deputy
Director G. Todd Withy, Esq. on behalf of the Executive Director,
Executive Director Linda C. Tseu and Frederick R. Troncone, Esq. on
behalf of Respondent.
At the hearing on Respondent's Motion For Partial Summary
Judgment, the Executive Director filed an Affidavit of G. Todd Withy
in opposition to the motion. The affidavit was not made on personal
knowledge of the facts and did not comply with HRCP Rule 56(e),
which requires a non-moving party to set forth facts, based on
personal knowledge, that show a genuine issue for hearing.
Pursuant to HRCP Rule 56(f) the Hearings Examiner granted the
Executive Director additional time to file affidavits in opposition
to Respondent's Motion for Partial Summary Judgment.
On August 8, 1995 a pre-hearing conference was held and on
August 10, 1995 a Pre-hearing Conference Order was issued. On
August 9, 1995 orders granting in part Respondent's motion to
- iii -

compel, granting in part Executive Director's motion to compel and
denying Respondent's motion to strike were issued.
On August 10, 1995 the Hearings Examiner issued a Protective
Order over the Executive Director's Exhibit 2, which contains
Respondent's income tax returns for the years 1990, 1991 and 1992.
On August 11, 1995 the Executive Director filed supplemental
affidavits in opposition to Respondent's Motion for Partial Summary
Judgment. Later that day, an order denying Respondent's Motion for
Partial Summary Judgment was issued.
On August 11, 1995 Respondents also filed a Motion To Strike
Executive Director's Expert's Report and to Exclude Expert Witness
Testimony. This motion was treated as a motion in limine and on
August 14, 1995 it was orally denied.
Pursuant to H.R.S. Chapters 91 and 368, the contested case
hearing on this matter was held on August 14-16, 1995 at the second
floor board room, Maui Coast Hotel, 2259 South Kihei Road, Kihei,
Maui, Hawaii; August 17 at the conference room of the law office of
Robert Rowland, 33 Lono Ave., suite 470, Kahului, Maui, Hawaii;
August 25 at the Hawaii Civil Rights Commission conference room, 888
Mililani Street, 2nd floor, Honolulu, Hawaii; August 28-30 at
conference room 117, Maui Islander Hotel, 660 Waihee Street,
Lahaina, Maui, Hawaii and September 11, 1995 at the Hawaii Civil
Rights Commission conference room. The Executive Director was
represented by Deputy Director G. Todd Withy, Esq. Complainant Cole
was present during portions of the hearing. Respondent was
represented by Frederick R. Troncone, Esq. After the presentation
- iv -

of the Executive Director's case, Respondent moved for involuntary
dismissal. After considering the arguments presented, the Hearings
Examiner orally denied Respondent's motion.
On September 27, 1995, supplemental exhibits were admitted into
evidence and an order closing hearing was issued.
On October 27, 1995 the parties filed post-hearing briefs.
On November 8, 1995 the Hearings Examiner filed a Motion To
Extend Time To File Proposed Decision from November 26, 1995 to
January 19, 1996 to allow for the completion of the hearing tape
transcripts. On November 16, 1995 the Commission issued an order
granting this motion.



- v -

APPENDIX B


(complied from Exhibits 3, 4, CC, CC-1)



bartenders / bar managers hired between 8/15/90 and 12/23/93


name job title hire date age at hire

Patrick Silveira bartender 1/16/91 25
Dennis Boecker bar mgr. 2/9/91 30
Mary Jane Church bar mgr. 4/23/91 26
Marita Corr bartender 5/3/91 24
Matt Jacobson bartender 5/22/91 25
Thomas Lowerre bar mgr. 7/24/91 37
Vicky Panto bartender 9/91 28
Linda Evans bar mgr. 9/30/91 38
Sarah Morison bartender 10/8/91 23
Lori Jackson-Horton bartender 10/28/91 29
Norman Ross bartender 11/29/91 23
Timothy Kinney bartender 1/10/92 43

Terrance Jensen bartender 5/4/92 37
Randy Plumley bartender 10/20/92 29
Chris Randolph bartender 11/12/92 31
John Gibson bartender 12/21/92 36
Brad Howard bartender 1/27/93 33
Tricia Albering bartender 2/93 38
Gary Hyder bar mgr. 5/26/93 42
Robert Hayden bar mgr. 10/29/93 38
Rodney Saldin bartender 11/16/93 39
James Sullivan bartender 12/23/93 42
---------------------------------

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; "Ex."
followed by a number refers to the Executive Director's exhibits;
"Ex." followed by a letter refers to the Respondent's exhibits;
"Ex." followed by the letters "HE-___" refers to exhibits requested
and obtained by the Hearings Examiner.

3. Exhibit O states on three separate entries that the
3/10/92 sick leave verification slip was received on 3/16/92, which
was the day before Complainant was scheduled to work. During her
testimony, Rabang maintained that Complainant did not bring the sick
leave verification slip in until 3/17/92 at 12:00 p.m. after
Complainant's shift started and that she [Rabang] had incorrectly
dated the slip and her notes. (Tr. 1108-1117) I find Rabang's
testimony not credible and that Complainant actually produced the
sick leave verification form to Clur on March 10, 1992 immediately
after her doctor's appointment, in order to obtain a TDI form. See,
finding of fact number 51.

4. The unemployment insurance claims examiner and hearings
officer found that Complainant was not qualified for unemployment
insurance benefits because she had been lawfully fired for creating
a disturbance at the Treehouse on March 16, 1992. I decline to
adopt this conclusion because during this proceeding, Rabang
testified that she would not and did not fire Complainant solely
because of the March 16, 1992 incident.

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

6. The Executive Director argues that 8 out of 10 bartenders
hired during the period after Johnson's tenure until the date
Complainant filed her age discrimination complaint were under age
30. (See, Executive Director's Post-hearing Brief at 2 and its
attached Exhibit 1.) However, this statistic is inaccurate because
it omits the hirings of Dennis Boecker, then age 30 and Linda Evans,
then age 38. (See, Exs. 3, 4, CC, CC-1, and Appendix B) And, as
noted above, this statistic is irrelevant because the majority of
bartenders actually employed and working most of the shifts during
this period of time were over 30 years old.

7. Complainant's veracity was questionable during many parts
of the hearing. At one point, she testified that she looked at
newspaper job ads only 2-3 times a week because she didn't buy
newspapers every day. (Tr. 622) However her live-in fiance
testified that Complainant bought and read the newspapers every day.
(Tr. 1730) See also discussion of Complainant's testimony regarding
negative job references on pages 44-46, infra. In addition, at the
hearing Complainant spoke or gestured to several witnesses while
they were testifying, despite repeated admonishments not to. (Tr.
1064, 1645, 1863, 2155-2156)

8. For instance, in Hicks the Supreme court held that the
district court could disbelieve the employer's proffered reasons for
demoting and discharging a Black employee, yet still conclude that
personal, rather than racial reasons motivated the employer to take
such actions. 61 EPD 42,322 at 75,583

9. The Executive Director attempted to show discriminatory
intent through statistics comparing the age groupings of Treehouse
public contact employees to the age groupings of the general
population of Maui County. See, Tr. at 762-764, 773-790, 793; Ex.
13. However, the underlying data used by the Executive Director is
incomplete. Clancy (then age 56) and Rabang (then age 48) were not
included in the sampling of public contact employees. Dr. Hammer,
the Executive Director's expert witness, testified that Rabang was
not included in the sampling because she was a manager, and managers
tend to be older persons. However, Dr. Hammer did include Lowerre
and Evans in the sampling, even though these employees were also
managers. Rabang, though a general manager, did work the bar and
waitress shifts of absent employees and was a public contact
employee. No reason was given for omitting Clancy, who at the time
was a non-managing waitress.

In addition, Dr. Hammer's analysis compares the age groupings
of Respondent's public contact employees to the age groupings of the
entire Maui County population. (See, Tr. 764, 765-770; Ex. 13) At
minimum, a relevant comparison should be made to the age groupings
of the community from which the employer draws its employees.
International Brotherhood of Teamsters v. United States, 431 U.S.
324, 97 S.Ct. 1843, 52 L.Ed.2d 396, 14 EPD 7579 n. 17 at 4872
(1977) (number of Black line drivers compared to population of
Blacks living in areas surrounding terminals); Gibson v.
Supercargoes & Checkers (ILWU), 543 F.2d 1259, 12 EPD 11,215 at 5606
(9th Cir. 1976) (number of Blacks employed as casual clerks compared
to Blacks in the city of Portland); NAACP, Newark Branch v.
Harrison, 940 F.2d 792, 57 EPD 40,908 at 67,858 (3rd Cir. 1990)
(number of Black municipal employees compared to four counties from
which town drew employees). Rabang, Maddigan and Clur testified
that Respondent recruited only by word of mouth from the Lahaina
area. (Tr. 1084-1085, 2086, 2123) Clur testified that all but one
Treehouse employee resided in the Lahaina area. (Tr. 2101)
Complainant and Taylor testified that they and other Lahaina
residents only worked in the Lahaina area because the commute to or
from Lahaina was long and dangerous, and because there is no public
transportation on the island. (Tr. 605-606, 608-609, 976-977, 1010-
1012) The record thus shows that the labor market in the Lahaina
area is separate from the rest of Maui County. However, no evidence
was presented to show that the age groupings of the entire
population of Maui County (which includes the Kahului-Wailuku, Kula
and Keanae areas as well as the islands of Molokai and Lanai)
correlate to the age groupings of the population in the Lahaina
area. (Tr. 835-836) Dr. Hammer herself was not familiar with Maui
county and did not know whether Lahaina was a rural or urban area.
(Tr. 835) Therefore, the general county population data used by the
Executive Director was not shown to be appropriate in this case.

Furthermore, federal courts have indicated when special skills
are required to fill particular jobs, use of work force data from
the appropriate geographic area is preferable to general total
population data. This is because general population data may not
provide a true picture of worker availability. Hazelwood School
District v. United States, 433 U.S. 299, 97 S.Ct 2736, 53 L.Ed.2d
768, 14 EPD 7633 at 5118 and n. 13 at 5122 (1977) (in race
discrimination case, proper comparison was between the Black
teachers in a school district's teaching staff and the number of
Black teachers in the relevant labor market); EEOC v. United
Virginia Bank/Seaboard National, 615 F.2d 147, 22 EPD 30,598 at
14,210-14,211 (4th Cir. 1980) (comparison between Blacks in general
work force and Black bank staff not probative to establish race
discrimination since bank positions required special skills); Piva
v. Xerox Corp. 654 F.2d 591, 27 EPD 32,147 at 22,239 (9th Cir. 1981)
(proper comparison was between women in labor force qualified to be
Xerox salespersons and number of women salespersons employed by
Xerox). In the present case, Complainant testified that bartenders
in the state of Hawaii must obtain manager's liquor card licenses in
order to work without supervision. At the Treehouse, bartenders
were scheduled to work alone except on a few exceptionally busy
nights. The evidence shows that except for one bartender (Jacobson)
who was trained in house, all other bartenders held manager's liquor
cards and had prior bartending experience before being hired by
Respondent. (Tr. 888-889, 1152-1153, 1303-1304; Ex. HE-2) The
Executive Director did not show that the age groupings of the entire
population of Maui county correlate to the age groupings of the
applicable work force (i.e. experienced bartenders with manager's
liquor cards) in the Lahaina area. (Tr. 836-837)

In addition, many federal courts prefer to compare an
employer's work force to applicant flow data since such data is not
over broad and most likely reflects a more accurate labor market.
See, Reynolds v. Sheet Metal Workers, 498 F.Supp. 952, 22 EPD
30,739 at 14,816 (D.D.C. 1980) aff'd. 702 F.2d 221, 25 EPD 31,706
(D.C. Cir. 1981); NAACP v. Prince George's County, 737 F.2d 1299, 34
EPD 34,506 at 34,233 (4th Cir. 1984) (upholding district court's
reliance on applicant flow statistics and rejection of work force
statistics of surrounding geographical area); U.S. v. County of
Fairfax, 629 F.2d 932, 23 EPD 31,117 at 16,789 (4th Cir. 1980)
(applicant flow statistics more reliable than population data from
the general metropolitan area when record showed that few Blacks
from a nearby city sought employment with county because of distance
and transportation factors). The Executive Director also failed to
show that the age groupings of the entire population of Maui county
correlate to the age groupings of applicants who applied for jobs at
the Treehouse. (Tr. 835)

Finally, the Executive Director argues that Respondent's hiring
practices from the period after Johnson's tenure until Complainant
filed her age discrimination complaint is evidence of discriminatory
intent. As stated in footnote 6, supra, such statistics and
argument are inaccurate and irrelevant.

Therefore, I conclude that the Executive Director's statistics
are not probative to support an inference of intentional age
discrimination.

10. "Motivating factor" means that, if this Commission were
to ask the Respondent at the moment it made its decision to reduce
Complainant's hours what its reasons were, and if the Respondent
gave a truthful response, one of those reasons would be
Complainant's age. See, Price Waterhouse v. Hopkins, 49 EPD 38,936
at 57,013.

11. Because the validity of Complainant's 1988 workers'
compensation claim was not litigated during this proceeding, I do
not make a determination on this issue.

12. However, if the elements of a respondent's decision making
processes cannot be separated for analysis, the decision making
process may be analyzed as one employment practice. See, 42 U.S.C.
 2000e-2(k)(1)(b)(i) as amended by the Civil Rights Act of 1991 
105(a) In this case, the Executive Director does not claim that the
decision making process cannot be separated for analysis.

13. Dr. Hammer, however, included these bar managers in the
sampling of all public contact employees. (Tr. 766-768; Ex. 13)

14. The Executive Director did not allege that Complainant's
back and/or shoulder injuries constituted disabilities.