Piedsup.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAI'I


WILLIAM D. HOSHIJO, ) Docket No. 98-007-E-D
Executive Director, on behalf )
of the complaint filed by ) HEARINGS EXAMINER'S
BRUCE PIED, ) SUPPLEMENTAL FINDINGS OF
) FACT, CONCLUSIONS OF LAW
and ) AND RECOMMENDED ORDER
)
BRUCE PIED, )
)
Complainant-Intervenor, )
)
vs. )
)
ALOHA ISLANDAIR, INC., )
)
Respondent. )
_______________________________)
) Consolidated with
WILLIAM D. HOSHIJO, ) Docket No. 98-008-E-D-RET
Executive Director, on behalf )
of the complaint filed by )
BRUCE PIED, )
)
and )
)
BRUCE PIED, )
)
Complainant-Intervenor, )
)
vs. )
)
ALOHA ISLANDAIR, INC., )
)
Respondent. )
_______________________________)


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

On May 28, 1999 this Hearings Examiner issued her Findings of
Fact, Conclusions of Law and Recommended Order in this case. On
June 3, 1999 the Commission issued an order sua sponte remanding
this case to determine the specific amounts of back pay, front pay,
punitive damages and attorneys' fees and costs to be awarded to
Complainant. On June 30, 1999 Complainant filed his application for
statutory award of attorneys' fees. On September 3, 1999 the
Executive Director filed its memorandum on punitive damages and
attorneys' fees and costs and Complainant filed his memorandum
regarding calculation of front pay, back pay and punitive damages.
On September 10, 1999 Respondent filed its memorandum regarding
damage issues. A hearing on the calculation of back pay and front
pay was held on October 4, 1999. In attendance were: Enforcement
Attorney Cheryl Tipton on behalf of the Executive Director; David F.
Simons, Esq. on behalf of Complainant; and Richard M. Rand, Esq. on
behalf of Respondent. On November 17, 1999 Complainant and
Respondent filed a Stipulation Regarding Complainant's Bruce A.
Pied's Correct Salary and Benefits.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of these
proceedings, this Hearings Examiner hereby renders the following
supplemental findings of fact, conclusions of law and recommended
order.

II. FINDINGS OF FACT[1]

35. Complainant's income and the value of the benefits he
received from August 31, 1990 to October 31, 1999 amount to
$110,710. This amount is calculated as follows:
period earnings benefits

8-31-90 to 12-31-90 2,784 0
1-1-91 to 12-31-91 2,784 0
1-1-92 to 12-31-92 12,588 0
1-1-93 to 12-31-93 2,408 512
1-1-94 to 12-31-94 9,114 2,279
1-1-95 to 12-31-95 2,533 0
1-1-96 to 12-31-96 17,322 0
1-1-97 to 12-31-97 5,076 0
1-1-98 to 12-31-98 40,199 0
1-1-99 to 10-31-99 13,111 0


totals: 107,919 2,791


(Tr. at 195-196, 198-200; Exs. 55, 56, 57, 58, 59, 60, 61, 62;
Stipulation Regarding Complainant Bruce A. Pied's Correct Pay and
Benefits)
36. Because Complainant lives on the Big Island and has family
on the mainland, he would have used jump seat and flight pass
privileges given to employees of IslandAir or any national air line.
These jump seat and flight pass privileges have a value of $10,560
per year. (Tr. at 199)
37. Because Complainant lives in Hawaii, he would have sought
and advanced to a first officer position with a national air line
located in Hawaii, such as Aloha Air Lines. (Tr. at 34, 206)
38. The income Complainant would have earned and the value of
benefits he would have received if he were a first officer with
Respondent IslandAir from August 31, 1990 through August 31, 1995,
a captain with IslandAir from August 31, 1995 to August 31, 1998 and
a first officer with Aloha Airlines from August 31, 1998 to October
31, 1999 amount to $394,860. This amount is calculated as follows:
period earnings benefits

8-31-90 to 12-31-90 4,815 6,609
1-1-91 to 12-31-91 14,493 13,617
1-1-92 to 12-31-92 16,065 13,745
1-1-93 to 12-31-93 17,692 13,879
1-1-94 to 12-31-94 21,849 14,220
1-1-95 to 8-31-95 15,628 9,140
8-31-95 to 12-31-95 13,065 4,500
1-1-96 to 12-31-96 39,194 15,642
1-1-97 to 12-31-97 38,256 15,565
1-1-98 to 8-31-98 25,504 9,627
8-31-98 to 12-31-98 9,200 4,719*
1-1-99 to 10-31-99 42,213 15,618*

totals: 257,979 136,881


* does not include per diem
(Exs. 54, 91, NN)
39. Complainant's past losses in earnings and benefits are
therefore as follows:
period earnings benefits

8-31-90 to 12-31-90 2,031 6,609
1-1-91 to 12-31-91 11,709 13,617
1-1-92 to 12-31-92 3,477 13,745
1-1-93 to 12-31-93 15,284 13,367
1-1-94 to 12-31-94 12,735 11,941
1-1-95 to 12-31-95 26,160 13,640
1-1-96 to 12-31-96 21,872 15,642
1-1-97 to 12-31-97 33,180 15,565
1-1-98 to 12-31-98 -5,495 14,346
1-1-99 to 10-31-99 29,102 15,618

40. The amount Complainant would earn and the benefits he
would receive (not including per diem) if he were a first officer
with Aloha Air Lines from January 1, 2000 until he reaches age 60
are as follows:
period earnings benefits

11-1-99 to 12-31-99 8,442 3,124
1-1-00 to 12-31-00 61,262 20,074
1-1-01 to 12-31-01 71,700 20,894
1-1-02 to 12-31-02 81,690 21,493
1-1-03 to 12-31-03 87,743 21,857
1-1-04 to 12-31-04 88,713 21,953
1-1-05 to 12-31-05 89,311 22,951
1-1-06 to 12-31-06 89,939 21,988
1-1-07 to 12-31-07 90,571 22,026
1-1-08 to 12-31-08 91,234 22,104
1-1-99 to 12-31-99 92,053 22,115
1-1-10 to 12-31-10 92,053 22,115
1-1-11 to 12-31-11 92,053 22,115
1-1-12 to 12-31-12 92,053 22,153

(Ex. 1 to Stipulation Regarding Complainant Bruce A. Pied's Correct
Pay and Benefits)


III. CONCLUSIONS OF LAW[2]

A. Back Pay
Complainant's income and the value of the benefits he received
from August 31, 1990 through October 31, 1999 was $110,710. The
amount he would have earned as a first officer and captain with
IslandAir, and as a first officer with Aloha Air Lines and the value
of benefits he would have received during this same period would
have been $394.860. Thus, his pre-tax loss amount for this period
is $284,150. Federal and state income taxes on Complainant's
earnings and retirement benefit losses should be calculated based on
the yearly figures provided in FOF No. 39 [3] and should be deducted
from $284.150 to determine Complainant's total after tax loss
amount.
Prejudgment interest should be calculated based on
Complainant's after tax loss amounts for each year.
Federal and state income taxes should be calculated on the sum
of Complainant's total after tax loss amount and his prejudgment
interest amount.
I therefore determine that Respondent should be ordered to pay
Complainant back pay consisting of: a) Complainant's total after
tax loss amount; b) prejudgment interest based on Complainant's
after tax loss amounts for each year; and c) federal and state
income taxes on the sum of (a) and (b) above (Complainant's total
after tax loss amount and prejudgment interest amount).

B. Front Pay
In my May 28, 1999 recommended order, I concluded that because
Complainant would have become a first officer with a national
airline by August 31, 1998, Respondent should be ordered to pay
Complainant the difference between what he would have earned as a
first officer with a national airline and what he earns as a first
officer with IslandAir until Complainant obtains a first officer
position with a national airline or until he reaches age 60.
Because the end of this front pay period is speculative, it is not
possible to calculate a lump sum amount at this time.
I therefore determine that Respondent should be ordered to pay
Complainant a supplemental wage amounting to the difference between
what he would have earned and the value of the benefits he would
have received as a first officer with Aloha Air Lines, as detailed
in Finding of Fact No. 40 above, and what he earns and the value of
the benefits he receives as a first officer with IslandAir until
Complainant obtains a first officer position with a national airline
or until he reaches age 60. These supplemental amounts may be
paid on a monthly basis.

C. Punitive Damages
In determining the amount of punitive damages, this Commission
has considered the following factors: 1) the degree of malice and
reprehensibility of the respondent's conduct; 2) the respondent's
financial situation; and 3) the amount of punitive damages which
will have a deterrent effect on the respondent in light of his or
her financial situation. See, Tseu/Gould v. Simich et. al, Docket
No. 95-012-E-SH (October 29, 1995); Beerman v. Toro Mfg. Coo., 1
Haw. App. 111, 119 (1980); Kang v. Harrington, 59 Haw. 652, 663-664
(1978).
In light of Respondent IslandAir's deliberate attempt to cover
up and conceal its discriminatory practices, its financial
situation, particularly the past and most recent stockholder's
equity in the corporation (see, Ex. 2 attached to Complainant's
Memorandum Regarding Calculating of Front Pay, Back Pay and Punitive
Damages, placed under seal by protective order), and the amount of
punitive damages that will deter IslandAir and others from such
conduct in the future, I determine that Complainant should be
awarded punitive damages in the amount of $100,000.

D. Attorneys' Fees and Costs
Complainant seeks $22,225.10 in costs. However, Complainant
lists fees from Air Inc. ($1,500) and Michael Conroy ($750) without
explaining the purpose or need for these consultants, who did not
testify or submit documents during the hearing. I therefore decline
to award these costs. In addition, I will decrease the award for
copying costs by 75%. I fail to see why, in addition to the
exhibits made for the hearing, Complainant incurred copying costs
for 10,362 pages. I also feel that a rate beyond 10 cents per copy
is excessive. Complainant's costs are therefore reduced by $3,804.
Complainant should therefore be awarded costs of $18,421.
Complainant also seeks attorneys fees in the amount of
$114,213.91. I recommend that the fees sought be reduced by
$17,545.
Complainant seeks attorneys fees for 5.85 hours spent in
conciliation. H.R.S. sec. 368-17(a)(9) allows fees only for
maintaining an action before the Commission; this does not include
conciliation. I would also reduce Complainant's fees by the
following hours:

David Simons

2.7 hours for drafting Complainant's petition for declaratory
relief
1.0 hour for drafting motion to intervene
.6 hours for review and signing a stipulation of time for
filing a brief to the circuit court
3.2 hours for drafting petition for declaratory relief
(listed twice)
.7 hours for drafting a letter to the Hearings Examiner
12.0 hours for writing a memo in opposition to Respondent's
motion for summary judgment
8.7 hours for research/writing the post hearing brief
2.0 hours for writing a memo responding to Respondent's motion
to reopen hearing
1.7 hours for writing Complainant's supplemental post-hearing
brief
6.0 hours researching punitive damages issues


Matthew Viola

10.6 hours research/writing on Complainant's motion for summary
judgment


K. Bartlett Durand (paralegal)

64.4 hours attending hearings

Therefore, the fees to be awarded should be $92,100 x 4.166% general
excise tax = $95,936.88.
Because this amount is less than the amount of punitive damages
awarded, Complainant should not be awarded any attorneys' fees.
See, Lee v. Aiu, 85 Haw. 19, 35 (1997); Romero v. Hariri, 80 Haw.
450, 459-460 (1996) (attorneys' fees cannot be awarded in addition
to punitive damages; rather they must constitute the whole of the
punitive damages award or be accounted for as a portion of the total
punitive damage award).

IV. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that pursuant
to H.R.S. sec. 368-17, the Commission should order:
1. Respondent to pay Complainant back pay in the amount to
be calculated as set forth in COL III.A.
2. Respondent to pay Complainant a supplemental salary, the
difference between his salary and the value of his
benefits as a first officer with IslandAir and what he
would earn and the value of benefits he would receive as
a first officer with Aloha Air Lines until Complainant
obtains a first officer position with a national airline
or until he reaches age 60.
3. Respondent to pay Complainant punitive damages in the
amount of $100,000.
4. Respondent to pay Complainant his costs in the amount of
$18,421.


Dated: Honolulu, Hawaii, November 29, 1999.

HAWAI'I CIVIL RIGHTS COMMISSION





______________________________
LIVIA WANG
Hearings Examiner


Copies sent to:

Cheryl Tipton, Esq., HCRC Enforcement Attorney
David F. Simons, Esq., Attorney for Complainant-Intervenor
Richard M. Rand, Esq., Attorney for Respondent


----------------------------------

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

3. Some of the earnings and benefit figures used by
Complainant's expert witness, Dr. Thomas Loudat, in his reports are
incorrect. In addition, specific retirement benefit amounts for
each year were not provided. Therefore this Hearings Examiner is
unable to make the tax calculations on these amounts.