Colldra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII



LINDA C. TSEU, Executive ) Docket No. 95-001-E-R-S
Director, on behalf of the )
complaint filed by ) HEARINGS EXAMINER'S
SUSAN C. COLLINS, ) FINDINGS OF FACT,
) CONCLUSIONS OF LAW
v. ) AND RECOMMENDED
) ORDER; APPENDIX A;
CEDERQUIST, INC.; ANDRES ) ATTACHMENT 1.
CORPUZ; and TERESITO )
CABRADILLA, )
)
Respondents. )
______________________________)

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 Respondents Cederquist,
Inc. (hereinafter "Cederquist") and Andres Corpuz (hereinafter
"Corpuz") violated H.R.S.  378-2 and H.A.R.  12-46-109 by:
1) sexually harassing Complainant Susan Collins; 2) retaliating
against Complainant after she complained about the harassment; and
3) constructively discharging Complainant.
Respondents deny that the alleged sexual harassment and
retaliation occurred and contend that Complainant voluntarily quit
her job because she did not want to work with or be supervised by
Filipinos.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, the Hearings Examiner hereby renders the following
findings of fact, conclusions of law and recommended order.


II. FINDINGS OF FACT[1]
1. Complainant Susan Collins is a Caucasian woman. In 1976
she moved to Maui, Hawaii from Arizona. In 1987 she joined Local
745 of the United Brotherhood of Carpenters and Joiners of America
(hereinafter "union") and became an apprentice carpenter. (Tr. 9;
Ex. 5) [2]
2. Apprentice carpenters are carpenters in training and must
work under the supervision of journeymen carpenters. Apprentice
carpenters are expected to follow instructions from the journeymen
and foremen they are assigned to. Apprentices may ask questions or
make suggestions, but can be fired for challenging or refusing to
follow instructions. Apprentices and all other carpenters are
generally expected not to socialize or "talk story" while working.
In order to advance to journeymen status, an apprentice must
complete 8,000 work hours in six different categories of carpentry
work. (Tr. 599-600, 1032-1033, 1036; Ex. 27 p. 3-4)
3. From 1987 to fall 1990, Complainant worked for Pacific
Construction Co. at the Embassy Suites Hotel and the Kahului
airport. She built and dismantled concrete forms and did layout
work, which involved heavy physical labor. Complainant had
difficulties with the physical demands of the work and was unsure
that she could continue to handle it. However, she liked the high
pay and good benefits. (Tr. 10-13, 77, 90, 905-906)
4. Respondent Andres Corpuz is a Filipino man. In 1969 he
immigrated to the United States from the Philippines. In 1971 he
joined the union. Around 1976 he became a journeyman carpenter. In
1980 he obtained a contractor's license and established his own
contracting company, which builds single family homes. Corpuz works
both as a journeyman carpenter on union jobs as well as a contractor
with his own business (Tr, 360-361; Ex. 13 p. 6, 9)
5. During her last month at the airport job, Complainant was
assigned to work with Corpuz. At that time, Corpuz was a journeyman
carpenter. Corpuz thought Complainant was a lazy worker. He was
critical of Complainant's work performance and often complained
about her work to the foreman. This was because at times,
Complainant would not follow Corpuz's instructions and would not do
heavy lifting work. Complainant also had a difficult time
understanding Corpuz's and some other Filipino carpenters' English
accents and thought they were "idiots". She once remarked to
another female Caucasian carpenter, "How can you learn from somebody
like that? . . . he obviously doesn't even speak English well".
(Tr. 13-15, 19, 305-311, 770, 904-905; Ex. 13 p. 21-26)
6. During the month Complainant worked with Corpuz, he would
ask her out to drink beer and whiskey and to go to chicken fights.
Complainant refused these invitations. Although Corpuz's
invitations upset Complainant, she did not complain to anyone
because she knew that the airport job and her assignment to Corpuz
would soon end. (Tr. 14-15)
7. At the airport job, Corpuz informally supervised at least
one other female Caucasian apprentice. This carpenter obediently
followed his instructions and physically performed what Corpuz felt
was her fair share of work. He did not similarly ask this female
carpenter to go drinking or to chicken fights and had a good working
relationship with her. In his contracting business, Corpuz employs
a female carpenter as a roofer. (Tr. 897-898; Ex. 13 p. 23-25)
8. On September 3, 1986 Respondent Cederquist was
incorporated to do business in the State of Hawaii. The corporation
manufactured finish materials such as panelings, moldings, door
frames and doors at its plant in California. It also shipped the
materials to various construction projects and installed them. In
spring 1990 Cederquist was subcontracted by Pacific Construction Co.
to supply and install finish materials at the Grand Hyatt Wailea and
Stouffer Wailea Beach Resort hotels. (Ex. 13 p. 10, Ex. 34)
9. The finish work at the Grand Hyatt Wailea involved the
installation of paneling, moldings, door frames and doors in the
ballrooms, meeting rooms, hallways, public bathrooms and various
other parts of the hotel. The finish materials cost several hundred
thousand dollars and apprentice carpenters were usually not allowed
to cut or nail them. Instead, apprentices were assigned to observe
and help the journeymen by doing menial tasks such as fetching
materials and tools, helping to measure materials, cutting and
putting up rough wood backings for the paneling, unloading
containers, putting putty in nail holes, cleaning up work areas, and
putting tools away. (Tr. 19, 1030-1032)
10. Cederquist stationed its job superintendent, Don Ternberg,
at the Grand Hyatt Wailea and Stouffer Wailea Beach Resort.
Ternberg was responsible for hiring the foremen and carpenters from
the union, giving instructions to the foremen, and ensuring that the
subcontract was completed on time. (Tr. 312, 959)
11. Ternberg hired Corpuz as the working foreman of both jobs.
Corpuz was responsible for the day to day supervision of all the
carpenters, including Complainant. This included assigning
carpenters to different jobs, instructing them on how to do the
jobs, and checking their completed work throughout the construction
site. (Tr. 101-102, 312-315, 325; Ex. 13 p. 10)
12. Some time around late October, 1990 Herman Nascimento, a
business agent and the chairperson of the apprenticeship program of
the union, asked Corpuz if he would hire and train Complainant to do
finish work. This was because Complainant had no experience doing
finish work and needed to complete a certain amount of hours in
finish work in order to advance to journeyman status. Corpuz spoke
to Ternberg, who stated he would agree to hire Complainant if Corpuz
was willing to have her on the crew. Corpuz and Ternberg told
Nascimento they were willing to hire and train Complainant. (Tr.
250-252, 317-319, 595-597; Ex. 13 p. 28-31)
13. On November 5, 1990 Complainant was sent by the union to
work for Respondent Cederquist as an apprentice carpenter. At that
time the crew consisted of 8 people: 4 Caucasian male carpenters,
3 Filipino male carpenters (including Corpuz), and Complainant, who
was the only female carpenter. (Tr. 17, 325; Ex. R-A)
14. During Complainant's employment at Cederquist, the
corporation had one or more employees. (Ex. R-A)
15. During Complainant's employment at Cederquist, the
corporation did not have an expressed policy against sexual
harassment. It also did not conduct any training among its
supervisors or employees on sexual harassment. Corpuz did not know
of such concept until after February 26, 1991. The corporation had
an informal grievance procedure in which employees were encouraged
to discuss problems with their supervisors or with management. (Tr.
245-246, 380, 400-401; Ex. 3, Ex. 13 p. 13)
16. At Cederquist, Corpuz showed favoritism to certain
apprentices and journeymen who were his personal friends by getting
them hired and/or assigning them to easier or more interesting jobs.
(Tr. 771-772, 1060, 1096-1098)
17. Complainant was eager to learn finish work. She thought
finish work would be easier than layout and form building because it
was indoors and less physically demanding. Complainant wanted to
measure, saw and nail up the finish materials. She didn't realize
she lacked the experience to do this work and became frustrated and
angry at Corpuz when he assigned her to do menial tasks. She also
became frustrated and angry with Corpuz for giving the easier menial
jobs to the apprentices he favored. (Tr. 16, 1030-1034, 1052-1054,
1095, 1097-1098)
18. On November 5, 1990 Cederquist also hired Teresito
Cabradilla[3] as a journeyman carpenter. Cabradilla is a Filipino
man. In 1959 he immigrated from the Philippines to Hawaii and
became a journeyman carpenter in 1976. He is not related to Corpuz.
When the crew got larger, Cabradilla was promoted to working
foreman. Cabradilla was a tough and strict foreman. He
occasionally exploded and yelled at the carpenters (both Filipino
and Caucasian) when they made mistakes. Once Cabradilla lost his
temper, grabbed a saw from a male Caucasian carpenter and yelled
something like, "You damn stupid haole, that's not how you do it!"
(Tr. 367, 395, 413, 441, 1091-1093; Ex. 14 p. 10, 15; Ex. 51 p. 7;
Ex. R-A)
19. During Complainant's employment with Cederquist, Corpuz
subjected Complainant to the following offensive and unwanted sexual
conduct:
a) on Complainant's first day of work, Corpuz asked
Complainant to go drinking and to chicken fights with him.
Complainant refused and told him to stop asking her;
b) Corpuz then slapped Complainant on the butt as he left the
meeting room she was working in;
c) sometime between November 28 and December 14, 1990 Corpuz
offered Complainant $100 if she would say "I love you" in
Ilocano;
d) throughout Complainant's employment at Cederquist, Corpuz
continued to bother Complainant by constantly asking her
to go drinking and to chicken fights with him.
(Tr. 28, 30, 39, 140-141, 143-144, 147, 458-459, 1034-1035; Ex. 9;
Ex. 51 p. 19, 21)
20. Corpuz's invitations annoyed Complainant. She felt
miffed and insulted by them and tried to ignore them so she could
keep working. Complainant became upset and embarrassed when Corpuz
slapped her on the butt and offered her $100 to say "I love you" in
Ilocano. (Tr. 30, 555, 1035, 1059; Ex. 51 p. 21)
21. During Complainant's employment with Cederquist, the non-
supervisory male carpenters employed by Cederquist subjected
Complainant to the following offensive and unwanted sexual conduct:
a) from November 5 to December 14, 1990 most of the Caucasian
and Filipino male carpenters used profanities such as
"fuck", "fucking", "shit", "damn", "bitch" and "screwed"
when they spoke to Complainant and to each other. These
profanities were not directed at Complainant, but were
freely used when speaking. The male carpenters also often
talked about sex and told jokes about sex among
themselves, but not with Complainant;
b) some time between November 30 and December 14, 1990
Cabradilla once stated to Complainant, "you should stay
home and make babies" while they and other crew members
were putting tools away. A few times when the crew was
getting ready to go home, Cabradilla also announced to
everyone, "time to go home and make babies".
(Tr. 54, 121-122, 463-465, 489, 549-550, 801-808, 812-813, 1037-
1038, 1087-1088, 1139-1140; Ex. 51 p. 5-6)
22. The above conduct by the crew offended Complainant and
made her feel disgusted, terrible and unwanted at the job site.
(Tr. 26, 456)
23. Throughout Complainant's employment at Cederquist, Corpuz
and Complainant had also conflicts unrelated to her sex. Corpuz
continued to feel that Complainant was a lazy, unsafe and
insubordinate worker. A few times Complainant was late for work,
took long breaks and left work early without helping the crew put
cords and power tools away. Corpuz warned her to "be more careful"
and to "watch [her] time". Complainant also talked a lot while
working. On November 26, 1990 Complainant walked on the edge of a
scaffold and on November 28, 1990 Complainant unloaded a container
by pulling out materials that were underneath some paneling instead
of unloading the paneling first. On both occasions, Corpuz told her
to "watch out, you might get killed".
Complainant felt that Corpuz was an incompetent and dictatorial
foreman. She believed that he read plans and measured incorrectly,
instructed her and other carpenters to do work in the wrong sequence
and was not open to her questions, ideas or suggestions.
Complainant openly complained about not getting challenging or
educational jobs and Corpuz's favoritism to other carpenters. She
often refused to do her assignments by saying "No", walking away,
or asking, "Why can't I do this instead?" Complainant also
challenged Corpuz's instructions or criticisms as being incorrect.
She would sometimes talk back and say, "You don't know what you're
talking about", "Shut your mouth", or "I don't want to listen to any
shit coming from your mouth!" She also continued to have problems
understanding Corpuz's accent and once remarked, "If you used
English, I wouldn't have made a mistake".
Complainant's insubordination angered Corpuz. He felt
apprentices should not question the authority or instructions of
foremen or journeymen. When Complainant talked back or didn't
follow instructions, Corpuz would warn Complainant, "watch out" or
"be careful of your mouth, I can get you in trouble" and indicated
that he would have her expelled from the union. Complainant would
become upset and sometimes cry after these confrontations. (Tr. 19-
21, 64, 107, 148-150, 153-154, 335-337, 352-359, 363-364, 391-392,
466-467, 864-865, 1032-1034, 1053-1054, 1095, 1116, 1121-1122; Ex.
51 p. 9, 13)
24. Complainant also held some stereotypes and mis-assumptions
about Corpuz and some of the Filipino carpenters. From overhearing
some work site conversations and reading some newspaper articles
about chicken fighters, she mistakenly thought that Corpuz,
Cabradilla and some of the chicken fighters on the crew were
related, belonged to a Filipino syndicate or "clan system" and that
they had "lots of guns". She also thought that Filipinos in general
"get even" with people who "cross" them by beating them up or
killing them. (Tr. 43-44, 63-65, 232-234, 326-329, 562; Ex. 17;
Ex. 51 p. 22)
25. On November 26, 1990 Complainant attempted to talk to
Ternberg about the crew's use of profanity and Corpuz's behavior.
Corpuz called Ternberg away to discuss something else. Complainant
became upset and left work. (Tr. 43; Ex. 10)
26. On November 28, 1990 Complainant returned to work. She
complained to Ternberg about Corpuz criticizing and berating her and
the crew's use of profanity. Ternberg told Complainant that such
speech was common at construction sites and that she should get used
to it. He felt her complaint was "minute" and "far out". (Tr. 231-
232, 989-990; Ex. 3)
27. Complainant became upset at Ternberg's response and went
to the union later that day. She spoke to Nascimento and told him
that some of the men were "bugging her" and giving her a bad time
about her work, that she was given menial, hard and dirty jobs, that
there was a lot of swearing at the work site, and that she was
having a hard time communicating with some of the Filipino
carpenters. Nascimento explained to Complainant that a lot of
swearing occurs on construction sites, but that he would speak to
Ternberg about it. (Tr. 44, 547-550, 600-602; Ex. 51 p. 19)
28. Nascimento spoke to Ternberg about the crew's use of
profanity and suggested that Ternberg assign Complainant simple
tasks, since she was not experienced in finish work. (Tr. 548-549;
Ex. 51 p. 19)
29. By November 28, 1990 the crew increased to 12 carpenters.
There were 5 Caucasian males, 6 Filipino males (including Corpuz)
and Complainant. By December 7, 1990 and until the end of
Complainant's employment at Cederquist, the crew at times increased
to 14 carpenters, consisting of: 6 Caucasian males, 7 Filipino males
and Complainant. (Ex. R-A)
30. Some time after November 28, 1990 Corpuz went to
Nascimento and complained about Complainant's attitude. Corpuz
stated that Complainant was a "wise ass", wouldn't follow or listen
to his instructions and made him lose face in front of the crew.
Nascimento then spoke to Complainant about following instructions
and not questioning her foreman and journeymen. (Tr. 340-341, 597-
600; Ex. 51 p. 21)
31. On December 14, 1990 Complainant complained to Nascimento
about the continued use of profanity at the work site, and Corpuz
slapping her on the butt and asking her to say "I love you" in
Ilocano. Complainant was upset and embarrassed about the incidents
with Corpuz. Complainant also stated that Corpuz and some Filipino
carpenters continued to be "negative" towards her - they wouldn't
listen to her suggestions and wouldn't teach her how to do things.
Complainant stated that she enjoyed working with Frank "Sam" Piburn,
a Caucasian journeyman who was a patient teacher and listened to her
suggestions. (Tr. 45, 551-555, 559-560, 609-611, 1053-1054; Ex. 51
p. 19, 21)
32. Nascimento felt that the butt slapping and "I love you"
complaints were very serious. He advised Complainant to keep a log
of any improper conduct. Later, Nascimento spoke to Karen Kamisado,
the Equal Opportunity Officer (EEO) of Pacific Construction Company
about Complainant's allegations. Kamisado spoke to Ternberg about
the crew's use of profanity at the work site and Complainant's
allegations. (Tr. 202, 607, 611-612, 617-618, 962, 988-989, 1073)
33. Nascimento went to the job site and spoke to Ternberg and
Corpuz about Complainant's complaints, the seriousness of such
complaints, and how women should be treated at the work site.
Corpuz denied slapping Complainant on the butt and offering her $100
to say "I love you" in Ilocano. Because Complainant was having a
difficult time working with and understanding certain Filipino
journeymen, Nascimento suggested that she be assigned to work with
Piburn and other Caucasian journeymen. Ternberg concurred. (Tr.
551-552, 555-556, 611-612, 1028; Ex. 51 p. 19-20)
34. Ternberg spoke Complainant about her complaints, asked her
"what she wanted", and if she wanted Corpuz to be fired.
Complainant stated that she didn't like working with Corpuz and
certain other people, that she wanted the crew to stop using
profanity, and that she didn't want Corpuz fired. Ternberg then
spoke with the male carpenters individually and told them to stop
using profanity at the work site and to treat co-workers "as if you
were at home". Nascimento also spoke to several male carpenters as
a group and individually, and told them to watch their language and
conduct themselves as working men, not like "kids out of high
school". Ternberg and Nascimento also told Piburn, Jacobson and
some of the Caucasian carpenters to watch over Complainant and to
keep her away from Corpuz and the Filipino carpenters she was having
conflicts with. (Tr. 556-557, 612-613, 991, 995-997; Ex. 3; Ex.
51 p. 5, 8; Ex. R-E p. 29, 34)
35. After December 14, 1995 the male carpenters for the most
part stopped using profanity at the work site. Ternberg assigned
Complainant to work primarily with Piburn and other Caucasian
journeymen. Nascimento checked on Complainant weekly. During this
period of time, she informed him that she had no complaints and that
she was enjoying the work. (Tr. 44, 47, 121-122, 603-604, 996-997,
1028-1029, 1050, 1120; Ex. 3; Ex. 51 p. 19)
36. Complainant, however, began to feel that Corpuz was
retaliating against her for complaining to the union. She
erroneously believed that he told the crew to watch her so she could
be fired. She also mistakenly thought that Corpuz was trying to
isolate her from the rest of the crew. When Corpuz called her
journeymen on the radio, she thought he was scrutinizing her work so
that he could fire her. Complainant also continued to have work
conflicts with Corpuz. During these arguments, when Corpuz told her
to "watch out" she thought he might be physically threatening her.
The work conflicts and perceived retaliation caused Complainant to
feel pressured, stressed and made her cry. She started to get
headaches and constant upset stomach. She became anxious and upset
about returning to work on Mondays. (Tr. 39-40, 45, 48, 59, 62-64,
73, 194-195, 466-467; Ex. 17)
37. In early February 1991 Cabradilla became Complainant's
foreman. He continued to assign Complainant to Caucasian
journeymen. Cabradilla felt that Complainant was an inconsiderate,
lazy, inept and insubordinate worker. Prior to becoming foreman,
Cabradilla saw Complainant put her hands in the crew's drinking
water jug to retrieve a soda and then refuse to change the drinking
water. After Cabradilla became her foreman, Complainant was late
for work a few times and couldn't lift some of the heavy moldings
and saws. She once walked away after Cabradilla told her to press
more putty into some nail holes. (Tr. 429-432, 462-463, 1093; Ex.
14 p. 32, 36, 40-42, 44-45, 47, 57-58, 69-70)
38. On February 25, 1991 some of the male carpenters told
Cabradilla that Complainant left work early without helping the crew
put tools away. (Tr. 418, 786, 954-956, 1166-1168; Ex. 14 p. 45-46)
39. On February 26, 1991 Complainant went to work in the
ballroom of the Grand Hyatt Wailea. Cabradilla was already in the
ballroom. Cabradilla approached Complainant and accused her of
leaving work early the day before and not helping the crew put tools
away. Complainant denied leaving early and told Cabradilla she had
walked out with three other carpenters. Cabradilla told Complainant
she couldn't have walked out with those three carpenters because two
of them complained that she left early. Cabradilla yelled at
Complainant stating, "You're no good, nobody wants to work with
you!" Complainant became upset, scared and said something like,
"I've had enough of this - this isn't fair". She left the ballroom.
She ran in to Corpuz in the hallway. Corpuz asked Complainant if
she had left early the day before. Complainant yelled at Corpuz and
said something like, "I'm going to go to the union - somebody is
going to pay for this". She then walked out of the building,
slipped on a rock in the parking lot and severely sprained her
ankle. She got into her car and drove to the union hall. (Tr. 56-
58, 219, 423-426, 641, 1081, 1124-1125; Ex. 14 p. 49-50, 53-56)
40. At the union hall, Complainant spoke to Nascimento. She
told Nascimento that Cabradilla picked on her for being late, became
enraged, and that she wasn't going to take any more verbal abuse.
She was angry and fed up. (Tr. 219-220, 560-561; Ex. 9)
41. Nascimento felt that the situation "had gone far enough".
He suggested that Complainant file a grievance with the union and
Pacific Construction EEO officer. Complainant refused because she
heard that Filipinos get "even with people that try to cross them"
and thought that Corpuz and Cabradilla would retaliate by physically
harming her. Despite Complainant's refusal, Nascimento reported the
February 26, 1991 incident to Ternberg and the Pacific Construction
EEO officer. Nascimento also informed Complainant that after her
ankle healed, he would place her in another job with a different
crew at a different work site. (Tr. 561-562, 606-607; Ex. 51 p. 20)
42. On February 27, 1991 the Pacific Construction EEO officer
phoned Complainant and spoke to her about her complaints. The EEO
officer offered to act as a mediator between Complainant and
Cederquist, Ternberg and Corpuz to resolve the complaints.
Complainant refused because she believed that Corpuz, Cabradilla or
members of their "clan" or "syndicate" would physically harm her,
and because she was upset about her ankle injury. (Ex. 9; Ex. 12
p. 23)
43. During the few months after February 26, 1991 Complainant
continued to believe that Corpuz, Cabradilla or their "syndicate"
would physically harm her in retaliation for complaining about their
conduct. She feared for her life and thought she might become a
"cane field statistic". However, Complainant's fears were
unfounded. Corpuz and Cabradilla did not belong to a Filipino
syndicate and they did not take any actions to threaten or
physically harm Complainant. (Tr. 63-64, 441)
44. The above fears caused Complainant's headaches to get
worse and she began to have nightmares. She also began to have
excessive perspiration, tight jaws, restless sleep, palpitations,
pressure in her chest, shortness of breath, alopecia and crying
spells. She lost her appetite and felt mentally exhausted. She
became afraid to go to public places and stopped going shopping, to
restaurants and to the beach. She also became mildly depressed
about her ankle injury. (Tr. 63; Exs. 17, 19)
45. On February 26, 1991 Complainant filed a workers'
compensation claim for her sprained ankle. On May 29, 1991 she
filed a workers' compensation claim for job related stress. (Ex. A)
46. On March 18, 1991 Dr. Gary Iannitello, the physician
treating Complainant's ankle, referred her to Dr. Michael Mathews,
a psychiatrist, to treat emotional stress concerns that Complainant
expressed to him. (Ex. 17)
47. On May 17, 1991 Dr. Iannitello released Complainant to
resume light duty work. On May 31, 1991 Dr. Iannitello released
Complainant to resume regular duty work. (Ex. A)
48. On June 4, 1991 Complainant went to see Dr. Mathews. She
reported that some Filipino workers had discriminated against her
and that she was afraid to go back to work. She also reported the
post traumatic stress symptoms described in Finding of Fact number
44 above, and feelings of depression about her ankle injury. Dr.
Mathews diagnosed Complainant as having adjustment disorder with
mixed mood, but opined that most of Complainant's symptoms had
cleared. He did not feel that Complainant needed ongoing
psychiatric care. On October 7, 1991 Complainant again saw Dr.
Mathews, who documented that Complainant still had some anxiety
about approaching crowded areas and a "fear of the union", but was
back to normal in all other areas. (Exs. 17, 19)
49. On June 25, 1991 Complainant filed a complaint with this
Commission.
50. Around October or November 1991 Complainant began work as
a massage therapist (one of her prior occupations). (Tr. 10; Ex.
17)
51. Some time in 1992 Respondent Cederquist ceased doing
business in the state of Hawaii. (Ex. 34)
52. In August 1992 Complainant was evaluated by Dr. George
Bussey, a psychiatrist hired by Cederquist's workers' compensation
insurer to make an independent medical evaluation of Complainant's
stress claim. Dr. Bussey interviewed Complainant for two hours
about her psychiatric history and experiences at Cederquist. He
also conducted a mental status examination and later reviewed her
medical files. (Tr. 161-162; Ex. 17)
53. Based on information obtained from the interview, mental
status examination and medical files, Dr. Bussey diagnosed
Complainant as having suffered post traumatic stress disorder
stemming from the incident with Cabradilla which occurred on
February 26, 1991 and the symptoms which developed thereafter.
Alternatively, Dr. Bussey diagnosed Complainant as having
suffered adjustment disorder with post traumatic type symptoms based
on the occurrence of four events and the resulting symptoms caused
by all four events: 1) Corpuz and the crew's sexual harassment of
Complainant; 2) Complainant's work conflicts with Corpuz; 3)
Complainant's misperception that Corpuz and Cabradilla were
retaliating against her; and 4) Complainant's fears that Corpuz
and Cabradilla would physically harm her, caused by her stereotypes
that Corpuz, Cabradilla and the chicken fighters belonged to a "clan
system" or "syndicate" with "lots of guns", and that Filipinos in
general "get even" with people who "cross them". Dr. Bussey
also noted that most of Complainant's symptoms subsided. He
believed that Complainant could have returned to carpentry work with
a different crew if she received active psychiatric intervention.
He concluded that Complainant had a 5% impairment in social
functioning, concentration and adaptation. (Tr. 172-178; Ex. 17)
54. On May 19, 1993 Complainant and Cederquist's insurer
settled her workers' compensation claims. In the settlement
agreement, the parties agreed that Complainant suffered 5% permanent
disability to whole woman because of stress and 5% permanent partial
disability of the right foot. Complainant was awarded $10,650.20
for her both injuries and was not required to reimburse $5,179.43 in
overpayment of temporary total disability for the period between May
18 and August 13, 1991. (Ex. A)
55. In 1994 Respondent Cederquist ceased doing business,
vacated its plant and offices and auctioned off its assets. (Exs.
34, 49)

III. CONCLUSIONS OF LAW[4]
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.[5]

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.
1. Respondent Cederquist
During Complainant's employment at Cederquist, Respondent
Cederquist was a corporation with one or more employees. I
therefore conclude that Cederquist is an employer under H.R.S.
 378-l and is subject to the provisions of H.R.S. Chapter 378.
2. Respondent Corpuz
Respondent Corpuz, the working foreman and overall supervisor
of all the carpenters employed by Cederquist, served in a
supervisory position over Complainant Collins. He approved her
hiring and exercised control over her conditions of employment. He
is therefore an agent of Respondent Cederquist and an employer under
H.R.S.  378-1. In Re Shaw / Sam Teague Ltd., Docket No. 94-001-E-P
(March 3, 1995) (hereafter referred to as Shaw); In Re Santos /
Hawaiian Flowers Exports, Inc., Docket No. 92-001-E-SH (January 25,
1993) (hereinafter referred to as Santos); Kauffman v. Allied
Signal, Inc., 970 F.2d 178, 59 EPD 41,642 at 71,691 (6th Cir.
1992).

B. Hostile Work Environment Sexual Harassment
H.R.S.  378-2(1)(A) makes it an unlawful discriminatory
practice for any employer to discriminate against an individual in
the terms, conditions or privileges of employment because of sex.
Hostile work environment sexual harassment is a violation of the
above statute. Santos, supra; H.A.R.  12-46-109 [6]; see also
Meritor Savings Bank, FSB v. Vinson, 477 US 57, 91 L.Ed.2d 49, 106
S.Ct 2399, 40 EPD 36,159 at 42,577 (1986); Harris v. Forklift
Systems Inc., 114 S. Ct. 367, 126 L.Ed. 2d 295, 62 EPD 42,623 at
77,397 (1993).
H.A.R. 12-46-109 defines hostile work environment sexual
harassment as
. . . unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct or visual
forms of harassment of a sexual nature. . . when. . . that
conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or
creating an intimidating, hostile or offensive working
environment.
The Executive Director must prove by the preponderance of the
evidence that:
(1) The complainant was subjected to sexual advances, requests for
sexual favors or other visual, verbal or physical conduct of a
sexual nature. Santos, supra; Ellison v. Brady, 924 F.2d 872,
55 EPD 40,520 at 65,624 (9th Cir. 1991).
(2) The conduct was unwelcome in the sense that the complainant did
not solicit or incite it, and in the sense that the complainant
regarded the conduct as intimidating, hostile or offensive.
Santos, supra; Ellison, supra; Harris, supra.
(3) The conduct was sufficiently severe or pervasive to alter the
conditions of employment, such as having the purpose or effect
of unreasonably interfering with an individual's work
performance or by creating an intimidating, hostile or
offensive working environment. H.A.R. 12-46-109(a)(3); Santos;
supra; Ellison, supra. The perspective to be used in
evaluating the severity or pervasiveness of the harassment is
that of the victim. Santos, supra; Ellison, supra, at 878-879.
Because the complainant in the present case is a woman, this
objective standard is met if a reasonable woman would consider
such conduct sufficiently severe or pervasive to unreasonably
interfere with work performance or create an intimidating,
hostile or offensive environment.
The establishment of the above prima facie case of hostile work
environment sexual harassment constitutes direct evidence of intent
to discriminate. Santos, supra; Katz v. Dole, 709 F.2d 251, 255,
32 EPD 33,639 at 30,002 (4th Cir. 1983). Thus, once a complainant
makes out the above prima facie case of hostile environment sexual
harassment, the burden of proof shifts to the employer to rebut such
showing by: 1) proving that such conduct did not take place; 2)
showing that the conduct was not unwelcome; 3) showing that such
conduct was trivial or isolated. Santos, supra; Katz v. Dole,
supra.


1. Whether the Sexual Conduct Occurred
The Executive Director alleges that Respondent Corpuz subjected
Complainant to the following acts of sexual conduct:
a) on November 5, 1990 Respondent Corpuz asked Complainant
to go drinking and to chicken fights; after she refused
these invitations he slapped her on the butt;

b) in late November 1990 after giving Complainant a ride back
to her car, on two occasions Respondent Corpuz stated,
"suppose to be that I kiss Susan good-bye";

c) on November 28, 1990 Respondent counted out eight $100
bills in front of Complainant and offered them to her if
she said "I love you" in Ilocano;

d) some time between November 28 and December 14, 1990 Corpuz
offered Complainant $100 if she would say "I love you" in
Ilocano;

e) from November 5, 1990 through February 1991 Corpuz asked
Complainant to go drinking or to chicken fights with him
almost every other day despite Complainant's continuous
refusal.

The Executive Director also alleges that Complainant's co-

workers subjected her to the following acts of sexual conduct:

i) on November 28, 1990 three members of the crew grabbed
their crotch areas in front of Complainant and Corpuz;
Corpuz laughed and failed to take any corrective action;

ii) between November 28 and December 14, 1990 some members of
the crew continued to grab their crotch areas and whisper
"pussy" when Complainant walked by them;

iii) between November 5 and December 14, 1990 most of the crew
used profanity in Complainant's presence;

iv) some time between November 30 and December 14, 1990
Cabradilla told Complainant she should be "home making
babies" and a few times announced it was "time to go home
to make babies" when the crew was putting tools away.
Respondents contend that Complainant fabricated all of the
alleged incidents. Specifically, they argue that:
1) Complainant's daily log, which Nascimento advised her to keep, is
written out of order (see, Ex. 9); 2) Complainant is inconsistent
in her testimony regarding the eight - $100 bills/ "I love you"
incident; 3) Respondent Corpuz has asthma, doesn't drink liquor
and had no reason to ask Complainant to go drinking; 4) except for
Jacobson, all other carpenters testified that they did not see or
hear the alleged sexual conduct; and 5) Corpuz's log indicates
that Complainant was not working in the same room as the men she
alleges grabbed their crotches.
I agree and conclude that Exhibit 9 does not contain entries
made at or about the time the alleged events occurred. Nascimento
testified that he told Complainant to keep a log during their second
meeting on December 14, 1990. (Tr. 607) Complainant testified she
didn't start keeping a log until after Nascimento advised her to.
(Tr. 202) Piburn confirmed that Complainant told him Nascimento
suggested she keep a log and saw her write in a log. (Tr. 1073)
However, the log contains entries for events which occurred prior to
December 14, 1990, the date Nascimento told Complainant to start her
log. (Ex. 9) In addition, Complainant incredulously testified that
in April 1991 she copied her original log into Exhibit 9 and
recently threw the original away because it was sloppy. (Tr. 200)
She also could not explain why some entries were out of sequence or
why certain entries were heavily edited. (Tr. 200-202) I
therefore find that Exhibit 9 was made some time prior to April 25,
1991 and is a reconstruction of the events Complainant alleges
occurred.
However, I find parts of Complainant's testimony regarding
Corpuz's and the crew's conduct credible because some of it was
consistent, she did complain about certain conduct to others, and
portions were corroborated by other witnesses. Piburn testified
that Complainant complained to him about Corpuz asking her out and
offering her $100. (Tr. 1035; Ex. 51 p. 15) Complainant testified
that Corpuz asked her if she drank beer or whisky, and Corpuz
testified that he used to drink these same two beverages. (Tr. 39,
701) While Respondent Corpuz may not be able to drink liquor, I
find that he constantly asked Complainant to go drink beer or
whisky, not for the purpose of actually going out or drinking liquor
with her, but to annoy her. Nascimento confirmed that when
Complainant first met with him on November 28, 1990, Complainant did
complain about some one "bugging" her. (Tr. 547) Roger Jacobson,
another Caucasian journeyman, heard Corpuz offer Complainant $100 to
say "I love you" in Ilocano. (Tr. 458-459) [7] The evidence also
shows that on December 14, 1990 Complainant also complained to
Nascimento about Corpuz slapping her on the butt and asking her to
say "I love you" in Ilocano. (Tr. 553-555, 558-560; Ex. 51 p. 19,
21) For these reasons I conclude that Corpuz did ask Complainant to
go drinking and out to chicken fights, slapped her on the butt, and
once offered her $100 to say "I love you" in Ilocano.
Ternberg, Jacobson, Piburn, Nascimento, Dionecio Cordero (a
Filipino apprentice) and Jim Riley (another Caucasian journeyman)
testified that the crew freely used profanity and talked about sex
at the work site. (Tr. 549-550, 801-808, 1037-1038, 1087-1088,
1139-1140) Ternberg and Nascimento testified that Complainant
complained about the profanity, and that they spoke to the crew
about it. (Tr. 549, 601-602, 989-990; Ex. 3) Jacobson confirmed
that he heard Cabradilla state "time to go home and make babies"
when the crew was putting their tools away. (Ex. 51 p. 5-6) I
therefore conclude that alleged profanity and comments by Cabradilla
occurred.
The preponderance of the evidence, however, does not show that
Corpuz stated that he was "suppose to kiss [Complainant] good-bye"
when he gave her a ride in his truck. Piburn and Rick Kinunen (a
Caucasian journeyman), who Complainant testified were sitting with
her in the truck during these incidents, did not hear such
statements. (Tr. 870-871, 1086) In two interviews with a
Commission investigator, Complainant only states that Corpuz
insisted she sit in the cab of his truck instead of riding in the
back because it was "packed". There is no mention of any "kissing"
comments. (Ex. R-E p. 29, 41) In addition, Complainant did not
mention or complain about these incidents to Nascimento or Dr.
Bussey. (Tr. 617; Ex. 17; Ex. 51 p. 21)
The weight of the evidence also does not show that Corpuz
counted out eight $100 bills and asked Complainant to say "I love
you" in Ilocano on November 28, 1990. Kinunen and Andy Andaya, the
two carpenters who were unloading the container with Complainant
denied seeing or hearing such conduct. (Tr. 818-819, 823, 864-866)
Complainant's testimony regarding this incident was also
inconsistent. At the hearing, Complainant first testified that she
saw a woman walk on to the work site and give $800 to Corpuz. (Tr.
29). Later, Complainant stated that a male carpenter at the job
site gave the money to Corpuz. (Tr. 207-208) In her February 15,
1994 interview with a Commission investigator and her March 11, 1995
answers to interrogatories, Complainant states that Corpuz took out
the eight one-hundred dollar bills. (Ex. 51 p. 23; Ex. 5,
respectively.) Complainant told Dr. Bussey Corpuz offered her $600
to say "I love you". (Ex. 17) Complainant also did not complain
about this incident to Nascimento when she saw him on November 28,
1990. (Tr. 553, 609-610)
Finally, the preponderance of the evidence does not show that
the alleged incidents of crotch grabbing occurred. Complainant's
testimony regarding this conduct was again inconsistent. At the
hearing, Complainant testified that the first incident of crotch
grabbing occurred on November 28, 1990 when one carpenter grabbed
his crotch area, jumped back, and said, "Oh, Susan, I thought you
were going to grab my da kine", and that two other crew members also
grabbed their crotches and started laughing. She testified that
Corpuz was present, took no corrective action and laughed too. (Tr.
31-32, 38, 134-136) However, later in the hearing Complainant
testified that she tried to speak to Ternberg about the crew's
crotch grabbing on November 26, 1990, two days before the first
incident allegedly occurred. (Tr. 230-231) In her answers to
interrogatories, Complainant states that the November 28, 1990
incident occurred while she was working at the Stouffer Wailea Beach
Resort Hotel. (Ex. 5) However, Corpuz's log shows that the crew
did not begin work at that hotel until December 3, 1990. (Ex. R-A)
Complainant's April 25, 1991 notes state that the above incident
occurred on November 30, 1990. However, at the hearing and during
her February 15, 1995 interview, Complainant did not testify about
any incident occurring that day. (Tr. 31-38; Ex. 51 p. 24) In her
answers to interrogatories, Complainant states that the incident
occurred on November 30, 1990 but involved only one carpenter. (Ex.
5) At the hearing, Complainant stated that the incidents of crotch
grabbing stopped by December 14, 1990 after she made her second
complaint to the union. (Tr. 47, 121-122) However, in her answers
to interrogatories and February 15, 1994 interview, Complainant
stated that the crotch grabbing occurred again on December 27, 1990
and that the crew "did it all the time". (Ex. 5; Ex. 51 p. 23,
respectively.) In her answers to interrogatories, Complainant
states that the December 27, 1990 incident occurred at the Grand
Hyatt job site. However, Corpuz's log shows that Complainant was
working at the Stouffer hotel that day. (Ex. R-A) Finally,
Jacobson and Piburn stated that they never saw crew members engage
in such conduct. (Tr. 1068-1069, 1088-1089; Ex. 51 p. 4) Jacobson,
Piburn, Nascimento and Ternberg also stated that Complainant did not
complain about any crotch grabbing conduct to them, despite openly
complaining about other less offensive conduct. (Tr. 970, 1069-
1070; Ex. 51 p. 4, 19-21) Complainant also did not mention such
conduct to Dr. Bussey when he interviewed her in August 1992. (Tr.
185-186; Ex. 17)


2. Whether The Sexual Conduct Was Unwelcome
The Executive Director has shown by a preponderance of the
evidence that the conduct was unwelcome. Complainant testified that
she consistently refused Corpuz's invitations and that his behavior
made her feel insulted, embarrassed and upset. She also testified
that she felt the crew's behavior was demeaning and made her feel
terrible, inferior and unwanted at the work site. She complained
about the conduct to Ternberg, Nascimento and some of her co-
workers. Complainant was clearly offended by the conduct and no
evidence was presented to show that she solicited, incited or
welcomed such conduct.


3. Whether The Conduct Created An Intimidating, Hostile Or
Offensive Work Environment

The record shows that Corpuz physically slapped Complainant on
the butt and offered her $100 to say "I love you" in Ilocano.
Corpuz also constantly asked her to go out drinking and to chicken
fights despite her repeated refusals. The record also shows that
Complainant was told she should "stay home and make babies" and that
the crew freely used profanity and joked and talked about sex.
Nascimento testified that female carpenters from other crews
commonly complained about the use of profanity and sexual jokes at
work sites. (Tr. 550) I therefore conclude that a reasonable woman
would consider the conduct of Corpuz and the crew sufficiently
severe and pervasive to create a hostile and offensive work
environment.

C. Retaliation
The Executive Director alleges that Respondents retaliated
against Complainant after she complained about the sexual conduct
when: a) Corpuz intimidated Complainant by implying that he had
syndicate ties and would physically harm her; b) Corpuz scrutinized
her work and asked other carpenters to watch Complainant so she
could be fired; c) Corpuz isolated Complainant from the crew; and
d) Cabradilla yelled at her and accused her of leaving work early
on February 25, 1991 and lunged and attempted to choke her.
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. Because the section includes opposition to
unlawful discriminatory practices, protected actions need not be
related to administrative or judicial proceedings. EEOC v. Kallir,
Philips, Ross, Inc., 401 F.Supp 66, 10 EPD 10,366 at 5542 (S.D. N.Y.
1975). In addition, a person is protected from retaliation
regardless of whether the conduct he or she opposes is actually
illegal so long as he or she has a reasonable belief that the
employer is engaging in illegal activity. Hearth v. Metropolitan
Transit Commission, 436 F.Supp 685, 15 EPD 8077 at 7274-7275 (D.
Minn. 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 (2nd Cir. 1992). In the present case, the Executive
Director did not present any direct evidence of retaliation.
To establish a prima facie case of retaliation prohibited by
H.R.S. Chapter 378, the Executive Director must establish 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 individuals 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. JR 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 weight of the evidence does not show that Complainant was
subject to adverse treatment because she complained about unwanted
sexual conduct. The record does not show that Corpuz attempted to
intimidate Complainant by implying syndicate ties or physically
threatening her. Complainant testified she overheard Corpuz make
vague references to the syndicate in connection with chicken fights
when he was putting tools away and she thought it was to intimidate
her. (Tr. 64-65, 232-239) In an early interview with a Commission
investigator, Complainant stated only that some "people" told her
that Corpuz and Cabradilla had syndicate connections because they
raised fighting cocks. (Ex. R-E p. 29) Complainant admitted that
from these conversations and from newspaper articles she read, she
assumed that Corpuz and Cabradilla belonged to a Filipino syndicate.
Jacobson and Complainant herself testified that Corpuz told
Complainant to "watch out", "watch your mouth" or threatened to
have her kicked out of the union only in the context of criticizing
her for not following work instructions or for talking back. (Tr.
64, 483) Corpuz testified that he also told Complainant to "watch
out" when she didn't follow safety procedures. (Tr. 337, 353, 391)
The evidence also does not show that Corpuz scrutinized
Complainant's work or asked others to watch Complainant so she could
be fired. Scott Wical, a Caucasian journeyman Complainant was
assigned to work with for several weeks, testified that Corpuz
called them on the radio to check on materials or other work matters
and not to check on Complainant. (Tr. 636-637) All the carpenters
testified that Corpuz did not ask them to watch Complainant so she
could be fired. (Tr. 649, 871, 932-933, 1058, 1126-1127) Instead,
Piburn testified that Nascimento asked the Caucasian carpenters to
watch over Complainant in order to help her out. (Tr. 1028; Ex. 51
p. 15)
The evidence also shows there was no attempt to isolate
Complainant from the rest of the crew. Instead, Piburn stated that
Nascimento also asked him to keep her away from certain Filipino
carpenters so there would be less conflict. (Ex. 51 p. 15)
Jacobson stated that he heard Complainant ask Ternberg to keep
Corpuz and certain carpenters away from her and that Ternberg in
turn asked him to keep Complainant away from Corpuz and Cabradilla.
(Ex. 51 p. 5, 8) Wical testified that he and Complainant worked
together for several weeks away from the rest of the crew because
they were a special satellite team doing door frames. (Tr. 635-637,
645)
Finally, the evidence does not show that Cabradilla retaliated
against Complainant when he berated her for being "no good" and
accused her of leaving early. The record shows that Cabradilla
exploded and yelled at all the carpenters, not only Complainant.
(Tr. 1091-1093; Ex. 51 p. 5-6). The record also shows that some
male carpenters did complain about Complainant leaving early without
putting tools away. (Tr. 418, 786, 954-956, 1166-1168) In
addition, the weight of the evidence does not show that Cabradilla
lunged at or attempted to choke Complainant on her last day of work.
When Complainant spoke to Nascimento on the day of the incident,
she stated that Cabradilla raged at her, but did not mention any
lunging or choking. (Tr. 560-561) In her notes received on April
25, 1991 Complainant states that Cabradilla yelled at her and
continued to yell as he followed her out of the ballroom. Again,
there is no mention of lunging or choking. (Ex. 9) In an early
interview with a Commission investigator, Complainant states that
Cabradilla started to walk towards her, she became afraid and left.
(Ex. R-E p. 30) In her August 28, 1992 interview with Dr. Bussey
she also does not mention any lunging or choking. (Ex. 17)
For these reasons, I conclude that Respondents did not
retaliate against Complainant for complaining about the unwanted
sexual conduct.

D. Constructive Discharge
Constructive discharge occurs when a reasonable person in the
employee's position would have felt that she was forced to quit
because of intolerable and discriminatory working conditions. Tseu,
on behalf of the complaint filed by Davis v. Volcano Island Farms,
Inc. Docket No. 94-003-E-R (February 8, 1995) (hereinafter Davis);
Santos, supra; Watson v. Nationwide Ins. Co., 823 F.2d 360, 361, 43
EPD 37,298 (9th Cir. 1987). This test is an objective one
and does not involve showing employer intent to force the
complainant to resign. Davis; supra; Santos; supra; Watson, supra.
In general, a single isolated instance of employment
discrimination is not sufficient to support a finding of
constructive discharge. Id. A complainant must instead show some
aggravating factors, such as a continuous pattern of discriminatory
treatment. Id.
In the present case, the Executive Director has not shown by a
preponderance of the evidence that Complainant was forced to quit
her job because of Corpuz's and the crew's sexual conduct. The
record shows that after Complainant made her second complaint to the
union on December 14, 1990 regarding: 1) Corpuz slapping her on the
butt; 2) Corpuz offering her $100 to say "I love you" in Ilocano;
and 3) the crew's use of profanity, all of this conduct stopped.
The only unwelcome sexual conduct which continued was Corpuz's
invitations to go drinking and to chicken fights. While Corpuz's
invitations annoyed Complainant, they were not so intolerable as to
force her to quit.
The record instead shows that after December 14, 1990, other
non-discriminatory events caused Complainant to get "fed up" and
quit. Jacobson and Piburn testified that Complainant continued to
have work conflicts and arguments with Corpuz which upset her and
made her cry. In addition, Complainant mistakenly thought that
Corpuz was retaliating against her for complaining to Ternberg and
the union, and she erroneously thought that Cabradilla was
retaliating against her when he accused her of leaving work early.
(See discussion in Section III.C. above.) The work conflicts and
perceived retaliation caused Complainant to quit, not the
discriminatory conduct by Respondents.


D. LIABILITY


1. Respondent Cederquist
An employer is responsible for its acts of sexual harassment
and those of its agents and supervisory employees regardless of
whether the acts were authorized or even forbidden, and regardless
of whether the employer knew or should have known of their
occurrence. H.A.R.  12-46-109(c). Because Corpuz was a
supervisor and agent of Respondent Cederquist during Complainant's
employment, the corporation is liable for Corpuz's conduct towards
Complainant.
An employer is responsible for acts of sexual harassment
between employees where the employer or its agents or supervisory
employees knows or should have known of the conduct and fails to
take immediate and appropriate corrective action. H.A.R.  12-46-
109(d). Corrective action is appropriate if it: 1) involves a
prompt and thorough investigation of the allegations; 2) ends the
current harassment; and 3) deters future harassment by the same
offender or others. Ellison v. Brady, supra, at 65,629-65,630;
Fuller v. City of Oakland, 47 F.3d 1522, 65 EPD 43,431 at 82,074-
82,075 (9th Cir. 1995) If no corrective action is undertaken, or if
the corrective action attempted is inappropriate, liability will
attach. Fuller, supra, at 82,075-82,076.
In the present case, Respondent Cederquist knew of the
unwelcome sexual conduct by its crew. Complainant informed Ternberg
about the crew's use of profanity. The union and Pacific
Construction EEO officer also informed Ternberg about her
complaints. Respondent Cederquist also failed to take immediate and
appropriate corrective action. Ternberg felt that Complainant's
complaints were "minute" and "far out". He took action only after
the union and Pacific Construction EEO officer spoke to him about
the complaints. While Ternberg did speak to the crew generally
about treating Complainant "the way you would treat people at home",
he did not: a) conduct a full investigation of Complainant's
allegations by interviewing witnesses; b) express strong
disapproval of such conduct; or c) inform the crew of any
sanctions if such behavior continued. Thus, although almost all of
the crew's sexual conduct fortuitously ceased, the corporation's
failure to take appropriate action is still unacceptable. It
remains liable for the unwanted sexual conduct of its crew.


2. Respondent Corpuz
Corpuz, as an agent of Cederquist, is an employer under H.R.S.
 378-1. Therefore, pursuant to H.A.R. 12-46-109(c), he is
personally liable for sexually harassing Complainant.


E. REMEDIES
The Executive Director requests that Respondents be ordered to
pay Complainant back pay and compensatory and punitive damages. The
Executive Director also seeks to have the Commission issue a cease
and desist order; have Respondent Cederquist, Inc. implement and
adopt policies and procedures against employment discrimination
based on sex, harassment and retaliation; and have Respondents
publish the results of the Commission's investigation in a press
statement provided by the Commission in the Sunday edition of the
Honolulu Advertiser and in a newspaper having a general circulation
on Maui.


1. Back Pay
Because I conclude that Respondents did not constructively
discharge Complainant because of her sex or in retaliation for
complaining about the sexual harassment, she is not entitled to back
pay.


2. Compensatory Damages
Pursuant to H.R.S. 368-17, the Commission has the authority to
award compensatory damages for any pain, suffering, embarrassment,
humiliation or emotional distress Complainant suffered as a result
of the sexual harassment. The amount awarded as compensatory
damages is generally based on a consideration of both the severity
and duration of the harm. Restatement of Torts 2d  905 (1979)
The evidence shows that Complainant was insulted and annoyed by
Corpuz's constant invitations to go drinking and to chicken fights.
She was embarrassed and upset after he slapped her butt and offered
her $100 to say "I love you" in Ilocano. These injuries were
observed in part by Jacobson, Nascimento and Piburn. While the slap
on the butt and offering of money to say "I love you" occurred once
each, Corpuz's invitations were constant throughout Complainant's
four months of employment at Cederquist. Considering these
circumstances, I determine that $20,000 is appropriate compensation
for Complainant's emotional distress caused by Corpuz's conduct.
The evidence also shows that Complainant was also emotionally
injured by the conduct of the crew. The constant use of profanity
and being told "you should stay home and make babies" was offensive
and degrading to Complainant. It made her feel disgusted, terrible
and unwanted at the work site. Such conduct, however, for the most
part stopped after an approximately one month period. Considering
these circumstances, I determine that $10,000 is appropriate
compensation for Complainant's emotional distress caused by the
crew's conduct.
The Executive Director argues that during and after
Complainant's employment at Cederquist, she developed post traumatic
stress disorder or adjustment disorder with post traumatic type
symptoms. The essential feature of post traumatic stress disorder
is the development of characteristic symptoms following a
psychologically distressing event that is outside the range of usual
human experience. Thus, a person must experience an event that
would be markedly distressing to almost anyone (criteria A) and
experience the following types of symptoms: persistent
reexperiencing of the traumatic event (criteria B), persistent
avoidance of stimuli associated with the event or a numbing of
general responsiveness (criteria C), persistent increased arousal
(criteria D), and duration of such symptoms for at least one month
(criteria E). (Tr. 173-174; Diagnostic and Statistical Manual of
Mental Disorders, Third Edition - Revised (DSM-III-R), American
Psychiatric Association (1987) p. 247-251)
The record and Dr. Bussey's report show that Complainant's
fears and most of her post traumatic type symptoms arose on or after
her last day of work on February 26, 1991. (Tr. 173-174) Jacobson
and Piburn testified that during her employment, Complainant wasn't
afraid of Corpuz and instead was rather defiant. (Tr. 483, 1065)
Jacobson testified that Complainant was intimidated by Cabradilla
not because of his conduct towards her, but because Cabradilla had
a reputation for having a violent temper. (Tr. 483-484)
Nascimento stated that Complainant indicated she was afraid of
Corpuz and Cabradilla only on February 26, 1991 when she refused to
file a grievance against them for the events which occurred that
morning. (Ex. 51 p. 20) In an early interview with a Commission
investigator, Complainant states that she felt she might "get hurt
later" and that she felt intimidated during and after the February
26, 1991 incident
with Cabradilla. (Ex. R-E p. 30-31) Dr. Bussey opined that
Complainant's fears arose from the February 26, 1991 incident with
Cabradilla and that her symptoms stemmed from: a) her
misperceptions that Corpuz and Cabradilla were retaliating against
her; and b) her stereotypes and misassumptions that Corpuz and
Cabradilla belonged to a Filipino syndicate and would physically
harm her. (Tr. 173-174; Ex. 17)
The essential feature of adjustment disorder is some life event
that is stressful and has resulted in impaired psychological and
behavioral functioning. (Tr. 175) Dr. Bussey's alternate diagnosis
of adjustment disorder with post traumatic type symptoms is based on
symptoms which stemmed from: a) Corpuz and the crew's sexual
harassment; b) Complainant's work conflicts with Corpuz; c) her
misperceptions that Corpuz and Cabradilla were retaliating against
her; and d) her stereotypes and misassumptions that Corpuz and
Cabradilla belonged to a Filipino syndicate and would physically
harm her. (Tr. 174-176; Ex. 17)
Because Complainant's fears and most of her symptoms were not
caused by the sexual harassment by Corpuz, Cabradilla or the crew,
I conclude that Complainant did not suffer either post traumatic
stress disorder or adjustment disorder as a result of their
discriminatory conduct.


3. Punitive Damages
H.R.S.  368-17 also authorizes the Commission to award
punitive damages. Punitive damages are assessed in addition to
compensatory damages to punish a respondent for aggravated or
outrageous misconduct and to deter the respondent and others from
similar conduct in the future. See, Shaw, supra; Santos, supra;
Masaki v. General Motors Corp., 71 Haw. 1, 6, 780 P.2d 566 (1989).
Since its purposes are punishment and deterrence, punitive damages
are awarded only when a respondent's wrongdoing has been intentional
and deliberate, and has the character of outrage frequently
associated with crime. Id.
The Executive Director is required to show, by clear and
convincing evidence, that Respondents acted wantonly, oppressively
or with such malice as implies a spirit of mischief or criminal
indifference to civil obligations, or where there has been some
wilful misconduct or entire want or care which would raise the
presumption of a conscious indifference to consequences. Id. at 15-
17.
The Executive Director has not meet this burden. The evidence
does not show that Respondents engaged in aggravated or outrageous
misconduct. C.f., Santos, supra, (aggravated and outrageous
misconduct found where agent made sexual comments, gestures and
physically assaulted complainant for over two years). Aside from
being slapped once on the butt, Complainant was subjected to visual
and verbal conduct which ceased immediately after her second
complaint and within one and a half months of her employment.
Although Respondent Corpuz continued to ask Complainant to go
drinking and to chicken fights, I do not find such conduct so
shocking or offensive as to rise to the level of aggravated or
outrageous misconduct. Furthermore, while Ternberg
failed to fully investigate Complainant's complaints and adequately
express disapproval and sanctions for such conduct, he did speak to
the crew about its use of profanity, told them to treat Complainant
the way "you treat people at home" and had Complainant work with the
Caucasian carpenters she got along with.
For these reasons, I decline to award punitive damages.


4. Equitable Relief
The Executive Director also seeks the following equitable
relief:
a) to have the Commission issue a cease and desist order;

b) have Respondent Cederquist, Inc. implement and adopt a
policies and procedures against employment discrimination
based on sex, harassment and retaliation; and

c) to have Respondents publish the results of the
Commission's investigation in a press statement provided
by the Commission in the Sunday edition of the Honolulu
Advertiser and in a newspaper having a general circulation
on Maui, Hawaii.
Because Respondent Cederquist is no longer doing business, I
recommend that the Commission issue a cease and desist order and
order Cederquist to develop and implement non discrimination
policies based on sex and harassment, should the corporation return
to do business in Hawaii.
The best way to publicize this decision to the public is to
require the Respondents to publish the attached Public Notice
(Attachment 1) in the Sunday edition of the Advertiser and in a
newspaper having a general circulation on Maui, Hawaii.

V. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents Cederquist and Corpuz
violated H.R.S.  378-2 and H.A.R.  12-46-109 by subjecting
Complainant Susan Collins to unwelcome sexual conduct which created
an intimidating, hostile and offensive work environment.
For the violations found above, I recommend that pursuant to
H.R.S.  368-17, the Commission should order:
1. Respondents Cederquist, Inc. and Andres Corpuz jointly and
severally to pay Complainant $20,000 as damages in compensation for
her emotional injuries caused by Respondent Corpuz's sexual
harassment.
2. Respondent Cederquist, Inc. to pay Complainant $10,000 as
damages in compensation for her emotional injuries caused by the
crew's sexual harassment.
3. Respondents Cederquist, Inc. and Corpuz to jointly publish
the attached Notice (Attachment 1) in the Sunday edition of the
Honolulu Advertiser and in a newspaper having a general circulation
in the county of Maui within 10 days of the Commission's final
decision in this matter.
4. Respondent Cederquist, Inc. to cease and desist from
discriminating against all future employees on the basis of sex and
to develop a non-discrimination policy on the basis of sex and
harassment should it return to conduct business in the state of
Hawaii.

DATED: Honolulu, Hawaii __________________________.

HAWAII CIVIL RIGHTS COMMISSION



__________________________
LIVIA WANG
Hearings Examiner




ATTACHMENT 1


PUBLIC NOTICE

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


After a full hearing, the Hawaii Civil Rights Commission has
found that Respondents Cederquist, Inc. and Andres Corpuz violated
Hawaii Revised Statutes Chapter 378, Employment Discrimination, when
they subjected a female employee to unwanted sexual conduct which
created an intimidating, hostile and offensive work environment.

(Linda C. Tseu on behalf of the Complaint filed by Susan Collins v.
Cederquist, Inc. and Andres Corpuz, Docket No. 95-001-E-R-S, [date
of final decision], 1996).

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

1) Pay that employee an award to compensate her for emotional
injuries she suffered.

2) Immediately cease and desist from sexually harassing all
future employees and require Cederquist, Inc. to develop
written non-discrimination policies on sex and harassment
should it return to conduct business in the State of
Hawaii.



DATED: ______________________________

BY: ______________________________
Authorized Agent for
Cederquist, Inc.


______________________________
ANDRES CORPUZ




APPENDIX A


On June 25, 1991 Complainant Susan Collins filed a complaint
with this Commission alleging sex and race harassment and
retaliation against Respondents Cederquist, Inc., Andres Corpuz and
Teresito Cabradilla.
On October 27, 1994 the Executive Director sent Respondents
final conciliation demand letters pursuant to Hawaii Administrative
Rule (H.A.R.)  12-46-17. Respondents received such letters on
November 2, 1994.
On January 10, 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 January 25, 1995. Respondents Corpuz and Cabradilla
filed their Scheduling Conference Statement on January 31, 1995.
Respondent Cederquist, Inc. filed its scheduling conference
statement on February 6, 1995. A scheduling conference was held on
February 8, 1995 and the Scheduling Conference Order was issued on
February 9, 1995.
On March 8, 1995 Respondents Corpuz and Cabradilla filed an
Objection and Motion For Protective Order from the Executive
Director's request that they produce documents relating to their
financial conditions. On March 13, 1995 the Executive Director
filed a memorandum in opposition to this motion. On March 14, 1995
the Hearings Examiner issued an order denying Respondents' motion
and placed the documents under a protective order.
- i -

On May 17, 1995 the Executive Director filed a motion to extend
deadlines for discovery, pre-hearing motions and pre-hearing
conference. Respondents did not file any memoranda in opposition to
the motion and on May 25, 1995 an order granting the motion was
issued.
On June 1, 1995 notices of hearing and pre-hearing conference
were issued. On June 16, 1995 Respondents Corpuz and Cabradilla
filed their pre-hearing conference statement. On June 21, 1995 the
Executive Director filed its pre-hearing conference statement. By
letters dated June 19 and 21, 1995 Respondents Corpuz and Cabradilla
filed lists of supplemental character witnesses. On June 23, 1995
Respondent Cederquist, Inc. filed its pre-hearing conference
statement. On June 28, 1995 a pre-hearing conference was held and
on June 29, 1995 a pre-hearing conference order was issued.
On June 15, 1995 Respondents Corpuz and Cabradilla filed a
motion to dismiss on the grounds that the Notice of Finding of
Reasonable Cause was untimely filed. On June 16, 1995 Respondents
Corpuz and Cabradilla filed a motion in limine to exclude the
investigative reports of Mary Nakamura Gonzales. On June 21, 1995
the Executive Director filed a memorandum in opposition to the
motion in limine. On June 23, 1995 Respondent Cederquist, Inc.
filed a joinder in the motion to dismiss and motion in limine. On
June 26, 1995 the Executive Director filed a memorandum in
opposition to the motion to dismiss. On June 27, 1995 Respondents
- ii -

Corpuz and Cabradilla filed a response to the Executive Director's
memorandum in opposition to the motion to dismiss. On June 28, 1995
the Executive Director filed an affidavit and supplemental exhibits
in opposition to the motion to dismiss.
On June 28, 1995 hearings were held on Respondents' motion to
dismiss and motion in limine. On June 29, 1995 the Hearings
Examiner issued orders denying the motion to dismiss and granting in
part and denying in part the motion in limine.
On June 27, 1995 the parties filed a stipulation to extend
discovery.
On June 27, 1995 the Executive Director filed a motion in
limine to exclude certain supplemental witnesses. On June 29, 1995
Respondents Corpuz and Cabradilla filed a memorandum in opposition
to the motion in limine. On July 5, 1995 a hearing was held on the
motion in limine and the motion was orally granted in part, although
Respondents Corpuz and Cabradilla were allowed to present some of
the witnesses as rebuttal witnesses.
Pursuant to H.R.S. Chapters 91 and 368, the contested case
hearing on this matter was held on July 5, 6 and 7 1995 the at the
conference room of the offices of Ueoka & Ueoka, 2103 Wells Street,
Wailuku, Maui Hawaii before the undersigned Hearings Examiner. The
Executive Director was represented by Enforcement Attorney Karl K.
Sakamoto and law clerk Young Lee. Complainant Collins was present
during portions of the hearing. Respondents Corpuz and Cabradilla
were represented by Meyer M. Ueoka, Esq. Pursuant to notice given
- iii -

at the pre-hearing conference, Respondent Cederquist, Inc. declined
to participate in the contested case hearing. During the taking
of testimony on July 6, 1995 it was discovered that pursuant to a
H.A.R.  12-46-41 demand for disclosure, Respondents Corpuz and
Cabradilla received copies of nine Commission interview notes which
differed from the original notes in the Executive Director's
possession. On July 7, 1995 the Hearings Examiner suspended the
contest case hearing and ordered: a) the Executive Director to give
Respondents copies of the original interview notes; b) the
Executive Director to file a statement explaining why the original
investigator interview notes were not disclosed to Respondents and
who was involved in the failure to disclose; and c) the parties to
file motions to request appropriate relief. On July 14, 1995 the
Executive Director filed a statement as to why the original
investigator interview notes were not disclosed to Respondents. On
July 26, 1995 Respondents Corpuz and Cabradilla filed a motion to
dismiss, or in the alternative to strike testimonies. On July 28,
1995 Respondent Cederquist, Inc. joined in the motion. On July 28,
1995 the Executive Director filed a motion to resume suspended
contested case hearing and on August 2, 1995 it filed a response to
Respondents' motion to dismiss. A hearing on the motions was held
on August 3, 1995. At the hearing, the Hearings Examiner found that
the alteration of the interview notes was not made in bad faith, but
was intentional and negligent. On August 4, 1995 an order was
issued denying Respondents' motion to dismiss, or in the
- iv -

alternative to strike testimonies, but allowing Respondents to re-
cross examine witnesses who had previously testified at the
contested case hearing.
On November 7, 1995 the Executive Director filed an ex parte
motion to dismiss the complaint against Respondent Teresito
Cabradilla with prejudice. That day, the Hearings Examiner issued
an order granting the motion and dismissing the complaint against
Respondent Cabradilla with prejudice.
The contested case hearing resumed on November 27, 28 and 29
1995 at the conference room of the offices of Ueoka & Ueoka, 2103
Wells Street, Wailuku, Maui Hawaii before the undersigned Hearings
Examiner. The Executive Director was represented by Enforcement
Attorney Karl K. Sakamoto and law clerk Young Lee. Complainant
Collins was present during portions of the hearing. Respondent
Corpuz was represented by Meyer M. Ueoka, Esq. Pursuant to notice
given on August 3, 1995 Respondent Cederquist, Inc. again declined
to participate in the contested case hearing.
On December 18, 1995 the Executive Director and Respondent
Corpuz filed post-hearing briefs.
On January 5, 1996 Respondent Corpuz filed a motion to reopen
hearing for the purpose of taking the testimony of Jim Riley. On
January 10, 1996 the Executive Director filed a memorandum in
opposition to the motion. On January 16, 1996 a hearing was held on
the motion. At the hearing, the Executive Director orally moved to
reopen the hearing to take the testimony of Frank Sam Piburn.
- v -


On January 17, 1996 the Hearings Examiner issued an order granting
both motions.
The contested case hearing was reopened on January 25, 1996 and
held at the conference room of the offices of Ueoka & Ueoka, 2103
Wells Street, Wailuku, Maui Hawaii before the undersigned Hearings
Examiner. The Executive Director was represented by Enforcement
Attorney Karl K. Sakamoto. Respondent Corpuz was represented by
Meyer M. Ueoka, Esq. Pursuant to notice given on January 19, 1996
Respondent Cederquist, Inc. again declined to participate in the
contested case hearing.
On February 23, 1996 Respondent Corpuz filed a supplemental
post-hearing brief. On March 7, 1996 Respondent Cedequist filed a
post-hearing brief.
- vi -

---------------------------
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 Respondent Cederquist, Inc.'s
exhibits; "Ex." followed by the letters "R-___" refers to Respondent
Andres Corpuz's exhibits.

3. On November 7, 1995 the Executive Director dismissed
Cabradilla as a party respondent to this action. See, Appendix A p.
v.

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

5. This definition has been in effect since 1981. See, L
1981, c 94  2)

6. Although H.A.R.  12-46-109 became effective on December
31, 1990, it is substantively identical to its predecessor rule,
H.A.R.  12-23-59 which became effective on November 15, 1982.

7. Jacobson's credibility during the hearing was for the most
part questionable. He claimed he was working in the same room with
Complainant on November 5, 1990 and saw Corpuz slap Complainant on
her "rear end". (Tr. 458, 626) However, in his February 23, 1994
interview with a Commission investigator, Jacobson stated that he
only saw Corpuz bump into Complainant while passing by, and that she
may have told him that Corpuz touched her on her behind. (Ex. 51 p.
3) In addition, Corpuz's log shows that Jacobson was not working in
the same room with Complainant that day. (Ex. R-A) At the hearing,
Jacobson also testified that Complainant told him that Corpuz had
asked her out. (Tr. 465-466). Later, Jacobson testified that he
actually heard Corpuz ask Complainant out. (Tr. 495-496). However,
in his interview with the Commission investigator, Jacobson stated
he didn't hear Corpuz ask Complainant out. (Ex. 51 p. 2) Finally,
Jacobson claimed he was present with Complainant when she met with
Ternberg on November 28, 1990, that the meeting occurred in the
afternoon and that he heard Ternberg tell Complainant, "If you can't
take the heat, get out of the kitchen". (Tr. 480) However,
Complainant testified that she was alone when she met with Ternberg
and that the meeting occurred first thing in the morning. (Tr. 232,
236; Ex. 12 p. 71) In his interview with a Commission investigator,
Jacobson stated that he didn't hear Ternberg make the "kitchen heat"
comment. (Ex. 51 p. 11)