Davifin.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 ) FINAL DECISION AND ORDER
DIANE DAVIS, )
)
v. )
)
VOLCANO ISLAND FARMS, INC. )
dba THE HAWAIIAN HEMP )
COMPANY, and DWIGHT KONDO, )
)
Respondents. )
______________________________)
FINAL DECISION
This case involves the alleged use of racial slurs by an
employer against a female caucasian employee. Complainant Diane
Davis, a caucasian, was allegedly called "fucking haole", "fucking
haole bitch", and "haole bitch" by Respondent Dwight Kondo,
President of Respondent Volcano Farms, Inc. The case does not
involve the use of the term "haole" by itself. The Commission
hereby adopts and quotes in full footnote 9 of the Hearings
Examiner's Findings of Fact, Conclusions of Law and Recommended
Order:
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 [allegedly] said in
harsh tones when he was angry with caucasian persons is
a racial slur. Kondo admitted that "bitch" is a
derogatory term for women. Therefore the phrases "haole
bitch" and "fucking haole bitch" are racial and sexist
slurs.
At 12, fn. 9 (emphasis and bracketed word added). Respondent
Kondo's use of such phrases is alleged to constitute racial
harassment in violation of H.R.S. 378-2.
On January 10, 1995, at 12:00 o'clock noon, Commissioners
Amefil Agbayani, Daphne Barbee-Wooten, Josephine Epstein, Jack Law,
and Richard Port heard oral argument in the above-entitled case.
Present were Calleen J. Ching, Esq., representing the Executive
Director, Dana Ishibashi, Esq., representing the Respondents, and
Dwight Kondo, Respondent. Mr. Kondo ("Kondo") was allowed to
present argument to the Commission. By stipulation of the Parties,
Jack Davis, husband of Complainant Diane Davis ("Complainant"),
deceased, heard the arguments through a telephone conference call
but did not address the Commission.
The Hearings Examiner's Findings of Fact, Conclusions of Law
and Recommended Order ("Recommended Decision") was filed on November
2, 1994. Both parties filed timely written Exceptions to the
Recommended Decision and requested an opportunity to present oral
argument. The Executive Director's Exceptions included a Statement
in Support of portions of the Recommended Decision but did not
address Respondent's Exceptions. The parties did not file any
Statements in Support of the Decision[1] as authorized by the rules.
Hawaii Administrative Rules ("H.A.R.") 12-46-54.
I. PROCEDURAL HISTORY OF THE CASE
No exceptions were taken to the procedural history of the case
contained in Appendix A of the Recommended Decision. The Commission
hereby adopts Appendix A.
II. FINDINGS OF FACT
Respondents take exception to Finding of Fact No. 5 which found
that Complainant met Kondo "sometime around November 1991", and
Finding of Fact 6 which found that "Complainant began to work for
the Company in January 1992." Respondents contend that Complainant
met Kondo sometime after New Years 1992 and did not begin work until
February 1992.
The Decision of the Department of Labor and Industrial
Relations, Employment Security Appeals Office, Exhibit G at 1, found
that Complainant was employed from February 1992 to June 3, 1993.
There was no finding as to when Complainant met Kondo. The
Commission hereby adopts Finding of Fact No. 5. The first sentence
of Finding of Fact No. 6 is hereby modified to state that
"Complainant began to work for the Company in February 1992." The
remainder of Finding of Fact No. 6 is hereby adopted.
Respondents take exception to Finding of Fact No. 15 which
found that
On 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.
Respondents' Closing Brief, at 2, filed on October 10, 1994,
acknowledged that the words "fuck(ing)", "haole", and "fucking
haole" were part of Kondo's vocabulary and used. However, Kondo
denied using the words "bitch", "haole bitch", and "fucking haole
bitch". Kondo's girlfriend, Patricia Borton, testified that Kondo
said "haole", "fucking", and "fucking haoles" on company premises
but did not direct them towards any person in particular and denied
that he said "haole bitch". Id. at 17. However, other witnesses
testified to hearing Kondo make racial slurs on company premises.
Thomas Rathburn and Leslie Christensen testified that Kondo said
"fucking haole" on several occasions and that Kondo told Rathburn
that Christensen was a "fucking haole whore." Complainant testified
that she heard Kondo make racial statements such as "fucking haole",
"fucking haole bitch", and "haole bitch" on twelve occasions. Based
upon the record, the Commission finds it more likely than not that
Kondo 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.
The Commission hereby adopts Finding of Fact 15.
Respondents take exception to Finding of Fact No. 16 which
found that Kondo called Complainant a "fucking haole", "haole bitch"
or "fucking haole bitch" on four occasions. Respondents' basic
contention is that the incidents never happened, Complainant made
them up, and Kondo never made such statements to her. Essentially,
Respondents' exception is based upon the credibility of Complainant.
The Hearings Examiner had the opportunity to observe the demeanor of
the witnesses, hear their testimony, viewed the videotape of
Complainant's deposition, and read the depositions and exhibits. By
finding that there were four incidents where Kondo made racial slurs
towards Complainant, the Hearings Examiner has concluded that
Complainant was more credible than Kondo.
The Hawaiian Hemp Company was in financial difficulty at the
time of the stairwell incident. Complainant's persistence in
seeking medical coverage and having payroll taxes withheld and paid
by the employer angered Kondo who was personally financing the
company. Given the Commission's adoption of Finding of Fact No. 15
that Kondo made statements such as "fucking haole(s)", "haole
bitch", and "fucking haole bitch" when he was angry with or
disappointed in other caucasian persons, the Commission finds that
it is more likely than not that Kondo made similar statements to
Complainant. The Commission hereby adopts Finding of Fact No. 16.
The Commission hereby adopts the remaining Findings of Fact in
their entirety.
III. CONCLUSIONS OF LAW
A. JURISDICTION
Respondents do not take exception to the Commission's
jurisdiction over Volcano Island Farms, Inc., and Dwight Kondo,
individually. Therefore, the Commission adopts Conclusion of Law A,
1 and A, 2.
B. RACIAL HARASSMENT TEST
Respondents take exception to Conclusion of Law B which
establishes a three part test to determine if racial harassment has
taken place. The test was adapted from Commission rules on sexual
harassment, H.A.R. 12-46-109, and ancestry harassment, H.A.R.
12-46-175(b), Commission precedent, and case law. The test requires
proof 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; and
3) The conduct was sufficiently severe or pervasive to
alter the conditions of employment, such as having the
propose of 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.
The Commission concludes that the three part test to determine
racial harassment was properly adopted by the Hearings Examiner as
part of the adjudicatory process, and this test is hereby adopted by
the Commission. The Commission also adopts the objective standard
contained in the Recommended Decision to determine racial harassment
in this case--if a reasonable caucasian woman would consider such
conduct sufficiently severe and pervasive to alter the conditions of
employment.
C. WHETHER THE CONDUCT WAS UNWELCOME
Respondents contend that the Hearings Examiner did not
determine whether any of the "racial" comments were "solicited" or
"incited" by the Complainant's conduct. By concluding that
Respondents' had engaged in racial harassment of Complainant, the
Hearings Examiner has rejected the contention that Complainant
solicited or incited the racial slurs. The Commission agrees and
hereby concludes that Kondo's racial slurs were not solicited or
incited by Complainant.
D. WHETHER THE CONDUCT WAS SUFFICIENTLY SEVERE OR PERVASIVE
TO ALTER THE CONDITIONS OF EMPLOYMENT
Respondents contend that the "sufficiently severe or pervasive
standard" is vague and ambiguous. The test provides that the
sufficiently severe or pervasive standard may be met by showing that
the conduct either a) had the purpose and effect of creating an
intimidating, hostile, or offensive work environment; b)
unreasonably interfered with Complainant's work performance; or c)
otherwise adversely affected Complainant's work opportunities. If
anyone of these is established, the conduct will be deemed
sufficiently severe or pervasive to alter the conditions of work.
An employee is entitled to work in an environment free from
racial harassment. While a stray, isolated racial remark may not
constitute racial harassment because it is not sufficiently severe
or pervasive to alter the conditions of employment, a series of
racial slurs may create an abusive work environment and constitute
racial harassment. Each situation must be decided on a case by case
basis. A similar standard has been adopted in sexual harassment
cases, see, e.g. Harris v. Forklift Systems Inc., 114 S.Ct. 367, 126
L.Ed.2d 295 (1993), and the Commission concludes that the standard
is not vague or ambiguous.
Respondents also contend that no finding was made that
Respondents' conduct had the "purpose or effect" of creating an
intimidating, hostile or offensive work environment. The Hearings
Examiners concluded:
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 would consider Kondo's conduct sufficiently
severe and pervasive to create a hostile, intimidating and
offensive work environment.
Recommended Decision, at 14 (citation omitted). In essence, the
Hearings Examiner's conclusion is that Kondo's conduct had the
"effect" of creating such an environment.
Finding of Fact No. 17 provides that the racial comments upset
Complainant, made her cry, feel depressed, demoralized, and
degraded, and that she felt she was being treated "like a piece of
dirt" and a "non-person." Based upon the findings, the Commission
concludes that the racial slurs created a hostile, intimidating and
offensive work environment, that a reasonable caucasian woman would
consider Kondo's conduct sufficiently severe and pervasive to alter
the conditions of employment, and that such conduct constitutes a
violation of H.R.S. 378-2.
E. WHETHER COMPLAINANT WAS CONSTRUCTIVELY DISCHARGED
The Executive Director takes exception to the conclusion that
Complainant was not constructively discharged in June 3, 1993. The
Executive Director contends that under the totality of the
circumstances a reasonable person would feel forced to quit because
of intolerable and discriminatory working conditions. The Hearings
Examiner found that Complainant quit because of Borton's presence in
the sewing room and the new production demands which were not linked
to any racially discriminatory motives. Recommended Decision, at
16. The new production demands and Borton's presence were part of
a legitimate attempt to make the company profitable. Complainant
did not quit after the stairwell incident despite her fears of
Kondo. Although imposed shortly thereafter, the Commission could
not determine that the new production demands were part of a pattern
of racial harassment or a pretext to get Complainant to quit. The
Commission adopts the conclusion that Complainant was not
constructively discharged.
F. COMPENSATORY DAMAGES
The stairwell incident in May 1993 had the most serious impact
upon Complainant's emotional well being. After the stairwell
incident, she began to dread work and avoided Kondo. The amount of
time Complainant worked after the stairwell incident was between two
to four weeks.[2] She quit her job on June 3, 1993.
The record reflects that Complainant also suffered from serious
health problems related to a thyroid condition and ultimately the
cancer from which she died. Complainant lived near a geothermal
well and complained of illness and distress from the fumes. There
is no evidence that these medical conditions were caused by the
racial harassment at work. Without minimizing the offensiveness,
hostility, and intimidation resulting from Kondo's racial slurs, the
Commission believes that a significant portion of Complainant's
emotional distress was related to these other health conditions.
The Hearings Examiner determined that Complainant should be
awarded compensatory damages of $25,000 for her emotional distress
because she was very offended, upset, shocked, and felt degraded by
the racial slurs towards herself and others. Given the limited time
that Complainant worked after the stairwell incident and the
existence of other health factors, the Commission believes that a
reduction in compensatory damages is warranted. Based upon the
evidence, the Commission concludes that $2,500 is an appropriate
amount of compensatory damages for the emotional distress suffered
by Complainant.
G. OTHER RELIEF
The Commission hereby adopts the remaining portions of the
Recommended Decision including the conclusions regarding the joint
and several liability of both Respondents, the denial of back pay,
the denial of deposition costs, and the recommended equitable
relief. The recommended equitable relief includes an order that
Respondents 1) immediately cease and desist from racially harassing
all present and future employees; 2) develop and adopt a written
non-discrimination policy after receiving the comments of the
Executive Director; 3) conduct training for all employees after
finalizing the policy; 4) post notices about the policy in
conspicuous places on the premises; and 5) publicize this decision
and its non-discrimination policy through the publication of the
Public Notice, Attachment 1 to the Recommended Decision, in a
newspaper of general circulation in the City and County of Honolulu
and the County of Hawaii.
IV. ORDER
With the exception of the correction to Finding of Fact No. 6,
and the reduction in the amount of compensatory damages, the
Commission hereby adopts and incorporates the Proposed Findings of
Fact, Conclusions of Law and the Recommended Order as part of its
Final Decision and Order.
DATED: Honolulu, Hawaii
Amefil Agbayani, Chairperson
Daphne Barbee-Wooten, Commissioner
Josephine Epstein, Commissioner
Jack Law, Commissioner
Richard Port, Commissioner
Note: Pursuant to H.R.S. 91-14 any person aggrieved by a final
decision and order in a contested case is entitled to judicial
review by instituting a proceeding for judicial review within thirty
days after service of the certified copy of the final decision and
order.
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footnotes:
1. The purpose of the Statement in Support of the Decision
is to give a party the opportunity to provide reasons why the
Commission should adopt in whole or part the Recommended Decision.
Because they are to be filed fifteen days after the receipt of the
other party's Exceptions, Statements in Support provide an
opportunity to respond to the other party's Exceptions. By giving
reasons why the Commission should adopt that portion of the
Recommended Decision which their opponent takes exception to, a
Statement in Support sharpens the issues and assists the Commission
in decision making. The Commission urges all parties to file
Statements in Support to respond to Exceptions.
2. The Executive Director's Exceptions, at 10, refer to
Investigator's Intake Notes, Exhibit 16 at 1, indicating that the
stairwell incident happened on May 14, 1993.
