Davidra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII



LINDA C. TSEU, Executive ) Docket No. 94-003-E-R
Director, on behalf of )
the complaint filed by ) HEARINGS EXAMINER'S
DIANE DAVIS, deceased, by ) FINDINGS OF FACT,
her husband STEVE DAVIS, ) CONCLUSIONS OF LAW AND
) RECOMMENDED ORDER;
v. ) APPENDIX A; ATTACHMENT 1
)
VOLCANO ISLAND FARMS, INC. )
dba THE HAWAIIAN HEMP )
COMPANY, and DWIGHT KONDO, )
)
Respondents. )
______________________________)


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


I. INTRODUCTION

A. Chronology of Case
The procedural history of this case is set forth in the
attached Appendix A.
B. Summary of the Parties' Contentions
The Executive Director asserts that Respondents Volcano Island
Farms, Inc. dba the Hawaiian Hemp Company (hereinafter "Company")
and Dwight Kondo (hereinafter "Kondo") violated H.R.S.  378-2 when
it: 1) harassed Complainant Davis because of her race; and
2) terminated or constructively discharged Complainant because of
her race.
Respondents deny that the alleged harassment occurred and
contends that Complainant voluntarily left her job because she was
unhappy about increased production demands.
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. In December 1990 Respondent Volcano Island Farms Inc. was
incorporated to do business in the State of Hawaii. At that time,
Respondent Kondo (Japanese) was the president and sole shareholder
of the corporation. The corporation first farmed tomatoes but later
discontinued this line of business. (Ex. 23 at 16-17)[2]
2. In February 1991 Kondo attended a talk given by Aaron
Anderson and Roger Christie about various uses of the marijuana
(hemp) plant. Anderson and Christie were members of the Hawaiian
Hemp Council, a non-profit corporation which promotes the
legalization of marijuana. After the talk, Respondent Kondo met
with Anderson and Christie and decided to form the Hawaiian Hemp
Company to produce and sell products made from hemp cloth.
3. Respondent Hemp Company opened in December 1991. It is
located in Pahoa, Hawaii. During Complainant's employment at the
Company, the business was primarily engaged in making clothing,
accessories and other products from hemp cloth. Kondo is the
president and chief operating officer of the Company and has the
authority to hire, discipline and fire employees. (Prehearing
Conference Order dated Sept. 2, 1994 stipulated facts nos. 2, 3)
4. Complainant Davis (caucasian) was a citizen of New
Zealand. She and her husband, Steve Davis, moved to Hawaii in 1991
when she was about 44 years old. Complainant had been a seamstress
for more than 15 years and a fashion model for about six years. In
1992 Complainant developed a thyroid problem and in 1993 she was
diagnosed as having breast cancer. (Ex. 1 at 7-8, 34-37)
5. Some time around November 1991 Kondo met Complainant and
asked her if she was interested in designing and sewing clothes for
the Company. Complainant said she was interested and Kondo hired
her as a clothing designer, seamstress and production manager. (Ex.
1 at 11, 56-57; Ex. 23 at 85-89)
6. Complainant began to work for the Company in January 1992.
She designed all the clothing produced by the Company and supervised
other seamstresses and cutters. She was the highest paid employee
and earned $8 and later $10 per hour. (Ex. 1 at
11-12, 60; Ex. 23 at 130)
7. From January 1991 to June 1993, the Company had about four
to six employees and several volunteers working at any one time.
During this period, most of the employees and volunteers were
caucasian and were supporters of the marijuana legalization
movement.
8. At the beginning of Complainant's employment with the
Company, Kondo was very pleased with Complainant's work and was very
friendly towards her. (Ex. 1 at 22-23; Ex. BB)
9. Kondo's attitude towards Complainant changed in the spring
of 1992. At that time, the Company was working on a fashion show
for the British Broadcasting Corporation. The Company had also
hired two new seamstresses. During work on the fashion show, the
new seamstresses told Kondo that Complainant had misspent Company
money, had spent Company money on herself, was padding her hours and
was gossiping about Kondo's sex life. Kondo felt that Complainant
was cheating him and had betrayed his trust. (Exs. 14, BB, CC, DD)
10. In June 1992 Complainant quit[3] her job at the Company
after a seamstress told her that Kondo felt that Complainant was
"ripping off the company" and had questioned the seamstress about
Complainant's honesty. Complainant was upset that Kondo believed
the new seamstresses' allegations, without first confirming them
with her. (Ex. BB, DD)
11. Some weeks later, Complainant and her husband had a
meeting with Kondo, Christie and another partner, Greg Lee, to
discuss Complainant's work habits and working conditions at the
Company. Kondo had already hired another seamstress, Ana Reinhardt
(caucasian), to fill Complainant's position. Kondo wanted
Complainant to sew for the Company on a piece work basis at home.
Complainant refused because the hemp fabric was too heavy for her
machine. (Ex. 1 at 207-208; Exs. CC, DD)
12. Reinhardt later proved to be less skilled than
Complainant. In August 1992 the Company asked Complainant to return
as a seamstress under the supervision of Reinhardt. Complainant
agreed on the condition that the Company pay her medical benefits
and start withholding her taxes. In September 1992 Complainant was
rehired by the Company as a seamstress.
(Ex. 1 at 11, 27, 107; Exs. 14, 18; Ex. 23 at 97-99; Exs. BB, DD)
13. After Complainant was rehired, she and Kondo had several
heated disagreements over economic matters unrelated to her race.
They argued over her wages, receiving worker's compensation for a
neck injury, whether the Company would withhold her taxes, when the
Company would pay for her health benefits, whether the Company would
pay for design classes she attended and the volume of clothing being
produced. While the Company made five payments towards
Complainant's COBRA health plan from her previous job, Complainant
made the rest of the payments herself and didn't receive HMSA
benefits from the Company until April 1993. The Company also didn't
pay Complainant's 1992 taxes and withhold her taxes until March 1993
after Complainant threatened to report the Company to the IRS. The
Company's failure to provide medical benefits and withhold taxes
stemmed from its financial difficulties. No other Company employees
had their taxes withheld, and no other employees received medical
benefits until April 1993. The partners constantly borrowed money
to pay wages and expenses. (Ex. 1 at 110-112, 214-215; Exs. 14, 18,
B, P, X, NN)
14. Complainant and Kondo also had personality conflicts
unrelated to Complainant's race. Kondo disliked Complainant because
she was not involved in the marijuana legalization movement and
because she continued to gossip about him in the sewing room. Kondo
was also moody and temperamental with Complainant and other
employees because the Company was having financial difficulties.
(Ex. 1 at 14-15, 23; Exs. 14, 18)
15. On the Company premises, Kondo often called or referred
to certain caucasian employees, caucasian volunteers and caucasians
in general as "fucking haole(s)", "haole bitch" or "fucking haole
bitch" when he was angry or disappointed in them. Kondo said these
words in a harsh or angry tone of voice. Complainant heard about
a dozen of these remarks. (Ex. 1 at 14, 17, 19-20, 27, 75-77, 87,
146, 153-154, 160; Exs. 14, 18)
16. During Complainant's employment with the Company, she
heard Kondo call her a "fucking haole" "haole bitch" or "fucking
haole bitch" on the following occasions:
a) During the fashion show, Respondent Kondo called
Complainant a "fucking haole bitch" during a disagreement over
how long it was taking Complainant to sew a dress. (Ex. 1 at
28, 146)
b) Shortly after Complainant received her HMSA benefits in
April 1993, she picked up an extension phone and heard Kondo
remark, "fucking haoles bleeding me dry". (Ex. 18)
c) In May 1993, Kondo stopped Complainant as she was going
downstairs from the sewing room and started to yell at her. He
appeared to be under the influence of some substance and
Complainant had never seen him that way before. Kondo ranted
about several things and called her a "fucking haole bitch".
After this incident, Complainant was afraid of Kondo and
avoided being alone with him. (Ex. 1 at 15-17, 91, 169-170)
d) In June 1993 as Complainant left the premises of the
Company on her last day of work, Kondo said "out of here you
fucking haole bitch". (Ex. 1 at 89-90, 162-166; Ex. 14)
17. Kondo's racial comments upset Complainant and sometimes
made her cry. The comments also made Complainant feel depressed,
demoralized and degraded. She felt she was being treated "like a
piece of dirt" and a "non-person". (Ex. 1 at 17-18, 21-23, 31-32)
18. On or about December 1992 Kondo's new girlfriend, Patricia
Borton (caucasian) began living on the Company premises. Borton was
a contract employee who did art work and cleaning for the Company.
Borton had some knowledge of sewing and told Kondo that Complainant
and the other hourly seamstress were not producing enough items and
were overpaid. Borton also told Kondo that the Company didn't need
to hire a cutter, since the seamstresses were each producing only 1
or 2 items of clothing a day. (Ex. B, Ex. 39 at 23, 40-41)
19. In early June 1993 Kondo, at the suggestion of Borton,
considered paying the seamstresses by piece work instead of hourly.
Kondo had Nancy Takayesu (Japanese), a piece work seamstresses who
usually sewed at home, work in the sewing room to monitor how much
time it took to sew different items. He also placed Borton in the
sewing room to cut fabric and monitor the production rate of the
seamstresses. (Ex. B)
20. After working in the sewing room, Borton met with Kondo
and Lee. They discussed the production level of the seamstresses,
the Company's expenses and developed a production quota for the
seamstresses. (Ex. 39 at 35)
21. On June 3, 1993 Kondo told Complainant that he might cut
back her work hours because the Company was losing money, but that
she would continue to receive medical benefits. Later that morning,
Borton was in the sewing room with Complainant, Takayesu and Beverly
Vance (caucasian). Borton commented to all the seamstresses that
"no one seems to care about production" and that she, Kondo and Lee
had decided that the hourly paid seamstresses had to produce items
worth three times the amount they were paid in order for the sewing
room to be profitable. (Ex. 1 at 26-27,
188-189; Ex. B; Ex. 39 at 34-36)
22. Complainant became upset and angry about Borton's presence
in the sewing room and the new production demands. She went down
stairs and spoke to Kondo about Borton's presence and comments.
Complainant told Kondo that the new production demands were
impossible to meet. Kondo stated that Borton was his girlfriend and
had his permission to be in charge. Kondo also stated, "If you
don't like it, you can leave." Complainant stated, "Is that what
you want?" Kondo replied "Yes". Complainant stated, "Oh well, I'm
quitting then."[4] Kondo then stated, "Fine, I'll get your check".
Kondo went to his office to write Complainant her last paycheck.
Complainant went back to the sewing room and collected her purse.
She announced to the other seamstresses that she had "resigned".
(Ex. 1 at 26-27; Ex. 16; Ex. 23 at 125-126; Ex. N at 25-27)
23. After June 3, 1993 the Company cut back its production of
clothes and accessories. Takayesu continues to do piece work sewing
at home and Borton occasionally sews a few items and is paid on a
piece work basis. The Company also buys and resells products from
other companies.
24. In October 1993 Complainant moved to New Zealand because
her parents were helping to pay for her cancer treatment. She died
of cancer on May 20, 1994. (Ex. 1 at 10; Ex.7)


III. CONCLUSIONS OF LAW[5]


A. Jurisdiction

1. Respondent Volcano Island Farms, Inc.
During Complainant's employment at the Company, Respondent
Company was a corporation with one or more employees. It is
therefore an employer under H.R.S.  387-1 and subject to the
provisions of H.R.S. Chapter 378.
2. Respondent Dwight Kondo
Respondent Kondo, as president, chief operating officer
and majority shareholder, served in a supervisory position over
Complainant. He exercised control over her hiring, firing and
conditions of employment. He is therefore an agent of Respondent
Company and an employer under H.R.S.  378-1. In Re Santos, Docket
No. 92-001-E-SH (January 25, 1993).


B. Racial Harassment
H.R.S.  378-2 prohibits an employer from discriminating
against an employee in the terms, conditions or privileges of
employment because of race. Racial harassment that creates an
intimidating, hostile or offensive work environment is a violation
of the above statute. See, H.A.R.  12-46-175(a); Patterson v.
McLean Credit Union, 491 U.S. 164, 109 S.Ct. 2363, 105 L.Ed.2d 132,
30 EPD 39,066 at 57,726-57,727 (1989); Harris v. Forklift Systems
Inc., 114 S.Ct. 367, 126 L.Ed. 2d 295, 62 EPD 42,623 at 77,397
(1993).
Although this Commission has no administrative rules on racial
harassment, it has enacted rules prohibiting ancestry harassment[6]
and through administrative decision has established the elements
necessary for proving hostile work environment sexual harassment.[7]
I conclude that such rules and Commission decision precedent are
instructive in cases involving racial harassment.
Accordingly, in the present case, the Executive Director is
required to show that:
1) Complainant was subjected to racial slurs or other verbal or
physical conduct relating to her race;
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[8];
3) the conduct was sufficiently severe or pervasive to alter the
conditions of employment, such as having the purpose or effect
of creating an intimidating, hostile or offensive work
environment, of unreasonably interfering with Complainant's
work performance or by otherwise adversely affecting
Complainant's employment opportunity.
Because the Complainant in the present case is a caucasian
woman, this objective standard is met if a reasonable caucasian
woman would consider such conduct sufficiently severe or
pervasive to alter the conditions of employment.

Once the Executive Director makes out the above prima facie
case of racial 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; or
3) showing that such conduct was trivial or isolated. In Re Santos
/ Hawaiian Flower Exports Inc., supra.


1. Whether the Racial Conduct Occurred
In the present case, the Executive Director has shown by
a preponderance of the evidence that Kondo subjected Complainant to
racial slurs. The evidence shows that Kondo called Complainant
"fucking haole", "fucking haole bitch" and "haole bitch"[9] at least
four times in a harsh or angry tone of voice. Complainant also
heard Kondo use the above slurs several times on Company premises
when speaking negatively to or about other employees, volunteers or
caucasian people in general.
Kondo denies that he said such words to Complainant or any
other employee while on the Company premises. He argues that
Complainant's testimony is not credible because she could not recall
or was inconsistent in recalling the dates the slurs were made.
While Complainant had difficulty remembering the dates of each
incident, I find her testimony credible. Complainant described in
some detail the circumstances of each incident and her deposition
testimony was for the most part consistent with written statements
she submitted to the Executive Director. Her memory lapses are
understandable given the medication she was taking during her
depositions.
I find Complainant's testimony credible also because portions
of it were corroborated by other witnesses. Other Company
contractors, employees and volunteers such as Aaron Anderson, Maggie
Frawley and even Kondo's girlfriend, Patricia Borton, heard Kondo
use the term "fucking haole" on Company premises. Anderson also
heard Kondo use the slur "haole bitch" in complaining about a female
employee. Leslie Christianson and Thomas Kamaki Rathburn, persons
who were living on the Company premises during a community theater
production, heard Kondo use the terms "fucking haole(s)", "haole
bitch" and "fucking haole bitch" when speaking negatively about
Complainant, other employees and other caucasian people. Steve
Davis also heard Kondo use such slurs while on the Company premises.
In addition, while there were no witnesses to the stairwell
incident, several persons, such as Dawn Hurwitz (a cafe owner and
Complainant's friend), James Davis (Complainant's father-in-law),
Christianson and Rathburn, testified that Complainant had told them
about the incident.


2. Whether the Conduct was Unwelcome
The Executive Director has also shown by a preponderance
of the evidence that the verbal conduct was unwelcomed. Complainant
had never been called racial names and was shocked by Kondo's use of
such slurs. Complainant and other witnesses, such as Reinhardt and
Andrew Keir (Complainant's neighbor) testified that Complainant
never made racial remarks to anyone.
The evidence also shows that the conduct affected Complainant's
emotional well being. Kondo's use of the terms "fucking haole(s)",
"fucking haole bitch" and "haole bitch" in anger towards Complainant
upset her and sometimes made her cry. The slurs also made
Complainant feel depressed, demoralized and degraded. She felt she
was being treated "like a piece of dirt" and a "non-person".
Complainant became afraid of Kondo and avoided him at work.


3. Whether the Conduct Created an Intimidating, Hostile
or Offensive Work Environment
Given the context, number of times and tone in which Kondo
used the slurs "fucking haole", "haole bitch" and "fucking haole
bitch", I also conclude that a reasonable caucasian woman would
consider Kondo's conduct sufficiently severe and pervasive to create
a hostile, intimidating and offensive work environment. See, Rodgers
v. Western Southern Life Ins. Co., 792 F.Supp. 628, 634-635 (E.D.
Wis. 1992), affirmed 12 F.3d 668, 63 EPD 42,729 (7th Cir. 1993)
(supervisor's infrequent use of racial comments such as "nigger" and
you Black guys are "too fucking dumb to be insurance agents" created
hostile work environment).
I therefore conclude that Kondo racially harassed Complainant.


C. Termination Based on Race
The Executive Director alleges that Complainant was fired
because of her race. However, the evidence shows that Respondents
did not fire Complainant. On her last day of work, Complainant
objected to Borton's presence in the sewing room and the new
production demands. Respondent Kondo told Complainant that if
Complainant didn't like the new arrangements, she could leave.
Complainant admitted stating, "Oh well, I'm quitting then."
Since Respondents did not fire Complainant, I therefore
conclude that Complainant was not fired because of her race.


D. Constructive Discharge
The Executive Director alternatively alleges that Complainant
was constructively discharged because of her race. 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. In Re Santos / Hawaiian
Flower Experts, Inc., supra; Watson v. Nationwide Ins. Co., 823
F.2d 360, 43 EPD 37,298 at 48,293 (9th Cir. 1987). This test is an
objective one and does not involve showing employer intent to force
the complainant to resign. Santos, supra; Watson, supra.
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 discriminatory working conditions. Complainant
testified that she was forced to quit because of Borton's presence
in the sewing room and the new production demands. While Borton's
presence and the new production demands may have been intolerable,
they were not linked to any racially discriminatory motives or
actions. Direct evidence of bias, standing alone, does not
necessarily prove that a discriminatory motive was responsible for
a particular employment action. Rather, the discrimination must be
shown to be "brought to the ground and visited upon an employee".
Price Waterhouse v. Hopkins, 490 U.S. 228, 109 S.Ct. 1775, 104
L.Ed.2d 268, 49 EPD 38,936 at 57,013-57,014 (1989).
The evidence shows that Borton's presence and the new
production demands stemmed from the Company's financial problems and
Borton's desire to supervise the seamstresses. Kondo and Lee
testified that the Company was having financial problems;
Complainant herself observed that the partners were borrowing money
to pay salaries. Borton had complained to Kondo about the
seamstresses' low production for months and Complainant admitted
that Borton's announcement of the new production demands was
directed at everyone in the sewing room, not just at Complainant.
Furthermore, Complainant was replaced by another caucasian woman
(Borton), who was paid by piece work, the very method Borton had
suggested to Kondo. Finally, the new production demands were made
about one month after Kondo called Complainant a "fucking haole
bitch" in the stairwell. Because of such time lapse, I also find no
causal connection between this act of racial harassment and
Complainant's quitting. See, Steele v. Offshore Shipbuilding Inc.,
867 F.2d 1311, 49 EPD 38,839 at 56,465-56,466 (11th Cir. 1989) (no
causal connection between sexual harassment and resignation when
plaintiffs quit two weeks after last harassing incident and
employer's reprimand of harasser).
I therefore conclude that Complainant was not constructively
discharged because of her race.


E. Liability
1. Respondent Company
In cases involving sexual and ancestry harassment, an
employer is liable for its acts 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), 12-
46-175(d). I therefore conclude that in race harassment cases, an
employer is similarly liable for its acts and those of its agents
and supervisory employees. Because Kondo was an supervisor and
agent of the Company during Complainant's employment, Respondent
Company is liable for Kondo's conduct towards Complainant.
2. Respondent Kondo
Kondo, as an agent of the Company, is an employer under
H.R.S.  378-1. Therefore, he is personally liable for racially
harassing Complainant.
I therefore determine that Respondents Company and Kondo are
liable for racially harassing Complainant.


F. Remedies
1. Back Pay
Because I conclude that Respondents did not fire or
constructively discharge Complainant because of her race, she is
not entitled to any back pay.
2. Compensatory Damages
The Executive Director requests that Respondents be
ordered to pay Complainant compensatory damages of $25,000 for the
emotional distress she suffered. Pursuant to H.R.S.  368-17, the
Commission has the authority to award compensatory damages for
emotional distress Complainant suffered as a result of Respondents'
racial harassment. The Executive Director must demonstrate the
extent and nature of the resultant injury and Respondents must
demonstrate any bar or mitigation to this remedy.
The evidence shows that Complainant was very offended, upset,
shocked and degraded by Kondo's use of racial slurs towards herself
and other employees, volunteers and caucasian people in general.
She sometimes cried after he made such remarks and felt "like a
piece of dirt" and a "non-person". Complainant began to dread
going to work and feared and avoided Kondo while at work. Her
distress was observed in part by other witnesses. Steve Davis, Jim
Davis, Hurwitz, Christianson and Rathburn testified that they saw
Complainant become upset or cry when she told them about the
stairwell incident and/or that she was called a "fucking haole
bitch". Considering these circumstances, I determine that $25,000
is appropriate compensation for Complainant's emotional distress.
3. Equitable Relief
The Executive Director also asks that the Commission order
Respondents to:

a) immediately cease and desist from discriminatory practices
against all present and future employees on the basis of
race;

b) develop and implement a written non-discrimination policy,
approved by the Commission and offer training programs on
this policy to its employees;

c) post notices, approved by the Commission in conspicuous
places on the Company premises;

d) publish the results of this contested case hearing in a
newspaper published in the state and having general
circulation in Honolulu, Hawaii.
Because Respondents used racial slurs at Complainant and other
employees/volunteers, I recommend that the Commission order
Respondents to immediately cease and desist from racially harassing
all present and future employees.
Respondent Company does not have a written non-discrimination
policy. I therefore recommend that the Commission order Respondent
Company to develop a written non-discrimination policy within thirty
(30) days of the effective date of the Commission's final decision
in this matter. I also recommend that the Commission direct the
Executive Director to submit is comments on Respondent Company's
policy within thirty (30) days of receiving a copy of this policy.
I also recommend that the Commission direct Respondent Company to
adopt in substance the Executive Director's comments and accordingly
modify its policy within fifteen (15) days of receiving the
Executive Director's comments.


I also recommend that the Commission direct Respondent Company
to conduct training for all employees on the non-discrimination
policy within thirty (30) days of finalizing such policy.
The Commission should also direct Respondent Company to post
notices provided by the Executive Director regarding its non-
discrimination policy in a conspicuous place on its premises.
The best way to publicize this decision and Respondent
Company's non-discrimination policy to the public is to require
Respondent Company to publish the attached Public Notice (Attachment
1) in a newspaper published in the State of Hawaii having a general
circulation in the City and County of Honolulu and the County of
Hawaii.
4. Other Relief
I decline to award the remaining relief requested by the
Executive Director. In terms of the deposition costs sought, H.R.S.
 368-17(a)(9) allows payment to a complainant of all or a portion
of the costs of maintaining the action before the Commission. In
the present case, Complainant did not intervene and maintain this
action before the Commission. The video taped deposition of
Complainant was conducted by the Executive Director, not by
Complainant. Therefore the Executive Director should bear such
costs. I also decline to award the Executive Director its costs in
this action, since the above statute only allows a complainant to
recover costs.RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents Company and Kondo
violated H.R.S.  378-3 by subjecting Complainant Davis to unwelcome
racial conduct which created an intimidating, hostile and offensive
work environment.
For the violation found above, I recommend that pursuant to
H.R.S.  368-17, the Commission should order:
1. Respondents Company and Kondo jointly and severally to pay
Complainant $25,000 as damages in compensation for her emotional
injuries.
2. Respondents to immediately cease and desist from racially
harassing all present and future employees.
3. Respondent Company to develop a written non-
discrimination policy within thirty (30) days of the effective date
of the Commission's final decision in this matter.
4. The Executive Director to submit its comments on
Respondent Company's policy within thirty (30) days of receiving a
copy of this policy.
5. Respondent Company to adopt in substance the Executive
Director's comments and accordingly modify its policy within fifteen
(15) days of receiving the Executive Director's comments.
6. Respondent Company to conduct training for all employees
on the non-discrimination policy within thirty (30) days of
finalizing such policy.

7. Respondent Company to post notices provided by the
Executive Director regarding its non-discrimination policy in a
conspicuous place on its premises.
8. Respondent Company to publish the attached Public Notice
(Attachment 1) in a newspaper published in the State of Hawaii
having a general circulation in the City and County of Honolulu and
the County of Hawaii.

Dated: Honolulu, Hawaii, _____________________________.

HAWAII CIVIL RIGHTS COMMISSION



/s/____________________________
LIVIA WANG
Hearings Examiner


Copies sent to:

Calleen J. Ching, Esq. HCRC Enforcement Attorney
Dana S. Ishibashi, Esq. Attorney for Respondents


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 Volcano Island Farms, Inc., doing business as
The Hawaiian Hemp Company and Dwight Kondo, its president and chief
operating officer, violated Hawaii Revised Statutes Chapter 378,
Employment Discrimination, when they racially harassed an employee.

(Linda C. Tseu on behalf of the Complaint filed by Diane Davis,
deceased, by her husband Steve Davis v. Volcano Island Farms, Inc.,
dba The Hawaiian Hemp Company and Dwight Kondo, Docket No.
94-003-E-R, [date of final decision] 1994).

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

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

2) Immediately cease and desist from racially harassing all
present and future employees.

3) Require The Hawaiian Hemp Company to develop a written
non-discrimination policy, the Executive Director of the
Hawaii Civil Rights Commission to comment on the non-
discrimination policy, require The Hawaiian Hemp Company
to modify its non-discrimination policy pursuant to the
Executive Director's comments and to conduct training
sessions for its employees on such policy.

4) Post notices provided by the Executive Director regarding
the non-discrimination policy in a conspicuous place on
company premises.


DATED: ______________________________

BY: ______________________________
Authorized Agent for
The Hawaiian Hemp Company


APPENDIX A


On March 16, 1994 the complaint in this matter was docketed for
administrative hearing and a Notice Of Docketing Of Complaint was
issued.
On March 30, 1994 the Executive Director filed its Scheduling
Conference Statement. Respondents filed their Scheduling Conference
Statement on April 8, 1994. A Scheduling Conference was held on
April 13, 1994 and the Scheduling Conference Order was issued April
19, 1994.
On July 1, 1994 the Executive Director filed a Motion For
Partial Summary Judgment to declare the inapplicability of res
judicata and collateral estoppel of a September 7, 1993 Employment
Security Appeals Office decision to this case and to dismiss
Respondents' counter claims for compensatory and punitive damages
from Complainant. On August 10, 1994 Respondents filed a Motion To
Dismiss Complaint on the grounds that: 1) the Executive Director
has no jurisdiction or standing to proceed on the complaint; 2) the
complaint does not survive Complainant's death; 3) Respondents have
been denied the right to confront and cross examine Complainant due
to her death; and 4) Complainant's race discrimination claims are
barred under the doctrines of res judicata and collateral estoppel
by the September 7, 1993 Employment Security Appeals Office
decision. A hearing on both motions was held on August 22, 1994 at
the Hawaii Civil Rights Commission conference room, 888 Mililani
Street, 2nd floor, Honolulu Hawaii before this Hearings Examiner.
In attendance were Calleen J. Ching, counsel for the Executive
Director and Dana S. Ishibashi, counsel for Respondents. On
September 6, 1994 the Hearings Examiner issued orders granting the
Executive Director's Motion For Partial Summary Judgement and
denying Respondents' Motion To Dismiss Complaint.
On August 12, 1994 notices of hearing and prehearing conference
were issued. The Executive Director filed its Prehearing Conference
Statement on August 26, 1994 and filed an Amended Prehearing
Conference Statement on September 1, 1994. Respondents filed their
Prehearing Conference Statement on August 26, 1994. On September 2,
1994 a prehearing conference was held and the Prehearing Conference
Order was issued that day.
On September 8, 1994 Respondents filed a Motion In Limine
seeking to exclude: a) any and all evidence alleging racial
discrimination that took place prior to February 17, 1993; b) any
and all evidence alleging racial discrimination against people other
than the Complainant; c) any and all evidence that is not the
result of direct and personal knowledge; and d) character evidence
that is prior to February 17, 1993 and/or immaterial or irrelevant.
On September 9, 1994 a hearing was held on Respondents' motion at
the Hawaii Civil Rights Commission conference room, 888 Mililani
Street, 2nd floor, Honolulu Hawaii before this Hearings Examiner.
In attendance were Callen J. Ching, counsel for the Executive
Director and Dana S. Ishibashi, counsel for Respondents. At the
hearing, the Hearings Examiner orally denied Respondents' motion as
to items (a) and (b) above. Regarding item (c) above, the Hearings
Examiner stated she would allow the parties to make such objections
during the hearing and rule on a case by case basis. Regarding item
(d) above, the Hearings Examiner allowed the parties to present
evidence of Complainant's and other witnesses' truthfulness, but
disallowed all other types of character evidence.
The contested case hearing on this matter was held on
September 12-16, 1994 at conference rooms C and B, State Department
of Labor and Industrial Relations Building, 75 Aupuni Street, Hilo,
Hawaii pursuant to H.R.S. Chapters 91 and 368. The Executive
Director was represented by Enforcement Attorney Calleen J. Ching.
Steve Davis, on behalf of Complainant Diane Davis was present during
portions of the hearing. Respondents were represented by Dana S.
Ishibashi and Respondent Kondo was present during the hearing.
The parties were granted leave to file proposed findings of
fact and conclusions of law and/or hearing briefs. On
October 10, 1994 the Executive Director and Respondents filed their
post-hearing memoranda/briefs.
On September 23, 1994 the Executive Director filed a Motion To
Re-Open Hearing For New Evidence based on certain events which
occurred after the September 16, 1994 hearing on this case. A
hearing on this motion was held on October 5, 1994 at the Hawaii
Civil Rights Commission conference room, 888 Mililani Street, 2nd
floor, Honolulu Hawaii before this Hearings Examiner. In attendance
were Callen J. Ching, counsel for the Executive Director and Dana S.
Ishibashi, counsel for Respondents. On October 14, 1994 the
Hearings Examiner issued an order denying the Executive Director's
motion.

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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, "Ex." followed by a number
refers to the Executive Director's exhibits; "Ex." followed by a
letter refers to Respondents' exhibits.

3. In her August 4, 1992 letter to Kondo, Complainant
states, ". . . I felt that if this is the way you choose to believe
of me and act toward me, and particularly letting Star be your
'messenger', then there was no point in staying with you any longer
. . . So I came downstairs and quit . . . It was never manipulation,
Dwight, it was genuine anger and genuine quitting. I want to work
in a happy, comfortable atmosphere, where if someone has something
to say, they say it to my face, and not confide unfounded suspicions
about me to other employees."

4. These are exact quotes from Complainant's testimony given
at her July 27, 1993 unemployment insurance hearing, about 1-1/2
months after her last day of work. (Ex. N at 26-27)

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

6. H.A.R.  12-46-175(b) states:
Ethnic slurs and other verbal or physical conduct relating
to an individual's ancestry constitute harassment when
this conduct:
(1) Has the purpose or effect of creating an
intimidating, hostile, or offensive working
environment;
(2) Has the purpose or effect of unreasonable
interfering with an individual's work performance;
or
(3) Otherwise adversely affects an individual's
employment opportunity.

7. See, In Re Santos / Hawaiian Flower Exports, Inc., supra.

8. This second prong of the unwelcomeness inquiry is
synonymous with the Harris requirement that the victim subjectively
perceive the work environment as hostile or abusive.

9. In Hawaii, the word "haole" is a non-derogatory term used
to denote a person of the caucasian race. However, the phrase
"fucking haole" which Kondo said in harsh tones when he was angry
with caucasian persons is a racial slur. Kondo admitted that the
term "bitch" is a derogatory term for women. Therefore the phrases
"haole bitch" and "fucking haole bitch" are racial and sexist slurs.