Colefin.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 ) FINAL DECISION AND ORDER
MARY ANNE COLE, )
)
v. )
)
TREEHOUSE RESTAURANT, INC. )
)
Respondent. )
______________________________)
FINAL DECISION AND ORDER
The Hearings Examiner's Proposed Findings of Fact, Conclusions
of Law, and Recommended Decision were filed on January 5, 1996. The
Executive Director filed Written Exceptions on January 29, 1996, and
requested oral argument. Treehouse, Inc. ("Treehouse"), Respondent,
filed a Statement in Support on February 12, 1996.
Oral argument was held on February 26, 1996, 2:00 p.m. before
Commissioners Amefil Agbayani, Richard Port, Jack Law, Faye Kennedy,
and William Hoshijo. G. Todd Withy, Esq., and Karl K. Sakamoto,
Esq., appeared on behalf of the Executive Director[1]. Frederick R.
Troncone, Esq., appeared on behalf of Treehouse. Also present were
Linda C. Tseu, Executive Director, and Mary Anne Cole ("Cole"),
Complainant.
I. BRIEF OF AMICUS
On February 26, 1996, the Commission found good cause to accept
the Brief of Amicus filed by the National Employment Lawyers
Association-Hawaii Chapter ("NELA") because of 1) its interest in a
legal issue to be decided (whether the Commission should adopt the
decision in St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113
S.Ct. 2752 (1993)?); and 2) the assistance that the brief may
provide the Commission in making its decision. NELA is an
organization of attorneys representing employees in discrimination
cases. The parties were given ten (10) days to file written
responses to the Brief of Amicus. Both responses were filed on
March 7, 1996, and are made a part of the record herein. Also made
a part of the record is the Executive Director's revised Table of
Contents provided at oral argument.
II. PUBLIC POLICY OF THE STATE OF HAWAI'I AGAINST DISCRIMINATION
The Hawai'i Constitution provides:
No person shall be deprived of life, liberty or property
without due process of law, nor be denied the equal
protection of the laws, nor be denied the enjoyment of the
person's civil rights or be discriminated against in the
exercise thereof because of race, religion, sex or
ancestry.
(Emphasis added.) The United States Constitution does not have a
comparable provision against discrimination in the exercise of one's
civil rights.
The Hawai'i constitutional mandate is further amplified by
H.R.S. 368-1, the Civil Rights Commission statute, which provides,
in part:
The legislature finds and declares that the practice of
discrimination because of race, color, religion, age, sex,
sexual orientation, marital status, national origin,
ancestry, or disability in employment, housing, public
accommodations, or access to services receiving state
financial assistance is against public policy.
(Emphasis added.) The Commission has jurisdiction to enforce the
employment discrimination law, Part I of H.R.S. Chapter 378, which
prohibits employment discrimination because of age and disability,
H.R.S. 378-2(1)(A), and retaliation against a person who files a
discrimination complaint. H.R.S. 378-2(2).
The Hawai'i Supreme Court has recognized the strong public
policy of our State against racial discrimination embodied in the
Constitution and numerous other statutes, including the employment
discrimination law. Hyatt Corp. v. Honolulu Liquor Commission, 69
Haw. 238 (1987). In Ross v. Stouffer Hotel Company (Hawai'i) Ltd.,
Inc., 76 Haw. 454, 464 (1994), the Court recognized that the
employment discrimination law, "modif[ied] the employment at-will
doctrine to further an important public policy." (Emphasis added.)
Thus, the Hawai'i Constitution, statutes, and case law clearly
establish that discrimination in employment is against public
policy.
III. PROOF OF DISPARATE TREATMENT BY CIRCUMSTANTIAL EVIDENCE
A. COMPLAINANT'S BURDEN OF PROVING A PRIMA FACIE CASE
The Commission has followed the prima facie case standards in
McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct 1817 (1973), and
its progeny for establishing disparate treatment discrimination
based upon circumstantial evidence. McDonnell Douglas recognized
that often there is no direct evidence of discriminatory intent,
such as a decision maker's statement that a certain action is being
taken because of an individual's protected basis, and that
circumstantial evidence can be used to prove discriminatory intent.
United States Postal Service Bd. of Governors v. Aikins, 460 U.S.
711, 716 (1981) ("There will seldom be 'eyewitness' testimony to the
employer's mental processes.") "In order to facilitate the orderly
consideration of relevant evidence, [McDonnell Douglas] devised a
series of shifting evidentiary burdens that are 'intended
progressively to sharpen the inquiry into the elusive factual
question of intentional discrimination.'" Watson v. Ft. Worth Bank
& Trust, 487 U.S. 977, 986, 108 S.Ct. 2777 (1988) (quoting Texas
Dept. of Community Affairs v. Burdine, 450 U.S. 248, 255, n 8, 101
S.Ct. 1089 (1981) and brackets added.)
McDonnell Douglas places the initial burden of proof upon a
complainant to establish a presumption of discriminatory intent by
proving a prima facie case through circumstantial evidence. The
elements of a prima facie case will vary based upon the type of
adverse action taken. McDonnell Douglas, 411 U.S. at 802, n 13.
For example, the elements of a prima facie case for a demotion
because of age are: 1) complainant performed the job duties in a
satisfactory manner; 2) despite satisfactory performance, employer
reduced complainant's work hours; and 3) complainant's hours were
filled by a younger employee. Moore v. Sears, Roebuck and Co., 464
F.Supp. 357 (N.D. Ga. 1979), aff'd 683 F.2d. 1321 (11th Cir. 1982);
EEOC v. Franklin Square Union Free School District, 25 E.P.D.
31,601 (E.D. N.Y. 1980). A prima facie case must be established by
a preponderance of the evidence.
Cole filed a complaint which alleged that her hours were
reduced and her medical benefits terminated because of her age and
disability. At the time of the reduction in hours, Cole was 47
years old. She had worked for five years as a bartender at
Treehouse. The evidence showed that Cole had been performing her
job duties satisfactorily and that substantially younger persons
(Linda Evans (38 years), Matt Jacobson (25 years), and Lori Jackson-
Horton (29 years)) had been scheduled to fill her old hours.
Recommended Decision at 31. Cole is a diabetic, who requires daily
insulin shots. The evidence also showed that Treehouse knew that
she was a diabetic and that non-disabled employees did not have
their hours reduced and medical benefits terminated. Cole alleged
that as a result of filing the complaint, she was terminated in
retaliation for such filing.
The Hearings Examiner concluded that prima facie cases were
established for age, disability, and retaliation discrimination.
Recommended Decision at 31, 39-40, and 42-43. The Commission adopts
the prima facie case standards for age, disability, and retaliation
discrimination used by the Hearings Examiner. Treehouse concedes
that a prima facie case was made out for each protected basis. Oral
Argument Transcript at 46. Thus, the Commission adopts the Hearing
Examiner's Conclusions of Law that prima facie cases were
established for age, disability, and retaliation discrimination.
B. RESPONDENT'S BURDEN AFTER PROOF OF A PRIMA FACIE CASE
Proof of a prima facie case implies discrimination because "we
presume these acts, if otherwise unexplained, are more likely than
not based on the consideration of impermissible factors." Furnco
Constr. Corp. v. Waters, 438 U.S. 567, 577 (1978) (citation
omitted); Burdine, 450 U.S. at 254. After a prima facie case is
established, respondent must articulate legitimate non-
discriminatory reasons for its actions. McDonnell Douglas, 411 U.S.
at 802. In order to do so, a respondent must introduce evidence of
the reasons for its actions. If respondent does not introduce any
evidence of its legitimate non-discriminatory reasons, complainant
is entitled to judgment that the action was discriminatory.
Burdine, 450 U.S. at 254.
In this case, Treehouse introduced evidence of several reasons
to justify the reduction in hours and termination. These reasons
included low bar sales to justify the reduction in hours, and
causing a disturbance at work and failing to timely provide a
doctor's slip to justify the termination. The Hearings Examiner
concluded that all of the proffered reasons were pretextual or
false. The survey of bar sales was created and used on that one
occasion; the manager, Sharlene Rebang, was never informed about nor
saw the survey; and the survey was inaccurate--Cole's bar sales
actually exceeded the minimum amount set. Finding 33; Recommended
Decision at 33. Rebang disavowed the disturbance as being grounds
for termination; and the doctor's slip was actually submitted on
time. Findings 51 and 53; Recommended Decision at 43. Thus, all of
Treehouse's proffered reasons were pretextual. The Commission
determines there was no error in the findings that the proffered
reasons were pretextual and adopt such findings.
C. APPLICABILITY OF HICKS CASE
Despite finding that the proffered reasons were pretextual, the
Hearings Examiner went further and found that the reasons for the
adverse actions were non-discriminatory. The Hearing Examiner
relied upon St. Mary's Honor Center v. Hicks, supra, where the
United States Supreme Court held that even if pretext is proven
there must be a finding that the adverse actions were taken for
discriminatory reasons. Hicks held that while proof of pretext
alone may be sufficient to support a finding of discriminatory
intent, an ultimate determination of discriminatory intent must
still be made. 113 S.Ct. at 2749, 2752.
The Hearings Examiner found that Cole's hours were reduced to
end her medical benefits and force her to quit because of a belief
that she had earlier filed a fraudulent workers' compensation claim
for a back injury. The Examiner also found that Treehouse had
terminated Cole, not in retaliation for filing the discrimination
complaint, but because of the workers' comp claim[2], wanting to
disqualify her from receiving unemployment benefits, and a concern
that she might reinjure a shoulder[3]. Thus, the Examiner concluded
that Treehouse did not discriminate when it acted because of these
other reasons.
A narrowly-divided Supreme Court decided Hicks based upon Rule
301 of the Federal Rules of Evidence (Fed.R.E.). Under this rule,
a presumption does not shift the burden of proof from complainant to
respondent. Instead, "a presumption imposes on the party against
whom it is directed the burden of going forward with evidence to
rebut or meet the presumption but does not shift the burden of
proof." Rule 301, Fed.R.E. Thus, the burden of proof remains with
complainant under the Fed.R.E.
By contrast, the Hawaii Rules of Evidence (Haw.R.E.) contain
two different rules on presumptions. Rule 303, Haw.R.E., mirrors
Rule 301, Fed.R.E., and does not shift the burden of proof.
Treehouse contends that the Commission should apply Rule 303,
Haw.R.E. However, the Executive Director contends that Rule 304,
Haw.R.E., for which there is no federal counterpart, should be
applied. It provides:
(a) General rule. A presumption established to implement
a public policy other than, or in addition to,
facilitating the determination of the particular action
in which the presumption is applied imposes on the party
against whom it is directed the burden of proof.
(b) Effect. The effect of a presumption imposing the
burden of proof is to require the trier of fact to assume
the existence of the presumed fact unless and until
evidence is introduced sufficient to convince the trier
of fact of the non-existence of the presumed fact. Except
as otherwise provided by law or by these rules, proof by
a preponderance of the evidence is necessary and
sufficient to rebut a presumption established under this
rule.
(Emphasis added.)
Given the State's strong public policy against discrimination,
the Commission concludes that Rule 304, Haw.R.E., applies[4]. After
proof of a prima facie case, the burden of proof shifts to
respondent to prove that it acted for its proffered legitimate non-
discriminatory reasons[5]. If respondent's burden is not carried,
it must be concluded that respondent acted with discriminatory
intent. In Schweigert v. Provident Life Ins. Co., 503 N.W.2d 225
(N.D. 1993), the North Dakota Supreme Court relied upon its rule,
similar to Rule 304, Haw.R.E., that a presumption shifts the burden
of proof in deciding not to follow Hicks. Two other states have
also declined to follow Hicks for other reasons. See, Blare v.
Husky Injection Molding Systems Boston, Inc., 419 Mass. 437, 646
N.E.2d 111 (1995); Hasnudeen v. Onan Corp., 531 N.W.2d 891
(Minn.App. 1995).
D. POLICY REASONS FOR NOT FOLLOWING HICKS
Shifting the burden of proof is a fair way to carry out the
McDonnell Douglas goal of sharpening the focus on "the elusive
factual question of intentional discrimination." Watson, 487 U.S.
at 986 (citing Burdine, 450 U.S. at 255, n 8.) A business does not
act in a totally arbitrary manner, Furnco, 438 U.S. at 577; and it
is reasonable to require a business to prove that its actions were
taken for its proffered legitimate non-discriminatory reasons.
Respondent should have such evidence in its business records or the
testimony of decision makers. If such evidence is introduced and
deemed credible, respondent's burden is carried, the presumption is
rebutted, and the conclusion must follow that it acted for its
proffered legitimate non-discriminatory reasons.
Respondent is not limited in the number of reasons it may rely
upon, but, it should not be exonerated by reasons not proffered or
reasons disavowed. There should be no incentive for respondent to
withhold any of its reasons; nor should respondent be allowed to
deny a reason yet derive a benefit if the trier of fact believes
that it is the real reason for the adverse action. It is unfair to
require complainant to disprove the proffered reasons as well as
"all possible nondiscriminatory reasons that a factfinder might find
lurking in the record." Hicks, 113 S.Ct. at 2762 (Souter, J.,
dissenting). Complainant is entitled to have a full and fair
opportunity to squarely address the proffered reasons to prove
pretext[6].
Both parties will benefit from this limitation on the issues.
During discovery, if respondent states its legitimate non-
discriminatory reasons, complainant does not have to inquire into
disavowed or non-proffered reasons or ask respondent's witnesses
additional questions to establish irrevocably that there are no
other possible reasons for its actions. Id. at 2758 (Souter, J.,
dissenting) ("It is unfair and utterly impractical to saddle
victims of discrimination with the burden of . . . eliminating the
entire universe of possible nondiscriminatory reasons for a
personnel decision.") At the hearing, the focus should be upon the
proffered reasons for purposes of adjudicatory economy. Id. at 2763
(Souter, J., dissenting) ("The majority's scheme, therefore, will
promote longer trials and more pre-trial discovery, threatening
increased expense and delay in Title VII litigation for both
plaintiffs and defendants, and increased burdens on the judiciary.")
The irony of the instant case is that both parties have taken
exception to the finding that the allegedly fraudulent workers' comp
claim was the reason for the adverse actions[7].
Shifting the burden of proof is also consistent with existing
practice and common sense. Normally, respondent will not only
articulate its legitimate non-discriminatory reasons but attempt to
prove that such reasons actually motivated it. Mastie v. Great
Lakes Steel Corp., 424 F.Supp. 1299, 1308 (E.D. Mich. 1976) ("[T]he
practical distinction between the burden of going forward with the
evidence and the burden of proof to establish a nondiscriminatory
reason for the action taken is, in many instances, a distinction
without substance.") At the same time, complainant will attempt to
prove that the reasons are pretextual. It can be said that both
parties have opposite but complimentary burdens of proof. In
effect, complainant also has the burden of proving pretext because
pretext and legitimate non-discriminatory reasons are opposite sides
of the same coin. Proof of one precludes proof of the other. Thus,
if complainant proves more likely than not that all of the proffered
reasons are pretextual, respondent has not shown that the action was
taken for a legitimate non-discriminatory reason, and the conclusion
must follow the action was discriminatory[8]. However, if
respondent proves more likely than not that one of its proffered
legitimate non-discriminatory reasons actually motivated its action,
complainant has failed to prove the reason is pretextual, and the
conclusion must follow the action was taken for non-discriminatory
reasons.
In this case, because of the finding of pretext, Treehouse did
not carry its burden of proof. Thus, the Commission does not adopt
the findings that Treehouse acted because of the non-proffered
reasons and finds instead that Treehouse discriminated against Cole
because of her age and disability and in retaliation for filing a
discrimination complaint in violation of H.R.S. 378-2.
To summarize, in cases where there is a prima facie case of
discrimination shown through circumstantial evidence, Rule 304,
Haw.R.E., applies. Initially, complainant has the burden of proving
a prima facie case by a preponderance of the evidence. Upon proof
of a prima facie case, there is a presumption that the adverse
action was taken for discriminatory reasons. The burden of proof
shifts to respondent to establish that it acted because of its
proffered legitimate non-discriminatory reasons. If respondent
carries its burden of proof by a preponderance of the evidence, the
presumption is rebutted, and there must be a finding of no
discrimination. If respondent does not carry its burden because
complainant shows that the proffered reasons are pretextual, the
presumption that the action taken for discriminatory reasons has not
been rebutted, and a finding must be made that respondent has
discriminated against complainant.
IV. OTHER EVIDENCE OF DISCRIMINATORY INTENT
A. DIRECT EVIDENCE OF DISABILITY DISCRIMINATION
The Hearings Examiner found that Treehouse had reduced Cole's
hours to end her medical insurance so that she would quit in order
to retaliate for the allegedly fraudulent workers' comp claim.
Findings 25 and 30. This was based upon the testimony of Maddigan
and the Treehouse comptroller that Maddigan had directed that Cole's
work shifts be reduced, and Cole's testimony that the bar manager,
Linda Evans, had told her that Maddigan didn't want her to work more
than two shifts so that she would lose her medical benefits and
quit. The Commission adopts Findings 25 and 30 that Treehouse
reduced Cole's hours to end her medical benefits so that she would
quit but does not adopt the portions related to the workers' comp
claim.
The provision of medical benefits for employees working more
than 20 hours per week is required by law, H.R.S. Chapter 393, and
is a term, condition, or privilege of employment. An employer
cannot discriminate against an employee in the terms, conditions,
and privileges of employment because of a protected basis. H.R.S.
378-2(A). When the loss of medical benefits is because of
complainant's protected basis, respondent has acted with
discriminatory intent. That the discriminatory act may have been
part of a larger scheme to retaliate for the workers' comp claim
does not excuse the discriminatory practice.
Treehouse knew that Cole was a diabetic who needed insulin on
a daily basis. Diabetes is a disability because it is a physical
impairment which substantially limits a major life activity. H.R.S.
378-1. The loss of medical benefits was designed to impact upon
Cole's disability. The Commission finds especially probative
Treehouse's refusal to give Cole another shift while it was
continuing to hiring other bartenders. See, Part IV, B, infra.
Given her experience and long tenure, it could have easily given
Cole another shift in light of her need for medical benefits.
Treehouse's desire to force Cole to quit by ending her medical
benefits constitutes discrimination because of disability in the
terms, conditions, and privileges of employment. Thus, the
Commission finds there is also direct evidence that Treehouse
discriminated against Cole because of her disability.
When there is direct evidence of discriminatory intent, the
burden of proof shifts to respondent to either 1) rebut the evidence
by proving that it is untrue; 2) establish an affirmative defense;
or 3) limit, but not avoid, liability by proving that it would have
taken the same action for legitimate non-discriminatory reasons,
i.e. business necessity. See, In re Smith/MTL Inc., Commission
Docket No. 92-003-PA-R-S (November 9, 1993). Findings 25 and 30
establish that the direct evidence was not rebutted; and there was
no affirmative defense established. The claimed business necessity
was low bar sales, however, the Commission has accepted Finding 33
that the bar sales did not justify the reduction in hours because
Cole's sales actually exceeded the level. Thus, Treehouse
discriminated against Cole because of her disability. This provides
an alternative basis for concluding that Treehouse violated H.R.S.
378-2(1)(A).
B. EVIDENCE PROBATIVE OF AGE DISCRIMINATION
Pretext may be shown by evidence of how Cole was treated in
comparison to other similarly-situated employees of a different
protected basis. See, McDonnell Douglas, 411 U.S. at 804. The
Executive Director contends that three bartenders, including Cole,
(all over 37 years) were adversely affected by the bar sales levels,
while a younger bartender (26 years) was not adversely affected
despite having a low sales level. The favored bartender was
"substantially younger" than Cole. See, O'Connor v. Consolidated
Coin Caterers Corp., --- U.S. ---, 1996 WL 14564 (1996) (favorable
treatment of a substantially younger employee is a "far more
reliable indicator of age discrimination.") The Commission finds
that the favorable treatment of the similarly-situated,
substantially younger bartender is an additional basis to conclude
that Treehouse's justification for its treatment of Cole was
pretextual.
Another way to establish pretext is to examine an employer's
general policy and practice with respect to minority employment,
including statistical evidence about the composition of the labor
force, because it may be "reflective of restrictive or exclusionary
practices." McDonnell Douglas, 411 U.S. at 805, n 19. The range of
ages of bartenders hired while Cole was employed constitute
statistical evidence probative of age discrimination. In this case,
the hiring pattern shows that Treehouse had a 3-6 ratio of younger
(under 30 years of age) bartenders and older (30 years of age and
above) bartenders up until the time a particular manager, Peter
Johnson, was terminated. Johnson had decided not to implement
Maddigan's directive to hire younger female bartenders. Finding 17.
However after Johnson's termination, those hired were mostly younger
bartenders--8 out of 12. Then after Cole filed her age
discrimination complaint, the hiring pattern changed and Treehouse
began to hire mostly older bartenders.
The Executive Director contends that hiring older bartenders
was in response to the age complaint and does not excuse Treehouse
from its earlier practice of discriminating against older
bartenders. The Commission agrees. See, Furnco, 438 U.S. at 579;
Teamsters v. United States, 431 U.S. 324, 341-42 (1977). Although
Treehouse began hiring older bartenders after the age complaint was
filed, the prior pattern of hiring younger bartenders reflected a
change in practice after Johnson left. A pattern of hiring based
upon age is probative of age discrimination and provides a basis to
infer that Treehouse had an animus against older bartenders when it
reduced Cole's hours. See, MacDissi v. Valmont Industries, Inc.,
856 F.2d at 1058 (firing of two oldest employees in nine member
department is "circumstantial evidence which tends to support a
specific claim of disparate treatment.") This constitutes
additional support for the finding of pretext.
VIII. OTHER FINDINGS AND CONCLUSIONS OF LAW
With the exception of the findings related to the workers' comp
claim and the other non-proffered reasons for the adverse actions,
the Commission hereby adopts the remaining Findings of Fact in the
Recommended Decision. The Commission concludes that it has
jurisdiction over the complaints and that Treehouse violated H.R.S.
378-2 by discriminating against Cole because of her age and
disability and by retaliating against her for filing a
discrimination complaint. As discussed above, these violations were
proven under the disparate treatment theory of discrimination by
circumstantial evidence. The age discrimination violation was also
proven by direct evidence. Finally, the Commission adopts the
Conclusion in the Recommended Decision that there was no disparate
impact discrimination.
IX. REMEDIES FOR TREEHOUSE'S DISCRIMINATORY PRACTICES
The Hearings Examiner made extensive findings about the effect
of Treehouse's actions upon Cole. Cole lost wages and medical
benefits because of the reduction in hours and termination. She
also suffered from a great deal of emotional distress and gained
much weight as a result of the discriminatory actions.
A. BACKPAY
The Commission hereby awards Cole back pay and benefits from
the time of her demotion to the closure of Treehouse less her other
earnings[9]. The Commission finds that Cole is entitled to backpay
of $1,260.00 per month for 41 months (October 1991 to March 1995
when Treehouse closed) or $51,660.00 less her earnings at Treehouse
(with the reduced hours) of $2,960.00 ($592.00 per month[10] for 5
months), and less her earnings at Valley Isle Promotions, dba "Oh
Baby", of $14,720.00 (for the period from July 1992 to March 1995)
for a net back pay amount of $33,980.00. Cole's monthly expense for
insulin was $40.00 per month for 41 months or $1,840.00. The total
amount of back pay and benefits awarded is $35,820.00.
B. COMPENSATORY DAMAGES
The Commission can award compensatory damages to victims of
discrimination. H.R.S. 368-17. An award of compensatory damages
carries out the constitutional provision supporting the exercise of
one's civil rights and against discrimination in the exercise
thereof, Haw. Const. Art. I, Sect. 5, and the public policy of the
State against discrimination in employment. H.R.S. 368-1.
The record contains ample evidence that Cole suffered from
emotional distress resulting from the discrimination in the exercise
of her civil rights. Losing her job made her anxious, depressed,
and feel humiliated. She had nightmares and sleeplessness and
gained considerable weight as a result. She was deeply concerned
about the loss of medical benefits because of her on-going medical
needs. The Commission hereby awards Cole a total of $20,000.00 for
the violation of her civil rights.
C. PUNITIVE DAMAGES
There is also direct evidence that Treehouse reduced Cole's
hours to end her medical benefits so that she would quit.
Treehouse's refusal to give her another shift despite her tearful
requests while at the same time hiring younger, less experienced,
bartenders clearly reflects a willful, wanton, and reckless
disregard of Cole's status as a disabled person. Treehouse was not
in any financial difficulty whereby it had to reduce employees'
hours so that it could not provide Cole with another shift as she
once had. There was no business necessity justification for its
callous and cavalier treatment of her. The Commission finds that
there is clear and convincing evidence that Treehouse acted
willfully, wantonly, and recklessly when it reduced her hours
because of her disability and concludes that Cole is entitled to
receive punitive damages of $10,000.00.
D. AFFIRMATIVE RELIEF
The Commission orders the following affirmative relief:
1) Treehouse is ordered to cease and desist from
discrimination in age, disability, and retaliation;
2) Treehouse will implement an appropriate non-discrimination
policy with specific instructions as to whom complaints can be made;
and
3) Treehouse will provide Cole with a neutral letter of
reference and not make any statements, verbally or in writing, to
anyone requesting references regarding her complaints against it.
DATED: Honolulu, Hawaii
AMEFIL AGBAYANI, Commissioner
WILLIAM HOSHIJO, Commissioner
FAYE KENNEDY, Commissioner
JACK LAW, Commissioner
RICHARD PORT, Commissioner
NOTICE: Pursuant to H.R.S. 91-14 and 368-16, an aggrieved
party may institute proceedings for judicial review in the circuit
court within thirty days after service of the certified copy of the
final decision and order of the agency.
--------------------------
footnotes:
1. The Commission through its Executive Director is required
to provide counsel on behalf of the complaint. H.R.S. 368-14(a).
At administrative hearings where the complainant has not intervened
as a party, the party bringing the action is the Executive Director,
on behalf of the complaint.
2. Although retaliation for filing a workers' comp claim is
prohibited by H.R.S. 378-32, such action is not prohibited under
the employment discrimination law. H.R.S. 378-1 through 6.
3. Termination of an employee because of fear of reinjury
would not be in retaliation for filing a discrimination complaint
but may constitute disability discrimination. A person with a pre-
existing injury may be disabled as a result of being "regarded as
having a mental or physical impairment which substantially limits a
major life activity." H.R.S. 378-1. A termination may be
discriminatory if it resulted from the employee's perceived
disability.
4. H.R.S. 91-10(5) provides:
"In contested cases: [e]xcept as otherwise provided by
law, the party initiating the proceeding shall have the
burden of proof, including the burden of producing
evidence as well as the burden of persuasion. The degree
or quantum of evidence shall be a preponderance of the
evidence.
(Emphasis added.) H.R.S. Chapter 626, which contains Rule 304,
Haw.R.E., constitutes the exception provided by law.
5. Treehouse's brief cites to two California cases and
contends that Hicks should be followed because the Haw.R.E. are
based upon the California Rules of Evidence. However, neither case
dealt with the applicability of California's evidentiary rules on
presumptions or the public policy in this case. Also, one of the
cited cases, Moisi v. College of Sequoias, 19 Cal.App.4th 564, 25
Cal.Rptr.2d 165 (Ct. of App., 5th Dist. 1993), was depublished by
the California Supreme Court on January 27, 1994, and cannot be
cited or relied upon by a court or any party. Rule 977, Cal. Rules
of Court.
6. In Hicks, the immediate supervisor had specifically denied
that there were any personal difficulties, however, six months after
trial, the court found that personal animosity actually motivated
the termination. There was no "opportunity, much less a full and
fair one, [for Hicks] to demonstrate that the . . . personal
animosity of his immediate supervisor, was unworthy of credence."
113 S.Ct. at 2766 (Souter, J., dissenting).
7. Treehouse maintains that its actions were taken for its
proffered reasons despite the pretext finding and continues to deny
that workers' comp played any part in the decision. The Executive
Director contends that the record shows that workers' comp could not
have played a part because the earliest Treehouse could have found
out about it was in January 1992, several months after the reduction
in hours, and Arthur Maddigan, Treehouse's president, specifically
denied any knowledge of it until after Cole had been terminated.
8. Prior to Hicks, several circuit courts including the Ninth
Circuit found discrimination upon proof of pretext. See, e.g.,
Williams v. Edward Apffels Coffee Co., 792 F.2d 1482, 1486 (9th Cir.
1986); MacDissi v. Valmont Industries, 856 F.2d 1054 (8th Cir.
1988); Tye v. Board of Education, 811 F.2d 315 (6th Cir.), cert.
denied 484 U.S. 924 (1987); Thornburg v. Columbus & G. R.R., 760
F.2d 633 (5th Cir. 1985); Chipollini v. Spencer Gifts, Inc., 814
F.2d 893 (3rd Cir) (en banc), cert. dismissed 483 U.S. 1052 (1987);
Siegel v. Alpha Wire Corp., 894 F.2d 50 (3rd Cir); cert. denied 110
S.Ct. 2588 (1990).
9. No deduction is being made for Cole's earnings at Apparels
of Pauline because she was already working there and had no increase
in hours after her Treehouse hours were reduced.
10. In Table II of the Executive Director's Written Exceptions
Cole's average weekly earnings is stated as $168.00 based upon
$78.00 in wages and $70.00 in tips. Based upon these amounts,
however, her average weekly earnings was $148.00, and her average
monthly earnings was $592.00.
