SMSmithdra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII



In the Matter of ) Docket No. 92-003-PA-R-S
)
SHIRLEY MAE SMITH ) HEARING EXAMINER'S
on behalf of herself and ) FINDINGS OF FACT,
JONATHAN BETTS, her minor son ) CONCLUSIONS OF LAW
) AND RECOMMENDED ORDER
Complainants )
)
- - - - - - - - - - - - - - - - )
)
MTL, INC.; OAHU TRANSIT )
SERVICES, INC.; DEPARTMENT )
OF TRANSPORTATION SERVICES, )
CITY AND COUNTY OF HONOLULU; )
HONOLULU PUBLIC TRANSIT )
AUTHORITY, CITY AND COUNTY )
OF HONOLULU, )
)
Respondents. )
________________________________)



HEARING 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 MTL, Inc.
(hereinafter, "MTL") and Oahu Transit Services, Inc. (hereinafter,
"OTS") violated H.R.S.  489-3 and 489-8 when their bus driver,
Jarvis Chong: a) used the racial slurs
"nigger" and "black thing" and the sexist slur, "mama", when
speaking to and about Complainant Smith; b) failed to stop at
Complainants' signaled bus stop; c) drove the bus in an erratic
manner; and d) pushed and threatened Complainants. The Executive
Director also alleges that Respondents failed to take immediate
and proper remedial action or reasonable steps to prevent further
discriminatory acts from occurring.
Respondents MTL/OTS admit Chong used the racial slur
"nigger" when radioing MTL Central Control and failed to stop at
Complainants' bus stop. However, they contend Complainant Smith
provoked Chong into taking these actions. Respondents deny the
other adverse incidents occurred. Respondents maintain they took
prompt and reasonable action to correct Chong's conduct in light
of the collective bargaining agreement and MTL's progressive
discipline policy. Respondents also assert that while Chong's one
time use of the term "nigger" is a denial of the full and equal
enjoyment of its bus services to Complainant Smith, the Executive
Director must show a habitual or customary practice of
discrimination in order to establish a violation of H.R.S.  489-
3.
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. From 1971 to 1991 the City and County of Honolulu
contracted with Respondent MTL to operate its bus system known as
"TheBus". MTL, a private corporation, provided all management,
supervisory and operational personnel for TheBus. It had the
exclusive control over the training, discipline, hiring and firing
of all its personnel, including its bus drivers. (Exs. 16; 17)[2]
2. On January 30, 1991 the City and County of Honolulu
contracted with Respondent OTS, another private corporation, to
operate TheBus. At this time, OTS knew of the complaint filed
by Complainant Shirley Mae Smith with the Hawaii Civil Rights
Commission on June 21, 1991. OTS replaced MTL on January 1, 1992
and assumed all the functions and responsibilities previously held
by MTL. OTS also used the same or substantially the same work
force, supervisory personnel, city and county buildings and
structures previously used by MTL. (Tr. vol. V at 31; Exs. 17;
27; Q; Prehearing Conference Order filed April 14, 1993 Stipulated
Facts Nos. 3, 4, 5, 6)

3. Pursuant to the above contracts, all operational costs,
including payments of claims filed against these corporations
arising out of their operation of TheBus, are subject to
reimbursement from the City and County of Honolulu. (Ex. 16
"Special Provisions" at 19; Ex. 17 at 4-5; Ex. Q at 9; Department
of Transportation Services/Honolulu Public Transit Authority, City
and County of Honolulu Scheduling Conference Statement filed
November 13, 1992)
4. Complainant Shirley Mae Smith is a Black African woman.
In 1987 she moved to Hawaii from the Washington D.C. area. From
fall 1990 to spring 1992 Complainant Smith was a full time student
at Chaminade University. (Ex. J at 11-12, 21; Ex. 31)
5. Complainant Jonathan Betts (hereinafter, "Jonathan") is
a Black African child and is the minor son of Complainant Smith.
On March 7, 1991 Jonathan was four years old and attended L.
Robert Allen Montessori Preschool. (Tr. vol. I at 56, 105; Ex.
J at 28, 39)
6. In the early afternoon of March 7, 1991 Complainants
boarded a city and county bus designated as Route 53 (Ala Moana
Shopping Center to Pacific Palisades) from a bus stop located on
Beretania and Punchbowl Streets. This bus was driven by Jarvis
Chong, who was then an employee of MTL. (Tr. vol. I at 19, vol.
IV at 11-12; Ex. 23 vol. 1 at 28; Ex. J at 39-40)

7. Chong had been a bus driver with MTL since July, 1986.
Prior to March 7, 1991 Chong would allow entering passengers who
could not show a bus pass the opportunity to settle themselves
down and show him their passes later. This was because MTL had
trained Chong and other bus drivers to give passengers "the
benefit of the doubt" by assuming that such passengers would
present their bus passes or pay their fares later. (Tr. vol. IV
at 65; Ex. 23 vol. I at 51-52)
8. At the time of boarding, Complainant Smith was carrying
Jonathan, who was sleeping, her backpack, Jonathan's backpack and
lunch box, and an umbrella. Chong observed that Complainants were
of Black/African descent. Complainant Smith did not have a free
hand to show Chong her bus pass when boarding the bus. Chong did
not ask Complainant Smith to show a bus pass or pay a fare as she
entered the bus. (Tr. vol. I at 20, vol. IV at 12, 59; Ex. 23
vol. 1 at 44, 84; Ex. J at 40-43)
9. After entering the bus, Complainant Smith sat down on
the window seat of the first forward facing bench on the door side
of the bus. Jonathan was sitting in her lap sleeping. She began
to put down her packages. A passenger behind Complainant Smith
then asked her questions about her braided hairstyle. (Tr. vol.
I at 21; Ex. J at 40-44)
10. After proceeding Ewa on Beretania Street at or near
Bishop Street, Chong turned around and asked Complainant Smith if
she had a bus pass. Complainant Smith told Chong that she would
show him her pass as soon as she caught her breath and after she
adjusted her packages. Chong believed that Complainant Smith had
a bus pass. (Tr. vol I at 21, vol. IV at 12; Exs. 9; 12; 13; 14;
Ex. 23 vol. 1 at 51-52; Ex. J at 44-45)
11. Complainant Smith then finished putting the two
backpacks on the floor and placed her umbrella behind the priority
seating bench in front of her. (Tr. vol. I at 23)
12. At or near River Street, Chong again asked Complainant
Smith to show her bus pass. Chong told Complainant Smith that
"old mamasans" who ride his bus have their passes ready and that
she too should have hers ready before the bus comes. Complainant
Smith replied that such elderly people do not carry so many
things, and that she would show him her pass when she was "ready".
Chong then told Complainant Smith to take her time because he was
going to let her off the bus when he was "ready". He also told
Complainant Smith not to take his bus again. (Tr. vol. I at 21-
23, vol IV at 12-13; Exs. 9; 12; 13; 14; Ex. 23 vol. 1 at 37; Ex.
J at 46-49)
13. Somewhere near Aala Park, approximately 3-4 stops after
entering the bus, Complainant Smith stated, "Bus driver, here's
my pass" and showed Chong her bus pass from her seat. Chong saw
Complainant Smith's bus pass. From this point neither Chong nor
Complainants said anything to each other until after the bus
passed the Waimalu Zippy's bus stop. (Tr. vol. I at 23, vol. IV
at 42-43; Exs. 9; 10; 14; Ex. 23 vol. 1 at 59, 63-64; Ex. J at 49-
51)
14. The bus then proceeded on to the H-1 freeway, off at
the Red Hill exit, back on to H-1 and then off at the Halawa exit
on to Kamehameha Highway in the Aiea/Pearl City area. (Tr. vol.
IV at 14)
15. Prior to reaching the bus stop near Waimalu Zippy's,
Complainant Smith rang for this stop. She put on her backpack,
stood up holding Jonathan and their things in her right arm and
walked to the front of the bus. Complainant Smith then stood
behind Chong's right side, holding a vertical hand rail located
on the partition behind the driver's seat with her left hand. Tr.
vol. I at 24-25, 165; Ex. J at 52-53)
16. Chong saw Complainant Smith ring for her stop. He
slowed the bus. Complainant Smith walked towards the front exit
door. Chong then accelerated and passed Complainant's stop.
There were no traffic or safety reasons for Chong to pass this
stop. (Tr. vol. I at 24-25, vol. IV at 43, 60-62; Ex. 23 vol. 1
at 64-67; Ex. J at 53)
17. Over the next 2-3 minutes, the following events
occurred:
a) Chong's acceleration past Complainants' bus stop caused
Complainant Smith to lose her balance and fall backwards.
Complainant Smith grabbed the handrail located near the fare box
with her left hand; her back and right side fell against Chong's
right shoulder and upper arm area. (Tr. vol. I at 25, 166, vol.
IV at 66-67; Ex. 23 vol. 1 at 67; Ex. J at 53-54)
b) Chong then pushed Complainants off of himself and
towards the front exit door. Complainant Smith fell forward,
hitting her upper right arm against the vertical handrail located
between the front exit door and first priority seat. (Tr. vol.
I at 25, vol. IV at 66-67; Ex. 14; Ex. J at 54-55)
c) Complainant Smith continued to stand near the front
exit door. This was because she saw a woman waiting at the next
bus stop and thought Chong would stop to pick up the woman and
that she and Jonathan could then exit. Chong slowed down and then
accelerated passed this stop. (Tr. vol. I at 25-27, vol. IV at
66-67; Ex. J at 55)
d) Complainant Smith told Chong that if he stopped, she
would get off the bus. Chong stated to the other passengers, "You
folks see this nigger standing up here? If we get into an
accident, it's going to be her fault." Complainant Smith then
told the other passengers, "You see this idiot driving the bus?
He's trying to kill all of you because of me." Chong then pointed
to a sign informing passengers to remain behind the yellow standee
line and warned Complainant Smith to sit down or she and her son
would be the first to go through the front window. (Tr. vol. I
at 26-27, vol. IV at 66-67; Ex. J at 58-60)
e) Complainant Smith then became afraid for her life and
her son's life. She tried to sit down but could not regain her
balance to get to a seat. (Ex. J at 57-58)
f) Chong then "hit the brakes" and stopped the bus on
Kamehameha Highway. He called MTL Central Control on his radio
and stated, "I get one nigger here giving me a bad time." Chong
then described the location of his bus. The radio dispatcher
told him to meet a road supervisor at the Waimano Home Road bus
stop near Foodland Supermarket. (Tr. vol. I at 29-30, vol. IV at
15-16, 66-67; Ex. 14; Ex. 23 vol. 1 at 83, 89; Ex. J at 61)
18. Over the next 7-8 minutes the following events
occurred:
a) After Chong stopped the bus and radioed MTL Central
Control, Complainant Smith sat down in the priority seating area
on the door side of the bus. Chong told Complainant Smith that
when a bus driver calls central control "it's serious business".
Complainant Smith stated that she was glad Chong called central
control because if he hadn't, she would have called them herself.
(Tr. vol. I at 30-31, vol. IV at 67; Ex. J at 61-62)
b) Chong then offered Complainant Smith a quarter to make
the telephone call. Complainant Smith replied she didn't need his
quarter and that on his [Chong's] salary he probably needed it
more than she did. Chong then said, "Don't talk to me about how
much money I make, mama". Complainant Smith said, "Mama?". Chong
replied, "Yeah, you Black thing". (Tr. vol. I at 31, vol. IV at
67; Ex. 14; Ex. J at 62)
c) Chong's words and actions shocked Complainant Smith and
made her feel angry and hurt. She also felt disgraced by Chong
in front of the other passengers. She began to lecture Chong
about the derogatory meaning of the words "mama", "Black thing"
and "nigger". Chong shook his head and laughed. (Tr. vol. I at
31-32, vol. II at 133-134, vol. IV at 67; Ex. 5a; Ex. J at 62)
d) Chong then stopped the bus at the Waimalu Foodland stop
and opened the front door. Jonathan woke up and asked his mother
what happened. Complainant Smith told Jonathan that she and the
bus driver were having an argument. (Tr. vol. I at 32, vol. IV
at 67)
e) MTL Road Supervisor Michael Hooper met the bus at the
Waimalu Foodland stop. As a road supervisor, Hooper was
responsible for investigating incidents which occurred on City and
County buses and for filing reports about such incidents. Hooper
boarded the bus, standing on the first step. Chong said to
Hooper, "Take this nigger lady off my bus". Hooper asked Chong
to step off the bus and explain the situation to him. Chong got
off the bus and told Hooper that Complainant Smith was the "nigger
giving [him] a bad time". Hooper took notes of Chong's
statements. (Tr. vol. IV at 67; Exs. 12; 14; Ex. 26 at 18-19, 34-
35; Ex. 41 at 14; Ex. J at 63)
f) At this time, Chong knew that the term "nigger" was
racist and derogatory and that the term "mama" was sexist and
derogatory. (Ex. 23 vol. 1 at 87-88)

19. After Chong spoke to Hooper, Hooper told Chong to get
back onto the bus and continue with the route. Hooper then
boarded the bus and asked Complainants to step off the bus and
speak to him. (Tr. vol. IV at 17-18; Ex. 12; Ex. 26 at 21)
20. Despite MTL guidelines and training which require bus
operators and road supervisors to take witness names and
statements whenever an unusual incident of any kind occurs on a
bus, neither Chong nor Hooper took down any witness names or
statements. (Tr. vol. V p. 21, 68-69; Ex. 23 vol. 1 at 91-92; Ex.
26 at 36-37; Ex. 41 at 19)
21. After exiting the bus, Complainant Smith said to
Hooper, "Did you hear what the operator said? ...I do not condone
it." Complainant Smith then told Hooper what happened on the bus
and stated that she wanted to file a complaint with MTL. Hooper
took notes of her statements. Hooper asked Complainant Smith if
she also wanted to file a complaint with the Honolulu Police
Department. Complainant Smith stated that she did. (Tr. vol. I
at 34-35; Ex. 26 at 21-22, 27-31; Ex. J at 66)
22. Hooper contacted MTL Central Control and instructed
them to call the Honolulu Police Department (hereinafter, "HPD").
MTL Central Control called the HPD and then directed Chong to stop
at the bus stop across from Waimalu Foodland on his return trip
from the Pacific Palisades terminus to meet with an HPD officer.
(Tr. vol. IV at 18; Ex. 12)
23. At around 2:25 p.m. HPD Officer Paul Akana arrived at
the Waimalu Foodland bus stop. Officer Akana briefly spoke with
Hooper about the situation. He then took a statement from
Complainant Smith, who was at this time upset, excited and
agitated. (Tr. vol. I at 35, vol. III at 123-127; Ex. 9)
24. Officer Akana then crossed the street and took Chong's
statement. Chong denied calling Complainant Smith a "nigger" but
admitted that he passed Complainants' bus stop. (Tr. vol. III at
127-129, 132-133, 139; Ex. 9)
25. Officer Akana told Chong that he could be charged with
kidnapping because he intentionally passed Complainants' stop.
Chong was shocked and offered to apologize to Complainant Smith
only for passing her stop. (Tr. vol. III at 128-130, 139, vol.
IV at 18; Ex. 23 vol. 1 at 102)
26. Officer Akana crossed the street and told Complainant
Smith that Chong was willing to "apologize" to her. Complainant
Smith refused to accept Chong's apology and stated that Chong
could "make his apology in court". (Tr. vol. I at 35, vol. III
at 129-130, 139; Ex. J at 67)
27. Officer Akana then told Chong that Complainant Smith
would not accept his apology. Chong got back on his bus and
continued on his return route back to Ala Moana. (Ex. 26 at 41-
42)
28. Officer Akana instructed Hooper to take Complainants
home. Hooper told Complainants to board the next bus back to
their stop. Complainants boarded the next route 53 bus back to
Waimalu Zippy's. (Tr. vol. I at 36, vol. III at 137; Ex. J at 67-
68)
29. After arriving home, Complainant Smith telephoned the
MTL Customer and Public Relations division to make a complaint.
While she was speaking to MTL, Officer Akana telephoned on her
call waiting system. Complainant Smith took Officer Akana's call.
When she tried to telephone MTL again, their Customer and Public
Relations office was closed. (Tr. vol. I at 38; Ex. J at 68)
30. Complainant Smith then telephoned her best friend,
Juana Kerr, and attempted to explain to Kerr what had happened on
the bus. Because Complainant Smith became emotional, Kerr told
Complainant Smith that she and her two daughters would come over
and bring dinner. Shortly afterwards, Kerr and her daughters
arrived at the Complainants' home. Kerr fed Jonathan and her
children and put them to sleep. Complainant Smith was so upset
she was unable to eat. She then told Kerr about the bus incident
and started crying. She felt hurt and angry and was scared that
Chong would find out where she lived and would come and harm them.
(Tr. vol I at 38-42)
31. After Kerr and her daughters left, Complainant Smith
kept crying and had a difficult time falling asleep. She kept
thinking about what Chong had said and done to her, and other ways
she could have responded. (Tr. vol I at 42-44)
32. The next day, March 8, 1991, Complainant Smith
telephoned the MTL Customer and Public Relations division and
lodged a complaint. After speaking to Complainant Smith, the
Customer and Public Relations staff typed up a complaint report.
The complaint report alleges, inter alia, that Chong told
Complainant Smith "When I get to your stop, I'm not stopping,
And, don't you ever catch my bus ever!"; that Chong slowed and
accelerated passed Complainant Smith's bus stop and the next stop;
that Chong drove erratically by jamming on the gas and brakes;
that Chong shoved Complainant Smith; and that Chong called
Complainant Smith "nigger" and "mama". (Ex. 14; Ex. J at 68-69)
33. That same day, Complainant Smith's right bicep and
shoulder hurt so she went to the emergency clinic at Pali Momi
Hospital for treatment. She told Dr. William Baker, the emergency
physician on duty, that her arm had been injured the prior day
when she was pushed into a pole while riding a bus. Dr. Baker
diagnosed Complainant Smith as having a right bicep strain. She
was given a prescription for Anaprox and was told to see her
regular physician if her condition did not improve. (Tr. vol. I
at 44-46; Ex. 8)
34. On March 8, 1991 Chong informed Amos McMillan,
Superintendent of MTL's Transportation Department, Halawa
division, that he had an incident with Complainants the prior day.
As a superintendent, McMillan was responsible for interviewing bus
drivers about complaints made against them and for disciplining
drivers who violated company policies and rules. McMillan
conducted a preliminary investigation of the incident. He
instructed Chong to file an incident report, which Chong did that
day. The incident report does not state that Chong used racial
or sexist slurs in speaking to or about Complainant Smith. Later
that day, McMillan reviewed the incident report with Chong, told
Chong that he had not followed proper procedures in waiting for
Complainant Smith to show her pass and in passing Complainants'
stop. McMillan also informed Chong that he [Chong] could receive
disciplinary action for these errors. (Ex. 25 at 50-56; Ex. 13;
Ex. A at 89)
35. Complainant Smith saw her regular physician, Dr.
Michael Inada, on March 14, 1991. At this time Complainant
Smith's bicep was still tender and she experienced pain when
flexing her elbow. (Tr. vol. I at 46-47; Exs. 6, 7)
36. Complainant Smith continued to feel very hurt, upset,
humiliated and angry about Chong's words and behavior throughout
the week following the incident. She thought and cried about the
incident at least twice a day. She felt angry and ashamed that
she hadn't said or done more at the time of the incident. She had
difficulty eating and sleeping at night. She didn't want to ride
a city bus again because she didn't want to see Chong and was
afraid that Chong or other bus drivers would somehow retaliate
against her and Jonathan. (Tr. vol. I at 47-52, vol. II at 133-
134)
37. About a week after the incident, Complainant Smith told
another friend, Aurora Johnson, about the incident. Johnson told
Complainant Smith that Chong might belong to a "gang" who may come
after Complainants and hurt them. Johnson also suggested that she
[Johnson] and her boyfriend could find some people to go and hurt
Chong first. Upon hearing this, Complainant Smith became more
fearful that Chong, his family, "gang" or other bus drivers would
somehow retaliate against her and Jonathan. However, she told
Johnson that she didn't want Johnson to enlist anyone to hurt
Chong. (Tr. vol. I at 155-160; vol. II at 11-12)
38. Both MTL and OTS had General Discipline Codes for their
employees containing three classes of offenses. A class III
offense is the most serious and requires 10-30 days suspension as
a minimum disciplinary action. A class II offense is less serious
and requires a written warning as a minimum disciplinary action.
In cases where a manager believes the disciplinary action should
be waived, the manager must inform the employee that the
disciplinary action is not final. Furthermore, the manager must
submit the reasons for noncompliance to the department head for
review of the merits of the case and to render the final decision.
(Tr. vol. V at 63; Ex. 35N)

39. Both MTL and OTS management considered the use of a
racist slur by a bus driver, even if provoked, to be prohibited
under their General Discipline Code and to constitute a class III
offense. (Tr. vol. V at 82-84; Ex. 25 at 67-68)
40. On March 19, 1991 McMillan's office received a copy of
Complainant Smith's March 8, 1991 complaint report from the MTL
Customer and Public Relations division. (Ex. 27, answer to
interrogatory no. 27)
41. On April 18, 1991 Manuel Rallita, an MTL Assistant
Superintendent of Transportation who was filling in for McMillan
(who was on vacation), interviewed Chong about the March 7, 1991
incident. Rallita reviewed Complainant Smith's March 8, 1991
complaint report with Chong. Chong admitted to Rallita that he
had referred to Complainant Smith as a "nigger" and had made
certain other remarks. Rallita disciplined Chong by counselling
him to check his tone when speaking to passengers and by reminding
Chong that MTL does not condone rude and sarcastic behavior. This
disciplinary action was approved by Kenneth Hong, MTL Vice
President of Transportation. (Ex. 10; Ex. 24 at 20-32)
42. On April 10, 1991 Betty Krauss, Manager of the MTL
Customer and Public Relations division, wrote in response to
Complainant Smith's complaint report. The letter states that MTL
does not condone the actions of the operator as described in the
complaint report; that MTL is genuinely concerned when it hears
of operators who express "anything less than the true 'Aloha
Spirit' in dealing with the public"; that a thorough investigation
was conducted; and that disciplinary action was taken. This
letter was written and mailed to Complainant Smith prior to
Rallita's investigation of the incident and disciplining of Chong.
(Ex. 11)
43. On June 21, 1991 Complainant Smith filed a complaint
with the Hawaii Civil Rights Commission. Prior to filing this
complaint, Complainant Smith continued to feel hurt, humiliated
and upset about the incident. She would also periodically cry
over it. After filing the complainant, her fear of Chong subsided
and she resumed her life as a full time student. (Tr. vol I at
52-54, vol. II at 12)
44. Sometime in 1992, Complainant Smith was informed that
a hearing for this case had been scheduled for April, 1992.
Complainant Smith again became fearful that Chong might lose his
job and retaliate physically against her and Jonathan. (Tr. vol.
II at 12-13)
45. In August, 1992 Complainants moved away from Oahu
because Complainant Smith feared retaliation from Chong and
because she planned to marry Ernest Bonhomme, a person she met
prior to moving to Hawaii. Complainant Smith and Bonhomme were
married in August, 1992 in Maryland. In September, Complainants
and Bonhomme moved to Coral Springs, Florida, where they presently
reside. (Tr. vol. I at 66-67, 128-132)
46. By letter dated December 9, 1992 Karl K. Sakamoto,
Enforcement Attorney for the Hawaii Civil Rights Commission,
requested Dr. Jack N. Singer conduct a psychological evaluation
of Complainant Smith and diagnose any mental or emotional distress
she experienced as a result of the March 7, 1991 incident. Dr.
Singer is a licensed psychologist who practices
in Coral Springs, Florida. (Tr. vol. II at 24, 48; Exs. 5e,
I-1)
47. Complainant Smith was examined by Dr. Singer on
December 29, 1992 and January 19, 1993. During these two
examinations, Dr. Singer interviewed Complainant Smith about her
personal history and the March 7, 1991 bus incident. He also
administered the Burns Anxiety Inventory, Burns Depression Check
List and Beck Examination For Depression. Dr. Singer also
conducted several follow up interviews with Complainant Smith up
through May 18, 1993 (the day before he testified at this hearing)
and reviewed several depositions and prehearing pleadings. (Tr.
vol. II at 48-50, 87-88, 99-100)
48. Based on information obtained from the above
interviews, test results and prehearing documents, Dr. Singer
diagnosed Complainant Smith as having post traumatic stress
disorder mild in intensity. The diagnostic criteria for post
traumatic stress disorder used by Dr. Singer is contained in the
Diagnostic and Statistical Manual of Mental Disorders, Third
Edition - Revised (DSM-III-R) published in 1987 by the American
Psychiatric Association. Page 247 of the DSM-III-R states that
the essential feature of post traumatic stress disorder (PTSD) 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. vol. II at 82, 101- 133; Exs. 5f; 5g)
49. Dr. Singer's diagnosis of Complainant Smith, however,
is based on the occurrence of two events and the resulting
symptoms caused by one or both of these two events: 1) the March
7, 1991 incidents on the bus with Chong; and 2) the fear that
Chong would retaliate against her and Jonathan caused by
statements made by Aurora Johnson as well as cultural stereotypes
about people in Hawaii that Complainant Smith held. (Tr. vol. II
at 84, 101-110, 128-133)
50. Dr. Singer recommends that if Complainant Smith plans
to move back to Hawaii, her distress from the incident and her
fears about retaliation should be treated through a series of
desensitization sessions. These sessions should include meetings
with Chong in which he admits to what occurred, agrees to attend
a sensitization program, agrees not to repeat the adverse behavior
and assures Complainant Smith that he does not harbor any ill
feelings towards her. (Tr. vol. II at 136-138; Ex. 5b)


III. CONCLUSIONS OF LAW[3]

A. Jurisdiction
Respondents MTL/OTS admit that they are places of public
accommodation as defined in H.R.S.  489-2. See, Prehearing
Conference Order filed April 14, 1993 Stipulated Fact Nos. 7, 8;
Respondents' Proposed Findings Of Fact #1 filed June 8, 1993.
Respondents MTL/OTS are therefore subject to the provisions of
H.R.S. Chapter 489.

B. Discrimination in Public Accommodations
H.R.S.  489-3 prohibits "[u]nfair discriminatory practices
which deny, or attempt to deny, a person the full and equal
enjoyment of the goods, services, facilities, privileges, and
accommodations of a place of public accommodation on the basis of
race, sex, color, religion, ancestry or disability..."
Respondents argue that even if the alleged events of March
7, 1991 occurred, there is no violation of  489-3 because such
events were an isolated instance of discrimination. They contend
that the words "unfair discriminatory practices" as found in 
489-3 prohibit only recurring, habitual or customary
discriminatory acts by a place of public accommodation.
Respondents MTL and OTS' Post Hearing Brief at 10-15.
I disagree.
The fundamental starting point for interpreting a statute is
the language of the statute itself. State v. Briones, 71 Haw. 86,
92 (1989); State v. Eline, 70 Haw. 597 (1989). However, a court
or agency's primary duty in interpreting a statute is to ascertain
and give effect to the legislature's intent and to implement that
intent to the fullest degree. Briones, supra, State v. Tupuola,
68 Haw. 276 (1985). In addition, statutory provisions must be
construed in a manner consistent with the purposes of the statute
and not in a manner which produces an absurd result. State v.
Burgo, 71 Haw. 198, 202 (1990).
Based on the language and legislative history of H.R.S.
Chapter 489, I conclude that  489-3 prohibits single isolated
instances of discriminatory conduct by a public accommodation.
H.R.S.  489-1 states:
a) The purpose of this chapter is protect the
interests, rights, and privileges of all
persons within the State with regard to

access and use of public accommodations by
prohibiting unfair discrimination.

b) This chapter shall be liberally construed to
further the purposes stated in subsection
(a).

(Emphasis added.) The conference committee report on the passage
of this chapter also states in relevant part:
Hawaii is well known for its cultural diversity and the
uniqueness of its people. In keeping with the Aloha
Spirit, this bill clearly proclaims the State's policy
of prohibiting all unfair discrimination in public
accommodations.

Conf. Com. Rep. 50-86, 1986 Senate Journal at 746-747 (emphasis
added). Thus, the purpose of Chapter 489 is to prohibit all
instances of unfair discrimination by public accommodations on the
basis of race, sex, color, religion, ancestry or disability, and
not only recurring practices of discrimination. Furthermore,
Chapter 489 was enacted to provide the same protections found in
Title II of the federal Civil Rights Act of 1964, allowing people
in Hawaii to seek redress within the state, rather than though the
Office of Civil Rights in Washington D.C. SCRep. 233-86, 1986
House Journal at 1087. Title II [4] prohibits single isolated
incidents of discrimination by public accommodations. Finally,
 489-8 requires the assessment of fines for each violation of the
chapter and states that each day of violation shall be considered
a separate violation. Such penalties could not be assessed if
only recurring acts of discrimination violate the statute.
The above interpretation of  489-3 also recognizes the
fundamental difference in the singular nature of contact between
a business and its customer, and the on-going relationship between
employer and its employee. Thus, while a single isolated incident
of racial harassment may amount to a violation of Chapter 489, a
similarly isolated incident may be insufficient to establish
employment discrimination under Chapter 378. See, King v.
Greyhound Lines, Inc., 656 P.2d 349, 351 at n. 6 (Or. App. 1982).

Per Se Violation of H.R.S.  489-3
A per se violation of H.R.S.  489-3 is established if the
Executive Director shows, by a preponderance of the evidence, that
an owner or employee of a public accommodation made a racial or
sexist insult to a customer or about a customer in the course of
serving that customer. Any customer who must suffer racial or
sexist slurs in the course of being served is clearly being denied
the full and equal enjoyment of that public accommodation's goods,
services, facilities, privileges, advantages and accommodations
on the basis of race.[5] King, supra, at 351 (racial insults,
including the use of the terms "boy" and "nigger" by bus company's
ticket agent to Black customer when giving him a refund was a
distinction, discrimination or restriction on account of race).
In the present case, the Executive Director has shown by a
preponderance of the evidence that Chong used the racial slurs
"nigger" and "Black thing" and the sexist slur "mama" when
speaking to or about Complainant Smith. Chong's use of such terms
denied Complainant Smith the full and equal enjoyment of the City
and County's bus services on the basis of her race and sex and
constitutes a per se violation of H.R.S.  489-3.
Respondents admit that Chong used the term "nigger" once
when he radioed MTL Central Control but contend that Chong did not
say the other slurs. They argue that Complainant Smith's
testimony is not credible because it became exaggerated and
embellished over time.
I find Complainant Smith's testimony credible because
portions of it were corroborated by other witnesses and because
it is consistent with reports she made immediately after the
incident. Road supervisor Hooper stated that upon entering the
bus, Chong said to him, "Take this nigger lady off my bus".
Hooper also stated that after stepping off the bus, Chong
identified Complainant Smith as the "nigger giving [him] a bad
time". (Ex. 26 at 18-19, 34-35) Hooper's report, made a few
minutes after the incident, also notes that Complainant Smith
alleged that Chong called her a "nigger" in speaking to other
passengers. (Ex. 12) Officer Akana's report contains similar
allegations. (Ex. 9) The complaint report taken by MTL Customer
and Public Relations division on March 8, 1991 states that
Complainant Smith alleged that Chong called her "mama" after
pushing her. (Ex. 14)
In contrast, I find Chong's testimony denying the use of
these terms not credible. This is because Chong's account of what
occurred conflicts with the testimony of others and has been
inconsistent. In his deposition and at the hearing, Chong
admitted that he referred to Complainant Smith once as a "nigger"
when he radioed Central Control. (Tr. vol. IV at 16, 49; Ex. 23
vol. 1 at 83) However, when speaking to Officer Akana on the day
of the incident, Chong denied ever saying the word "nigger". (Tr.
vol. III at 127-129, 132-133, Ex. 9) He continued to conceal his
use of the term when he failed to mention it in the incident
report filed March 8, 1991 with Superintendent McMillan. (Ex. 13)
In his deposition and at the hearing, Chong denied using the term
"nigger" when speaking to Hooper. (Tr. vol. IV at 49; Ex. 23 vol.
1 at 95) However, Hooper remembered and noted Chong's use of the
term in referring
to Complainant Smith at least twice. (Ex. 12, 26 at 18-19, 34-35)

Direct Evidence Of Other Discriminatory Acts
Discrimination under Chapter 489 may also be established by
direct evidence of discriminatory motive. Racial or sexist
insults made by an owner or employee of a place of public
accommodation at or near the time such owner or employee takes an
adverse action against a customer can constitute direct evidence
of intent to discriminate. See, Jones v. City of Boston, 738
F.Supp 604, 605-606 (D. Mass. 1990) (bartender's use of the word
"nigger" in referring to a customer just prior to ejecting that
customer from the premises shows an intent to discriminate on the
basis of race); see also, Miles v. M.N.C. Corp., 750 F.2d 867, 36
EPD 34,953 at 36,267-36,270 (11th Cir. 1985) (racial slur made by
plant superintendent who refused to rehire Black plaintiff was
direct evidence of discrimination); EEOC v. Alton Packaging Corp.,
901 F.2d 920, 53 EPD 39,932 at 62,558 (11th Cir. 1990) (manager's
statement that if it were his company, "he wouldn't hire any black
people" was direct evidence of discrimination in




his failure to promote Black plaintiff); Senello v. Reserve Life
Insurance Co., 872 F.2d 393, 50 EPD 38,977 at 57,228 (11th Cir.
1989) (negative statements about women in management and that
plaintiff woman manager hired too many women constituted direct
evidence of discriminatory motive for terminating plaintiff).
Once the Executive Director presents direct evidence of
discriminatory intent, the burden of proof shifts to the
respondent to either: 1) rebut such evidence by proving that it
is not true; 2) establish an affirmative defense; or
3) limit, but not avoid, liability by showing mixed motives for
the adverse action (i.e., proving by a preponderance of the
evidence that it would have acted as it did without regard to the
complainant's protected status). See, Vaughn v. Edel, 918 F.2d
517, 55 EPD 40,455 at 65,237 (5th Cir. 1990); EEOC v. Alton
Packaging Corp., supra; 42 U.S.C. 2000e(g)(2)(B) (Civil Rights
Act of 1991  107(b).
The Executive Director has established, through direct
evidence of discriminatory intent, that Chong committed other
discriminatory acts against Complainants in violation of
 489-3. Chong's adverse actions in passing Complainants' stop,
referring to Complainant Smith as "nigger" when speaking on the
radio and to other passengers, driving in an erratic manner,
pushing her, calling her "mama" and "Black thing" and referring
to her as a "nigger" two more times to Hooper all occurred within
a span of about 10 minutes. The racial slurs on their face
demonstrate Chong's racial bias against Complainants. The sexist
slur demonstrates Chong's sex bias against Complainant Smith.
The fact that these slurs were made intermittently and within
minutes of the adverse actions taken by Chong links such actions
to Chong's bias and constitutes direct evidence of Chong's intent
to discriminate against Complainants because of their race and
because of Complainant Smith's sex. See, Jones v. City of
Boston, supra; Miles v. M.N.C., supra; EEOC v. Alton Packaging
Corp., supra; Senello, supra.
Respondents argue that aside from passing Complainants'
stop, the other adverse actions did not occur. However, the
weight of the evidence supports Complainant Smith's testimony,
which was again consistent with reports she made immediately after
the incident. In her statement to Hooper, Complainant Smith
stated that Chong deliberately rocked the bus by accelerating and
stopping hard. (Ex. 12; Ex. 26 at 31, 35-36) In her statement
to Officer Akana, Complainant stated that Chong slowed and then
accelerated past her stop, and was "jerking" the bus. (Ex. 9)
In the complaint report made to MTL customer service, Complainant
Smith similarly stated that Chong slowed and then accelerated past
her stop and the next stop, continued jamming on the gas and
brakes, and shoved her. (Ex. 14) When seeking medical attention
later that day, Complainant Smith told Dr. Baker that she was
pushed into a pole while riding the bus. (Ex. 8)
In contrast, Chong's version of what occurred has been
inconsistent and implausible. Immediately after the incident,
Chong told Hooper that Complainant Smith showed him her bus pass
when the bus was on the freeway before Red Hill. (Ex. 12) In his
file report to McMillan, Chong states that Complainant showed him
her bus pass when the bus entered the freeway after passing Palama
Settlement. (Ex. 13) Chong later told Assistant Superintendent
Rallita that Complainant Smith showed him her bus pass after three
stops, which corroborates Complainant Smith's testimony. (Ex. 10)
In his deposition taken on March 3, 1993 Chong admits he saw
Complainant Smith's bus pass. (Ex. 23 vol. 1 at 59) Later at the
hearing Chong denied ever seeing it. (Tr. vol. IV at 14, 60) In
terms of passing Complainants' bus stop, Chong first asserted to
Rallita that he passed the stop because Complainant Smith wanted
to speak to a supervisor. (Ex. 10) Later at the hearing Chong
claimed that he passed Complainants' stop because he was angry
with Complainant Smith for showing her bus pass so late. (Tr. vol.
IV at 43-44, 58) In his incident report to McMillan, Chong
states that Complainant Smith began to lean on him after he called
MTL Central Control. (Ex. 13) Later, in his deposition and at
the hearing, Chong claimed that Complainant Smith stood up and
started to lean on him after he passed the Waimalu Zippy's bus
stop but before he called Central Control. (Tr. vol. IV at 15,
63-64; Ex. 23 vol. 1 at 37-38, 67) In addition, Chong admitted
that Complainant Smith said nothing when she started to lean on
him, that he didn't know how or why she leaned on him and didn't
know if she lost her balance and fell. (Tr. vol. IV at 54; Ex.
23 vol. 1 at 80) Finally, in the incident report Chong states
that Complainant Smith sat down after he pointed to a sign
requiring passengers to remain behind the yellow standee line
(Ex. 13); in his deposition and testimony at the hearing Chong
stated that Complainant Smith didn't sit down until after he
stopped the bus and radioed Central Control. (Tr. vol. IV at 64;
Ex. 23 vol. 1 at 89-90)
The testimony of Susanna Sabala, a passenger on the bus, is
also not credible evidence that the conduct did not occur. Sabala
observed very little during the bus ride and what she could recall
was inconsistent with both Complainant Smith's and Chong's
versions of the events. Sabala testified that when the bus
reached Palama Settlement, Complainant Smith turned around and
said words to the effect that the bus driver was harassing her.
(Tr. vol. III at 146) Neither Chong nor Complainant Smith
testified that such statement was ever made. In addition, Sabala
stated that she was sitting in the last forward facing bench seat
across from the back door of the bus and could not hear any words
spoken by Chong or Complainant Smith. (Tr. vol. III at 146, 161-
162) Sabala testified that during the bus ride she closed her
eyes, looked out the window and did not see Complainant Smith ring
for her stop, stand up at the front of the bus, or lean on Chong.
(Tr. vol. III at 162-164, 169) She also didn't see Chong radio
Central Control. (Tr. vol. III at 165) The only other time
Sabala observed Complainants was when they were getting off the
bus at the Foodland stop. (Tr. vol. III at 164)
Respondents argue that Complainant Smith provoked Chong in
to passing Complainants' stop when she failed to show her bus pass
on time and provoked Chong into calling her "nigger" when she
leaned against him. Such assertions do not establish that Chong
would have acted as he did without regard to Complainants' race
or Complainant Smith's sex. Chong testified that prior to the
incident, he always allowed passengers who could not show their
passes upon boarding the opportunity to show their passes later.
(Tr. vol. IV at 65; Ex. 23 vol. 1 at 51-52) Chong had a record
of being a quiet, safe bus driver with good public relations.
(Ex. 25 at 51) Furthermore, MTL trained its bus drivers to give
late paying passengers a reasonable time to pay their fares or
show their passes, and to treat such passengers like any other
passenger. (Ex. 23 vol. 1 at 51-52, 57-58; Ex. 27, answer to
interrogatory no. 38; Ex. 25 at 53) Finally, MTL/OTS management
testified that even if provoked, bus drivers were prohibited from
using racist slurs in speaking to or about passengers. (Tr. vol.
V at 77, 82-84; Ex. 25 at 67-68)


Circumstantial Evidence Of Discriminatory Acts
Finally, discrimination under Chapter 489 may be established
by circumstantial evidence. The burden shifting formula
enunciated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93
S.Ct. 1817, 36 L.Ed.2d 688 (1973) has been used by other courts
to analyze cases under Title II and other state public
accommodation statutes. See, K-Mart Corp. v. Human Rights Comm.,
383 S.E.2d 277, 280-281 (W.Vir. 1989); Lewis v. Doll, 765 P.2d
1341, 1344 (Wash.App. 1989); Potter v. LaSalle Sports & Health
Club, 368 N.W.2d 413, 416-417 (Minn.App. 1985) affirmed, 384
N.W.2d 873 (1986). I conclude that such formula is applicable
to such cases under Chapter 489.
Accordingly, the Executive Director has the initial burden
of establishing a prima facie case of discrimination by proving
by the preponderance of the evidence that:
(1) complainant belongs to a protected group;

(2) complainant attempted to avail himself or herself of the
goods, services, facilities, privileges, advantages or
accommodations of a public accommodation;

(3) respondent denied, or attempted to deny, complainant the
full and equal enjoyment of its goods, services, facilities,
privileges, advantages or accommodations.

K-Mart Corp. v. Human Rights Comm., supra.

The establishment of the above prima facie case raises a
presumption of discrimination because such actions, if otherwise
unexplained, are more likely than not based on unlawful
discrimination. Texas Dept. Of Community Affairs v. Burdine, 450
U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207, 216 (1981).
The burden then shifts to the respondent to rebut this
presumption by producing evidence that the complainant was denied
its services, goods, facilities, privileges, advantages or
accommodations for a legitimate, nondiscriminatory reason. If
respondent carries this burden of production, the presumption
raised by the prima facie case is rebutted. K-Mart Corp. v. Human
Rights Comm., supra; Texas Dept. Of Community Affairs v. Burdine,
67 L.Ed.2d 207, 216-217.
The Executive Director must then prove that respondent's
proffered reason was not the true reason for its actions either
by showing that: 1) the action was more likely motivated by a
discriminatory reason; or 2) the respondent's explanation was
untrue. K-Mart Corp. v. Human Rights Comm., supra; Texas Dept.
Of Community Affairs v. Burdine, supra.
In the present case, if the Commission concludes that there
is no per se violation of H.R.S.  489-3 and/or that there is no
direct evidence of discriminatory intent, I alternatively conclude
that the Executive Director has established, through
circumstantial evidence, that Chong committed discriminatory acts
against Complainants. The Executive Director met its initial
burden of establishing a prima facie case of discrimination when
it proved that: 1) Complainants belong to a protected group (they
are Black African; additionally, Complainant Smith is a woman);
2) Complainants attempted to use the services of TheBus, a public
accommodation; and 3) TheBus denied Complainants the full and
equal enjoyment of its services when its bus driver failed to stop
at their signaled bus stop, referred to Complainant Smith as a
"nigger", "Black thing" and "mama", drove the bus in an erratic
manner and pushed Complainants.
Respondents attempted to rebut this prima facie case by
arguing that Complainant Smith provoked Chong into passing
Complainants' stop when she failed to show her bus pass on time,
and provoked Chong into calling her "nigger" when she leaned
against him.[6] However, these arguments are not legitimate, non
discriminatory reasons for denying Complainants equal enjoyment
of Respondents' bus services. MTL management testified that even
if Complainant Smith did not immediately show her bus pass, Chong
was trained to allow her a reasonable time to show her pass and
to treat her like any other passenger. (Ex. 17, answer to
interrogatory no. 38; Ex. 25 at 53). Complainant Smith did show
her bus pass within 3-4 stops after entering the bus, and after
showing her pass, there was no reason not to stop at Complainants'
signaled bus stop. MTL management also testified that even if
provoked, Chong was prohibited from using racist slurs in speaking
to or about Complainant Smith. (Tr. vol. V at 77, 82-84; Ex. 25
at 67-68) Respondents have failed to carry their burden of
producing evidence of legitimate, nondiscriminatory reasons for
Chong's adverse actions towards Complainants. They therefore
failed to rebut the presumption of discrimination raised by the
Executive Director's prima facie case.

C. LIABILITY

1. Respondent MTL, Inc.
Given Chapter 489's broad prohibition against all unfair
discrimination in public accommodations, I conclude that the
doctrine of respondeat superior is applicable to cases involving
discriminatory acts committed by employees of a public
accommodation against their customers. People of State of N.Y.
v. Ocean Club, 602 F. Supp. 489, 492-494 (E.D.N.Y. 1984) (club
liable under Title II for discriminatory acts of its manager
against members and their Jewish guests); Black v. Bonds, 308
F.Supp 774, 776 (S.D. Ala. 1969) (cafe owner liable for
discriminatory acts of waitress under Title II even though
waitress acted in defiance of owner's instructions); see also,
King, supra, at 352. Respondent MTL, Inc. is therefore liable for
the discriminatory acts of its bus drivers regardless of whether
the acts were authorized or even forbidden, and regardless of
whether it knew or should have known of their occurrence. Because
Chong was an employee of MTL when he committed the above
violations, MTL is liable for his conduct.

2. Respondent OTS, Inc.
Respondent OTS, Inc. is the successor operator of TheBus.
Under Title VII, a successor employer may be liable for the
discriminatory acts of its predecessor if there is a substantial
continuity of identity in the business enterprise. EEOC v.
MacMillan Bloedel Containers, Inc. 503 F.2d 1086, 8 EPD 9727 at
6038-6039 (6th Cir. 1974); Slack v. Havens 522 F.2d 1091, 10 EPD
10343 at 5046 (9th Cir. 1975). I conclude that a successor owner
and/or operator of a public accommodation may be similarly liable
for the discriminatory acts committed by its predecessor if there
is a substantial continuity of identity in the entity. This is
because the analysis used to justify the successor doctrine in
employment discrimination cases is applicable to public
accommodation discrimination cases. The analysis involves
balancing of the purpose of Title VII with the legitimate and
often conflicting interests of the successor and victim. See,
MacMillan Bloedel, 8 EPD 9727 at 6038-6039. [7]
In the present case, the purposes of Chapter 489 are to
protect the public's interest in being free of unfair
discrimination by public accommodations and to give victims
complete relief. H.R.S.  489-1, 368-17; Conf. Com. Rep. 50-86,
1986 House Journal at 936; SCRep. 372, 1989 House Journal at 984.
Complainants have an interest in obtaining restitution for their
injuries and in securing assurances that future discriminatory
acts will not occur. Respondent OTS is in the best position to
effectively remedy this violation and prevent future violations.
Furthermore, Respondent OTS can and did protect itself from
financial liability by securing an indemnity clause in its
contract with the City and County of Honolulu.
The factors used to determine successor liability under
Title VII [8] are also relevant in determining successor liability
under Chapter 489. Thus, Respondent OTS, as the successor
contractor with the City and County of Honolulu to operate TheBus,
is also liable for Chong's conduct because: 1) it had notice of
Complainant Smith's complaint with the Hawaii Civil Rights
Commission; 2) MTL had the ability to provide relief; 3) there
is a substantial continuity of business operations; 4) it uses
the same buildings and structures as MTL; 5) it uses the same or
substantially the same work force as MTL; 6) it uses the same or
substantially the same supervisory personnel; 7) the same jobs
exist under substantially the same working conditions; 8) it uses
the same machinery and equipment as MTL; and 9) it offers the
same services as MTL.
I therefore conclude that both Respondents MTL, Inc. and
OTS, Inc. are liable for violating H.R.S.  489-3.

D. REMEDIES
1. Compensatory Damages
The Executive Director requests that Respondents be ordered
to pay Complainant Smith compensatory damages of $35,000 for the
physical injury and emotional distress she suffered. It also
seeks Complainant Smith's costs for future psychological
treatment.
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 Complainants
suffered as a result of Chong's actions. The Executive Director
must demonstrate the extent and nature of the resultant loss or
injury, and Respondents must demonstrate any bar or mitigation to
any of these remedies.

a) Emotional Injuries
The evidence shows that Complainant Smith suffered
considerable emotional distress during the incident which
continued at least until she filed a complaint with this
Commission on June 21, 1991. While on the bus with Chong,
Complainant Smith was shocked, angry and hurt by Chong's words and
actions. She also felt disgraced by Chong in front of the other
passengers. When Chong began to drive in an erratic and jerking
manner, Complainant Smith thought she and Jonathan would be
seriously injured or killed. After the incident, Complainant
Smith continued to feel angry and upset about Chong's conduct.
She constantly cried, thought about the incident and felt
humiliated and ashamed that she did not respond to Chong's actions
in a more effective way.
The Executive Director, however, has not shown by a
preponderance of the evidence that Complainant Smith suffered post
traumatic stress disorder as a result of Chong's conduct. Dr.
Singer testified that Complainant Smith's symptoms were caused
both by Chong's conduct and the fears she had that Chong, his
"gang" or other bus drivers might retaliate. These fears stemmed
not from Chong's conduct, but from stereotypes about local people
Complainant Smith held, as well as from Aurora Johnson's
statements about Chong possibly belonging to a "gang". When
discussing Complainant Smith's symptoms such as: fear of riding
a bus in Hawaii (criteria B), not engaging in social activities
(criteria C), cutting short her education because she felt she
couldn't stay in Hawaii (criteria C), continuing difficulties
falling asleep and difficulties concentrating on her school work
(criteria D), Dr. Singer did not specify whether these symptoms
were caused by Chong's actions, Complainant Smith's fears, or
both. Therefore, although Complainant Smith may be suffering from
post traumatic stress disorder, the Executive Director has not
established that such condition was caused by Chong's conduct.
(Tr. vol. II at 101-110, 128-136)
Considering these circumstances, I determine that $20,000 is
appropriate compensation for Complainant Smith's physical and
emotional injuries.
b) Future Medial Costs
The Executive Director also seeks Complainant Smith's costs
for future psychological treatment. Dr. Singer, based on his
diagnosis that Complainant Smith suffered distress from Chong's
conduct and has mild post traumatic stress disorder, recommended
at least five desensitization sessions, including meetings with
Chong and his family, to treat her condition. (Tr. vol. II at
136-139) However, because Complainant Smith's post traumatic
stress disorder stems from both Chong's conduct and her fears of
Chong caused by her own stereotypes and Johnson's statements, I
determine that Respondents should pay the costs for three
desensitization sessions. These sessions are to be held if and
when Complainant Smith moves back to Hawaii and should include
meetings with Chong and his family, as recommended by Dr. Singer.
2. Threefold Damages
The Executive Director seeks $1,000 or threefold damages,
pursuant to H.R.S.  489-7.5.
H.R.S.  489-7.5(a) provides that any person who is injured
by an unlawful discriminatory practice may sue for damages
sustained and if the judgment is for the plaintiff, the plaintiff
shall be awarded a sum not less than $1,000 or threefold damages
by the plaintiff sustained, whichever sum is the greater.
(Emphasis added)
The present case is not a suit brought by a person injured
by an unlawful discriminatory practice. The provisions of
 489-7.5 therefore do not apply and I decline to award treble
damages.
3. Nominal Damages to Complainant Betts
The Executive Director requests nominal damages of $1 to
Complainant Jonathan Betts.
When compensatory damages are not computable, nominal
damages of $1 may be awarded for injuries arising from a violation
of some legal right. Ferreira v. Hon. Star-Bulletin, 44 Haw.
567, 577-579 (1960); Minatoya v. Mousel, 2 Haw. App. 1, 6 (1981).

In the present case, although Complainant Betts was sleeping
when the adverse incidents of March 7, 1991 occurred and the
Executive Director did not present any evidence of emotional or
physical injuries suffered by him, nevertheless his rights under
chapter 489 were violated when Chong passed his bus stop and
pushed him and his mother towards the front door of the bus
because of their race. I therefore award Complainant Betts
nominal damages of $1.
4. Civil Penalties
Pursuant to H.R.S.  489-8, the Executive Director asks the
Commission assess the maximum civil penalty of $10,000 for one
violation of H.R.S.  489-3. [9] H.R.S.  489-8 provides that
any person, firm, company, association, or corporation who
violates Chapter 489 shall be fined a sum of not less than $500
nor more than $10,000 for each violation.
The record shows that Respondent MTL did not take reasonable
actions to investigate the incident and discipline Chong. Neither
Chong nor Hooper took names of witnesses to the incident despite
MTL regulations which require bus drivers and road supervisors to
do so. MTL customer relations sent a letter to Complainant Smith
stating that it had fully investigated the incident and
disciplined Chong before Assistant Superintendent Rallita did
these things. The discipline given to Chong was inadequate. MTL
management considered a bus driver's use of racial slurs, even if
provoked, to be a class III offense, with a minimum disciplinary
action of 10-30 days suspension. However, Rallita merely
counselled Chong to check his tone in speaking to passengers.
Such disciplinary action was approved by MTL Vice President of
Transportation Kenneth Hong even though Rallita never provided any
reasons for non-compliance with the MTL disciplinary code.
The evidence also shows that although Respondent OTS
subsequently took serious and commendable steps to: terminate a
bus driver who allegedly made racial slurs to a passenger; issue
a non discrimination policy; post notices of its policy on its
buses and develop training materials on such policy for its bus
drivers[10], these actions did not occur until after a second
incident occurred. In addition, non-entry and non-"problem" bus
drivers, such as Chong, have still not received training on such
policy even though it was promulgated over one year ago. (Tr.
vol. V at 38-40, 80-81; Ex. 23 vol. 2 at 13-17; Ex. A at 1-3; Exs.
P-1, P-2)
Considering the above, together with Chong's use of several
racial slurs and the severity of his adverse conduct towards
Complainants, I determine that the maximum penalty of $10,000 is
appropriate.
5. Deposition Costs
The Executive Director also seeks its deposition costs.
H.R.S.  368-17(a)(9) allows payment to the complainant of
all or a portion of the costs of maintaining the action before the
Commission. The deposition costs in the present case were borne
by the Executive Director, not the Complainants. I therefore
decline to award the Executive Director its deposition costs.

6. Other Equitable Relief
Finally, the Executive Director asks that the Commission
order Respondents to:
a) publish the results of this contested case hearing in
a press statement provided by the Commission in at
least one newspaper published in the state and having
general circulation in Honolulu, Hawaii;

b) adopt a comprehensive policy prohibiting unlawful
discrimination;

c) formally train their employees and officers about such
policies; and

d) post notices provided by the Commission setting forth
compliance with civil rights laws in conspicuous
places, including the buses.

Respondent OTS has already developed a non discrimination
policy, a poster for its buses and is in the process of developing
training materials on non discrimination for its bus drivers.
It has stated that it has been and remains willing to work with
the Executive Director to further develop its policy, training
program and bus notices. (Tr. vol. V at 46-47, 187-188; Ex. A-
109-1)
I therefore recommend that the Commission direct the
Executive Director to submit its comments on Respondent OTS's
policy, bus poster and training materials within 60 days of the
effective date of the Commission's final decision in this matter.
I also recommend that the Commission direct Respondent OTS to
adopt in substance the Executive Director's comments and
accordingly modify its policy, bus posters and training materials
within 90 days of the receipt of the Executive Director's
comments. I further recommend that the Commission direct
Respondent OTS to conduct formal training on the revised non
discrimination policy for all its employees and officers within
180 days of modifying its policy and training materials.
Respondent OTS is to schedule Jarvis Chong to participate in the
first refresher training program on such non discrimination
policy.
Finally, I believe that the best way to publicize this
decision and OTS's non discrimination policy to the public is to
require Respondents MTL and OTS to publish the attached Notice
(Attachment 1) in a newspaper published in the state of Hawaii
having a general circulation in the City and County of Honolulu.

RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents MTL, Inc. and OTS,
Inc. violated H.R.S.  489-3 when their bus driver: used racial
and sexist slurs in speaking to and about Complainant Smith,
passed Complainants' bus stop, drove the bus in an erratic manner
and pushed Complainants.
For the violation found above, I recommend that pursuant to
H.R.S.  368-17, the Commission should order:
1. Respondents MTL, Inc. and OTS, Inc. to jointly and
severally pay Complainant Smith $20,000.00 as damages
in compensation for her physical and emotional
injuries.
2. Respondents MTL, Inc. and OTS, Inc. to jointly and
severally pay Complainant Smith, should she return to
live in Hawaii, the costs for three desensitization
sessions which are to include meetings with Chong and
his family as recommended by Dr. Singer.
3. Respondents MTL, Inc. and OTS, Inc. to jointly and
severally pay Complainant Betts nominal damages of
$1.00.
4. Respondents MTL, Inc. and OTS, Inc. to jointly and
severally pay $10,000.00 in civil penalties to the
State of Hawaii General Fund.
5. Respondents MTL, Inc. and OTS, Inc. to jointly publish
the attached Notice (Attachment 1) in a newspaper
published in the state of Hawaii having a general
circulation in the City and County of Honolulu within
10 days of the Commission's final decision in this
matter.
6. The Executive Director to submit its comments on OTS's
non discrimination policy, non discrimination training
materials and the non discrimination bus poster within
60 days of the effective date of the Commission's final
decision in this matter.
7. Respondent OTS, Inc. to modify its non discrimination
policy, training materials and bus poster to adopt, in
substance, the Executive Director's comments within 90
days after receiving such comments.
8. Respondent OTS, Inc. to conduct training of all its
employees, including bus drivers, supervisory personnel
and officers on the modified non discrimination policy
within 180 days of modifying its policy. In addition,
Respondent OTS, Inc. is to schedule Jarvis Chong to
participate in the first refresher training program on
such policy.


Dated: Honolulu, Hawaii, July 23, 1993.

HAWAII CIVIL RIGHTS COMMISSION



/s/____________________________
LIVIA WANG
Hearings Examiner

Proposed Decision (July 23, 1993)



ATTACHMENT 1


NOTICE TO ALL USERS OF THEBUS

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 the operators of TheBus (MTL, Inc. and Oahu Transit
Services, Inc.) violated Hawaii Revised Statutes Chapter 489,
Discrimination In Public Accommodations, on March 7, 1991 when one
of their bus drivers discriminated against a passenger and her
child on the basis of race and sex by:
a) using racial and sexist slurs in speaking to and about
that passenger;
b) intentionally passing that passenger and her child's
bus stop;
c) driving the bus in an erratic manner which made that
passenger fall; and
d) pushing that passenger and her child.

(In Re Smith and MTL, Inc. et. al. Docket No. 92-003-PA-R-S, [date
of final decision] 1993).

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

1) Pay that passenger a monetary award to compensate her
for the physical and emotional injuries she suffered
and pay her child a nominal award to compensate him for
violation of his rights under Chapter 489.

2) Pay a civil penalty to the State of Hawaii general
fund.

3) Allow the Executive Director of the Hawaii Civil Rights
Commission to comment on the non discrimination policy,
training materials and bus poster developed by Oahu
Transit Services, Inc.

4) Require Oahu Transit Services Inc. to modify its non
discrimination policy, training materials and bus
poster pursuant to the Executive Director's comments
and to conduct training sessions for its bus drivers,
supervisors and officers to educate them about their
treatment of passengers under the modified policy.

DATED: _____________________

BY: ______________________________
Authorized Agent for MTL, Inc.

BY:___________________________
Authorized Agent for Oahu
Transit Services, Inc.



APPENDIX A

On October 7, 1992 the Executive Director sent Respondents
MTL, Inc., Oahu Transportation Services, Inc. (hereinafter "OTS"),
Department of Transportation Services, City and County of Honolulu
and Honolulu Public Transit Authority, City and County of Honolulu
(hereinafter, "City Respondents") a final conciliation demand
letter pursuant to Hawaii Administrative Rule (H.A.R.) 12-46-17.
On October 23, 1992 the complaint was docketed for
administrative hearing and a Notice Of Docketing Of Complaint was
issued. On November 4, 1992 an Amended Notice Of Docketing Of
Complaint was issued to include Honolulu Transit Authority, City
and County of Honolulu as a respondent.
On November 11, 1992 the Executive Director filed its
Scheduling Conference Statement. OTS filed its Scheduling
Conference Statement on November 12, 1992. On November 13, 1992,
City Respondents and MTL, Inc. filed their Scheduling Conference
Statements. A Scheduling Conference was held on November 20, 1992
and the Scheduling Conference Order was issued that same day.
On March 31, 1993 notices of hearing and prehearing
Conference were issued. The Executive Director filed its
Prehearing Conference Statement and Amended Prehearing Conference
Statement on April 5, 1993 and April 12, 1993, respectively.
Respondents MTL/OTS filed their Prehearing Conference Statement
and Amended Prehearing Conference Statement on March 30, 1993 and
April 12, 1993, respectively. City Respondents notified the
Hearings Examiner that the parties were in the process of
dismissing City Respondents from this action and that City
Respondents would not file a prehearing conference statement nor
attend the prehearing conference. On April 12, 1993 a prehearing
conference was held and the Prehearing Conference Order was issued
on April 14, 1993.
On April 8, 1993 the parties stipulated to extend the
hearing date from April 19, 1993 to May 17, 1993 to accommodate
the Complainant Smith's work schedule. On April 14, 1993 the
Commission approved the Stipulation To Extend Hearing Date. On
April 14, 1993 an Amended Notice Of Hearing and the Prehearing
Conference Order were issued.
On April 14, 1993 Respondents MTL and OTS filed a Motion To
Further Discovery in order to take the deposition of Dr. Jack
Singer, the Executive Director's expert witness. On April 22 and
23, 1993 the Executive Director filed its memorandum in opposition
to this motion and a supplemental affidavit, respectively. On
April 24, 1993 the Hearings Examiner issued an Order Granting
Respondents MTL and OTS's Motion To Further Discovery.
On April 28, 1993 the Executive Director filed a Motion For
Summary Judgment Or Partial Summary Judgment. On May 6, 1993
Respondents MTL and OTS filed their Memorandum In Response To
Executive Director's Motion For Summary Judgment. On May 7, 1993
a hearing was held on this motion and on May 10, 1993 Respondents
MTL and OTS filed their Supplemental Memorandum In Response To The
Executive Director's Motion For Summary Judgment Or Partial
Summary Judgement. On May 11, 1993 the Hearings Examiner issued
an order denying the Executive Director's Motion For Summary
Judgment Or Partial Summary Judgment.
On April 29, 1993 the parties filed a Stipulation For
Partial Dismissal With Prejudice Of Respondents Department Of
Transportation Services, City And County Of Honolulu And Honolulu
Public Transit Authority, City And County Of Honolulu.
On April 29, 1993 the Executive Director filed a Motion To
Limit Respondents' Expert Witnesses And Related Orders. On May
6, 1993 Respondents OTS and MTL filed an Amended Identification
Of Expert Witnesses. On May 7, 1993 the Hearings Examiner issued
an order granting in part and denying in part the Executive
Director's Motion To Limit Respondents' Expert Witnesses And
Related Orders.
On May 11, 1993 Respondents MTL and OTS filed a Motion To
Amend Witness List. That same day, the Executive Director filed
a Motion To Prevent Respondents From Naming Another Witness, Or
In The Alternative, Motion For Further Discovery And Related
Orders. On May 13, 1993 the Hearings Examiner issued an Order
Granting Respondents MTL and OTS' Motion To Amend Witness List and
issued an order granting in part and denying in part the Executive
Director's Motion To Prevent Respondents From Naming Another
Witness Or In The Alternative, Motion For Further Discovery And
Related Orders.
On May 12, 1993 the Executive Director filed its
Identification of Witnesses, List Of Exhibits and exhibits.
Respondents MTL and OTS also filed their List Of Exhibits and
exhibits.
On May 13, 1993 the parties stipulated to have a court
reporter record the contested case hearing in this matter with
costs to be borne by the Executive Director.
The contested case hearing on this matter was held on May
17, 19, 20, 21 and 24 1993 at the Hawaii Civil Rights Commission
conference room, 888 Mililani Street, 2nd floor, Honolulu, Hawaii
pursuant to H.R.S. Chapters 91 and 368. The Executive Director
was represented by Enforcement Attorneys Karl K. Sakamoto and
Calleen J. Ching. Complainant Smith was present during portions
of the hearing. Respondents MTL and OTS were present through
their representative, Amos McMillan and were represented by their
attorneys Jared H. Jossem and Kitty K. Kamaka.
On May 18, 1993 Respondents MTL and OTS filed a Memorandum
of Authorities regarding invoking an adverse inference from the
Executive Director's failure to call its listed witnesses. The
Executive Director also filed a Memorandum In Opposition To
Respondents' Claim For An Adverse Inference on May 18, 1993.
The parties were granted leave to file proposed findings of
fact and conclusions of law and/or hearing briefs. On June 7 and
8, 1993 the Executive Director filed its Post Hearing Memorandum
and Supplemental Post Hearing Memorandum, respectively. On June
8, 1993 Respondents MTL and OTS filed their Proposed Findings Of
Fact And Conclusions Of Law and Post Hearing Brief.
On June 15, 1993 pursuant to a request by the Hearings
Examiner, the parties stipulated to admit the document entitled
"City and County of Honolulu Public Transit Authority Management
and Operations Agreement" dated December 30, 1991 into the record
of the contested case hearing in this matter as Exhibit Q.

-----------------------------------------------
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 held
on May 17, 19-21 and 24, 1993; "Ex." followed by a number refers
to the Executive Director's exhibits; "Ex." followed by a letter
refers to Respondents MTL/OTS's exhibits.

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

4. 42 U.S.C.  2000a states in relevant part:

(a) Equal access. All persons shall be
entitled to the full and equal enjoyment of
the goods, services, facilities, privileges,
advantages, and accommodations of any place
of public accommodation, as defined in this
section, without discrimination or
segregation on the ground of race, color,
religion or national origin.

5. Respondents MTL and OTS admit that even when provoked,
the use of racial slurs by an owner or employee of a public
accommodation is a denial of the full and equal enjoyment of that
public accommodation's services. Respondents MTL and OTS' Post
Hearing Brief at 14.

6. Respondents also argue that aside from passing
Complainants' stop and referring to Complainant Smith once as a
"nigger" the other adverse actions did not occur. As discussed
in the above two sections, I find that Chong used the slur
"nigger" more than once, as well as the terms "Black thing" and
"mama", drove the bus in an erratic manner and pushed
Complainants.

7. In MacMillan Bloedel, the Sixth Circuit stated that the
purpose of Title VII was to eliminate employment discrimination
and to make victims whole by eradicating present and future
effects of past discrimination. It also found that the failure
to hold a successor employer liable for the discriminatory acts
of its predecessor could leave a victim without a remedy (such as
no monetary relief) or with an incomplete remedy (inability to be
hired, obtain seniority, or be reinstated). The court also found
that the successor employer could take into account potential
liability though the price paid for the business or by securing
an indemnity clause in the sales contract with its predecessor.
8 EPD 9727 at 6039-6042.

8. This involves a case by case consideration of whether:
1) the successor had notice of the charge; 2) the predecessor
had the ability to provide relief; 3) there has been a
substantial continuity of business operations; 4) the new
employer used the same plant; 5) the same work force is being
used; 6) the same supervisory personnel are being used; 7) the
same jobs exist under substantially the same working conditions;
8) the same machinery, equipment and methods of production are
being used; 9) the same product is being produced. EEOC v.
MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 8 EPD 9727 at
6042 (6th Cir. 1974); Slack v. Havens, 522 F.2d 1091, 10 EPD 10343
at 5406 (9th Cir. 1975).

9. Given that Chong committed a series of adverse actions
against Complainants, I do not necessarily agree that only one
violation of H.R.S.  489-3 occurred in this case.

10. On February 13, 1992 Mark Ibanez, a bus driver for
OTS, Inc. was suspended pending dismissal for saying "I don't like
people like you" and using an "Amos and Andy" accent to mock
Jacqueline Langley, a Black passenger on his bus. On February 19,
1992 Ibanez was terminated. OTS management believed that Ibanez
also called Langley a "nigger". (Exs. 33b; A-109-2)

Pursuant to a collective bargaining agreement between OTS
and the Hawaii Teamsters and Allied Workers Union Local 996,
Ibanez filed a grievance. The arbitrator concluded that if Ibanez
had made overt racial slurs to a bus passenger, such conduct would
constitute a class III offense. However, because OTS did not
prove that Ibanez had used racial slurs or an "Amos and Andy"
accent towards Langley, the arbitrator set aside the termination,
ordered OTS to give Ibanez a refresher course on public relations,
and ordered Ibanez reinstated, without back pay or benefits on six
months probationary status. (Ex. 33b)

After the Ibanez-Langley incident, OTS management began
drafting a specific policy prohibiting discrimination in the
provision of transit services. On March 20, 1993 a draft non
discrimination policy was sent to the Executive Director of the
Hawaii Civil Rights Commission with a request that she comment on
its adequacy. The Executive Director did not provide OTS with
comments. OTS issued the policy to its employees on April 6, 1992
together with a letter from James E. Cowan, OTS General Manager,
entitled "Let's Keep The Aloha In Our Spirit". The policy states
in relevant part:

1. No person on the grounds of race, color, sex, religion,
ancestry, national origin, or handicap status shall be
excluded from participation or denied the benefits of
our transit service.

2. Harassment of the public or fellow employees on the
grounds of race, color, sex, religion, ancestry,
national origin, or handicap status is prohibited.
Employees found to be engaging in such harassment are
subject to severe discipline up to and including
termination. Employees must guard against uttering
racial, ethnic, or sex-based comments as these
constitute a form of harassment.

3. Under state and federal law, employees and the public
have the right to file complaints alleging
discrimination on the basis of race, color, sex,
religion, ancestry, national origin, or handicap
status.

(Tr. vol. V at 38-40; Ex. A at 1-3; Ex. A-109-2)
Prior to April 6, 1992 MTL and OTS did not have a specific
personnel policy prohibiting discrimination in the provision of
transit services. Both MTL and OTS had agreed to abide by a Title
VI Guideline issued by the Federal Transit Administration which
prohibits discrimination in the provision of services based on
race, but this guideline was not disseminated to MTL or OTS bus
drivers. However, prior to April 6, 1992 MTL and OTS bus drivers
were generally trained to be courteous to passengers, to provide
friendly service and to treat passengers as the driver would want
to be treated. (Tr. vol V. at 17, 27-28, 31, 51-58; Ex. 25 at 66;
Ex. A at 11, 13, 14,, 16, 18, 20, 22, 32, 35, 38, 39, 43, 44, 54,
77)

Sometime after April 6, 1992 OTS developed training
materials for new bus drivers as well as remedial training
materials for "problem" bus drivers which explain the non
discrimination policy. OTS is currently developing refresher
training materials for all bus drivers which explain the non
discrimination policy. (Tr. vol. V at 80-81; Exs. P-1, P-2) At
the time of the hearing in this case, Chong had received a copy
of the non discrimination policy issued on April 6, 1992 with one
of his paychecks. However, he has not received any training as
to what this policy means or how it is to be implemented. (Ex.
23 vol. 2 at 13-17)

Sometime in 1992, OTS began placing posters entitled, "Non
Discrimination Policy for Public Transit" on all of its buses.
The posters state:

TheBus is a place of public accommodation where
courtesy counts. Harassment of passengers or employees
is against the Law. If you have any complaints, please
call:

Oahu Transit Services, Customer Services 848-4500
Honolulu Public Transit Authority 527-6891
Hawaii Civil Rights Commission 586-8636

(Tr. vol. IV at 92-94; Ex. K)



CIVIL RIGHTS COMMISSION

STATE OF HAWAII

In the Matter of ) Docket No. 92-003-PA-R-S
)
SHIRLEY MAE SMITH ) ADDENDUM TO HEARING
on behalf of herself and ) EXAMINER'S FINDINGS OF
JONATHAN BETTS, her minor son ) FACT, CONCLUSIONS OF
) LAW AND RECOMMENDED
Complainants ) ORDER FILED ON
) JULY 23, 1993
- - - - - - - - - - - - - - - - )
)
MTL, INC.; OAHU TRANSIT )
SERVICES, INC.; DEPARTMENT )
OF TRANSPORTATION SERVICES, )
CITY AND COUNTY OF HONOLULU; )
HONOLULU PUBLIC TRANSIT )
AUTHORITY, CITY AND COUNTY )
OF HONOLULU, )
)
Respondents. )
________________________________)


ADDENDUM TO HEARING EXAMINER'S FINDINGS OF FACT,
CONCLUSIONS OF LAW AND RECOMMENDED ORDER FILED JULY 23, 1993

On July 23, 1993 the undersigned Hearings Examiner filed her
Findings Of Fact, Conclusions Of Law And Recommended Order in the
above captioned matter. Due to a printing error, portions of
footnote 7 on page 37 were deleted. Footnote 7, in its entirety,
should read as follows:
7 In MacMillan Bloedel, the Sixth Circuit stated that the
purpose of Title VII was to eliminate employment discrimination
and to make victims whole by eradicating present and future
effects of past discrimination. It also found that the failure
to hold a successor employer liable for the discriminatory acts
of its predecessor could leave a victim without a remedy (such as
no monetary relief) or with an incomplete remedy (inability to be
hired, obtain seniority, or be reinstated). The court also found
that the successor employer could take into account potential
liability through the price paid for the business or by securing
an indemnity clause in the sales contract with its predecessor.
8 EPD 9727 at 6039-6042.
Dated: Honolulu, Hawaii, July 23, 1993.


HAWAII CIVIL RIGHTS COMMISSION



______________________________
LIVIA WANG
Hearings Examiner