Santdra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII



In the Matter of ) Docket No. 92-001 E-SH

)
DOLORES SANTOS, ) HEARING EXAMINER'S
Complainant ) FINDINGS OF FACT,
- - - - - - - - - - - - - - - ) CONCLUSIONS OF
) LAW AND RECOMMENDED
HAWAIIAN FLOWER EXPORTS, INC. ) ORDER; APPENDIX A
and MASAMI "SPARKY" NIIMI, )
Respondents. )
______________________________)



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



I. INTRODUCTION

1. Chronology of Case

Because the procedural history of this case is rather long
and complex, it is set forth in the attached Appendix A.
2. Summary of the Parties' Contentions
The Executive Director asserts that Respondents Hawaiian
Flowers Exports, Inc. (hereinafter "HFE") and Masami Sparky
Niimi (hereinafter "Sparky") violated H.R.S. sec. 378-2 and H.A.R.
sec.sec. 12-46-101 and 109 by subjecting Complainant Dolores Santos to
unwelcome sexual conduct which unreasonably interfered with her
job performance and/or created an intimidating, hostile or
offensive work environment. Sparky denies that the alleged
sexual conduct occurred and contends that Complainant
voluntarily quit her job in anticipation of being fired for
excessive absences. In addition, he asserts that he is not an
agent of HFE and is not an employer individually liable under
H.R.S. Chapter 378. HFE decided not to contest the Executive
Director's allegations or claims.
Having reviewed and considered the evidence and arguments
presented at the hearing together with the entire record of
these proceedings, the Hearings Examiner hereby renders the
following findings of fact, conclusions of law and recommended
order.

II. FINDINGS OF FACT[1]
1. In November 1972 HFE was incorporated to do business
in the State of Hawaii. The officers of the corporation at that
time were: Masami Sparky Niimi, president; his son Robert Niimi,
vice president/assistant manager; and Susan Ijima, secretary.
Sparky held 75% of the corporate shares and Robert Niimi held
25% of the corporate shares. (Tr. 640-641; Ex. 31b at 33-38)
[2]
2. Prior to HFE's incorporation, the business was owned
and operated as Pearl's Anthuriums and later as Hawaiian Flowers
Exports by Sparky and his first wife, Tsuyako Niimi. (Tr. 639-
640; Ex. 31b at 22, 32-33)
3. Some time around 1975 Susan Ijima left the corporation
and Sparky's other son, Richard Niimi, became a vice president
and shareholder. (Ex. 31b at 38)
4. In 1981 when Sparky became 65 years old, he retired as
an officer of HFE. (Tr. 641; Ex. 31b at 39) Robert Niimi then
became president, Richard Niimi became vice president, Caroline
Niimi (Richard Niimi's wife) became treasurer and Cynthia Niimi
(Robert Niimi's wife) became the secretary. (Ex. 22) Sparky
was thereafter a director of HFE at least throughout the years
1988, 1989 and 1990 and did not receive a salary from HFE during
those years. (Ex. 23)
5. On November 16, 1988 Sparky transferred all of his
shares in the corporation to Robert, Cynthia, Richard and
Caroline Niimi. This was because Sparky had remarried and did
not want any conflicts between his second wife and his sons to
arise over the management of HFE should something happen to him.
(Tr. 641-644; Ex. A and B attached to Ex. 31b; Ex. 31b at 48)
On that same date, the directors of HFE voted to pay Sparky a
pension of $1,000 per month for the rest of his life. HFE paid
Sparky this amount at least throughout the years 1989 - 1990.
(Tr. 686-687; Ex. 31b at 49-50, Ex. 33a)
6. HFE is located in Mountain View, Hawaii. (Ex. 31b at
21) During Complainant's employment at HFE, the business was
primarily engaged in the following activities: a) growing
anthurium flowers; b) buying anthurium flowers grown by others
for resale to customers; and c) grading and packing anthurium
flowers for marketing to customers. Accordingly, HFE employees
were made up of field workers who worked in the anthurium
fields; packing plant employees who graded and packed the
flowers; and office workers. (Tr. 649-650)
7. Robert Niimi was in charge of the overall operations
of HFE. He spent about 20% of his time in the anthurium fields
directing and reviewing the work of the field workers. (Tr.
659-660) Richard Niimi was in charge of the office work,
bookkeeping and payroll matters at HFE. He occasionally helped
out with other aspects of the business. Richard Niimi spent
most of his time in the HFE office and packing plant, which are
located in the same building. He was seldom out in the
anthurium fields. (Tr. 592; Ex. 31a at 15)
8. On December 22, 1988 Robert Niimi interviewed
Complainant Dolores Santos for a job as a field worker with HFE.
Sparky and Richard Niimi were also present at the interview. On
that date, Robert Niimi hired Complainant and she was given a
tour of the HFE grounds by Robert, Richard and Sparky Niimi.
(Tr. 31-32, 36-37, 593, 659; Ex. 31b at 58)
9. Complainant was employed by HFE from December 23, 1988
to November 12, 1990. (Tr. 37; Complaint dated 11-13-90)
10. During Complainant's employment at HFE, the
corporation had one or more employees. (Ex. 32 at 7)
11. During Complainant's employment at HFE, the
corporation did not have an expressed policy against sexual
harassment. It also did not conduct any training among its
management or employees about sexual harassment. (Ex. 31a at
15-17; Ex. 32 at 16, 18) The corporation had an informal
grievance procedure by which employees could talk to either
Robert or Richard Niimi if they had any problems. (Ex. 32 at
18-19)
12. At the beginning of her employment, Complainant was a
general nursery worker. At first, her job duties were weeding
the fields and transplanting anthurium plants. Robert Niimi
considered Complainant a good worker. Later Complainant's job
duties also included cutting flowers, fertilizing the plants,
spraying herbicides and insecticides, putting in cinders,
repairing the saran covering over the fields and preparing the
greenhouses. (Tr. 38, 690-691; Ex. 31b at 65-66)
13. After about six months of employment at HFE,
Complainant was promoted to flower cutting supervisor. After
one year of employment with HFE, Complainant was promoted to
forelady and given additional duties such as driving employees
to the fields, fixing the sprinkler system and transporting
flowers to the packing plant. Towards the end of her
employment, Complainant also graded and packed flowers in the
packing plant. She was given vacation benefits and an increase
in pay to $5.50 an hour. (Tr. 39-41, 667-668, 691-692; Ex. 31b
at 66-67; Ex. 32 at 8-9)
14. During Complainant's employment at HFE, Sparky was
active in HFE's business affairs. He came in to the office and
packing area from 1-3 times a week to pick up and deliver
flowers to customers in the Hilo area and to the airport for
shipping to customers on the outer islands and in Japan. (Tr.
87, 123-124, 591-592, 608-609, 644-645; Ex. 31b at 91-92; Ex. 32
at 21) Sparky also worked with and supervised Complainant and
the other field workers approximately 2-3 times per week for up
to half day periods. When Robert Niimi was not out in the
fields, Sparky directed Complainant and others where to weed and
spray, how to mix pesticides, how to clip the flowers, how to
repair the saran and how to use and take care of the masks and
other equipment used by the workers. (Tr. 42-47, 61, 381, 386,
467-469, 489-490, 660-661, 671-675; Ex. 31b at 90-91; Ex. 32 at
21) On transplanting days, Sparky cut up to 1,000 anthurium
plants for Complainant and other field workers to transplant.
This involved cutting each plant's root at the correct length;
otherwise the plant would die. In the packing plant, Sparky
showed Complainant how to grade and pack the flowers. (Tr. 45)
15. Sparky had no set working hours at HFE. He came on to
the premises and worked and/or supervised the employees whenever
he wanted to. (Tr. 591-592, 608, 645-646)
16. Robert and Richard Niimi approved of Sparky's work and
supervision of HFE employees. (Tr. 591-592, 660-661, 671-675)
When Sparky's directions to HFE field workers conflicted with
earlier directions given by Robert Niimi, Robert Niimi would
instruct Complainant and others to follow Sparky's directions.
(Tr. 44-45, 469, 489) With HFE management's approval, Sparky
exercised supervisory authority over Complainant and had
significant control over her conditions of employment.
17. Throughout Complainant's employment with HFE, Sparky
continuously subjected Complainant to offensive and unwelcome
sexual conduct. Such conduct included the following incidents:
a) Shortly after her employment, Sparky asked Complainant
personal questions, such as if she was single and if she
had boyfriends. He also asked her if he could take her to
her home after work and if he could be her boyfriend.
Complainant refused Sparky's requests to take her home and
be her boyfriend. She felt that the questions had sexual
overtones. (Tr. 64-66; Ex. G at 49)
b) Sparky also made comments about other female HFE
employees to Complainant. Once he told Complainant that
Roxanne Taylor, the other female field worker, wore her
pants tight and that he thought she was a nymphomaniac.
(Tr. 189) Sparky also told Complainant that Toby Mahu,
Complainant's roommate who worked in the HFE office for a
short time, looked nice because she wore a bra. (Tr. 253)
c) Sparky's verbal comments became more offensive.
Several times when they were weeding, Sparky would ask
Complainant to wait until he got closer before she bent
down. (Tr. 247) He also compared Complainant's breasts
and buttocks to his wife's, stating that Complainant's
"ass" was like his wife's, but that he liked Complainant's
"tits" better. (Tr. 224) Once when Complainant was
working in the field near Sparky's house, he told her he
wanted to "suck" her "pussy". (Tr. 242-243) Sparky also
told Complainant that she should wear a bra to work so that
she would look better, and also asked Complainant to wear
short skirts to work so he could see underneath her skirts.
(Tr. 243-244) When Complainant was in the presence of Ivan
Farinas and another male field worker, Sparky asked which
one of them was going to go home with her that day. (Tr.
229-230, 383) While Complainant was in the presence of
Alfredo Cabaccang, another male field worker, Sparky told
Mr. Cabaccang to "eat" Complainant's "pussy" because it
would taste good. (Ex. G at 64) Once after Complainant
parked the company van, Sparky walked up, pulled his zipper
down, grabbed his crotch and told Complainant she would
feel good if she grabbed his "head". (Tr. 244-245) These
comments embarrassed Complainant and made her feel ashamed
and cheap. (Tr. 225, 230)
d) On many occasions, Sparky would put his hand on
Complainant's shoulder or put his arms around her shoulders
and pull her towards him when he was talking to her.
Complainant would usually step away from Sparky, push him
away or shake his hand or arm off her shoulder when he did
this because she didn't want him to touch her. (Tr. 90-
91, 185, 382, 440-444; Ex. G at 64)
e) Sparky's physical conduct also became more offensive.
He attempted to kiss Complainant several times while she
was working in the fields. (Tr. 186-187, 445-448, 496-497)
He also attempted to kiss Complainant when she was opening
the corporation's van doors to put flowers inside. (Tr.
176, 184-185, 445-446; Ex. G at 58-62) During these
incidents, Complainant would push Sparky away and tell him
to leave her alone. (Tr. 184-187, 445, 447; Ex. G at 60,
62) Sparky also grabbed and squeezed Complainant's
buttocks while she was bending down to check pesticides in
the pesticide shed. The grabbing of her buttocks caused
Complainant physical pain. (Tr. 73-74) Sparky also
grabbed Complainant's breasts. Once he stood behind
Complainant, reached his arms around her and grabbed her
breasts when she was packing flowers. (Tr. 70-72; Ex. G at
70-71) On two occasions when Complainant was near the
company van, Sparky walked in front of her and grabbed her
breasts. She told Alfredo Cabaccang about one incident,
while Richard Carlson, another field worker, witnessed the
other. (Tr. 172-175, 183-184, 472-477; Ex. G at 51-58) On
these occasions, Complainant would push or slap Sparky away
and tell him not to do it or to leave her alone. (Tr. 74,
175, 472-473; Ex. G at 56, 71) Sparky would respond by
laughing or smirking and then walk away. (Tr. 175, 186;
Ex. G at 56) In the presence of Ivan Farinas, Sparky
attempted to grab Complainant's crotch area. Complainant
backed off and put her arms down to block Sparky's hand
from touching her. (Tr. 229, 381-383, 395-397, 405-406;
Ex. G at 68) Sparky also attempted to grab Complainant's
crotch area when she was in the packing plant after she had
torn a hole in her plastic clothes covering. (Tr. 230-231;
Ex. G at 68)
18. These incidents made Complainant feel very ashamed,
degraded, cheap and dirty. (Tr. 225, 229, 263-264; Ex. G at 71)
Complainant no longer enjoyed her job and started to dread going
to work. (Tr. 229, 234) After some of these incidents
Complainant became so upset she would not go to work the next
day or next few days just to avoid Sparky. (Tr. 262; Ex. G at
90-91)
19. Complainant also observed or heard about Sparky's
offensive and unwelcome conduct towards other female employees
of HFE. Such conduct included the following:
a) On several occasions Complainant saw Sparky look over
the bodies of female HFE employees from head to toe. (Tr.
248-249)
b) Shortly after Complainant began employment with HFE,
Kalei Peterson, one of the HFE secretaries, told
Complainant that Sparky once tried to kiss her and that she
felt uncomfortable when he was around. (Tr. 93-95, 250)
Complainant also noticed that Ms. Peterson would move away
from Sparky when he came near her. (Tr. 251-252)
c) Complainant saw Sparky pull the women employees
towards him and try to kiss them on the mouth when giving
them gifts on birthdays, Valentine's and Mother's Day.
These employees would turn their heads so that he would
only kiss their cheeks. (Tr. 258; Ex. G at 77-78)
d) Jennie Mar (Sparky's sister) and Vivian Tamashiro, two
female HFE employees who worked in the packing plant, also
warned Complainant to watch out for Sparky, and that they
tried to avoid him. (Tr. 257-258)
e) On one occasion, Complainant saw Sparky walk toward
Teresita Domingo, a female packer, and try to grab
Ms. Domingo's waist area. Complainant saw Ms. Domingo step
off her stool and jump back from Sparky. (Tr. 254-255;
Ex. G at 79)
f) Complainant also saw Sparky try to grab at the waist
area of another woman employee known as "Nana". Nana told
Complainant she felt uncomfortable when Sparky was around.
(Tr. 255-256)
20. The final incident occurred on November 12, 1990.
Complainant had caught a small lizard near the packing area. She
went to the secretaries' office to get a container to put it in.
Sparky was in the packing area picking up flowers for delivery.
He went to the secretaries' office, approached Complainant from
behind and asked if he could see the lizard too. Complainant
thought that the person behind her was Robert Niimi. She turned
around, holding the lizard in one hand and a cup in the other
hand. Sparky then grabbed and squeezed Complainant's crotch
area. Complainant slapped Sparky's arm away with one of her
hands and said something like "Don't touch me". Complainant
then left the secretaries' office and went back to the packing
area. (Tr. 103-105, 273-277, 421-433; Ex. G at 81-88) Sparky
showed Ms. Peterson a bruise on his arm which he said
Complainant had inflicted and then walked out. (Tr. 103) At
the packing table, Complainant decided that she could not take
Sparky's conduct any longer. A short time later, she went
outside to the window near Ms. Peterson's desk and told
Ms. Peterson that Sparky had touched her private parts.
Complainant asked Ms. Peterson to call Toby Mahu to take her
home. Throughout this discussion, Complainant was sobbing. She
was sobbing so hard she could not even state Toby's telephone
number. She then walked home. (Tr. 104, 277-279, 281) Soon
afterwards, Ms. Peterson reported this incident to Robert Niimi.
(Tr. 104, 664-665; Ex. 32 at 22)
21. Complainant thereafter did not return to work at HFE.
Sparky's offensive conduct towards Complainant forced her to
quit. (Tr. 285)
22. Aside from the grabbing incident near the van and the
"lizard" incident, Complainant did not talk to any other HFE
employees about Sparky's offensive conduct and tried not show
how upset she was after each incident. This was Complainant's
way of trying to keep up her self esteem at work and her way of
maintaining her ability to work. (Tr. 266; Ex. G at 71)
23. Complainant attempted to indirectly discuss Sparky's
conduct with Robert and Richard Niimi by asking them on separate
occasions why Sparky touched the ladies the way he did.
However, she did not tell Robert or Richard Niimi about any
incidents of Sparky's offensive conduct towards her.
Complainant liked Robert and Richard Niimi because they were
always respectful towards her and treated her well, and she felt
uncomfortable informing them of their father's conduct. She
also did not report Sparky's conduct to them because she felt
ashamed about the incidents. (Tr. 266-270, 597-598; Ex. G at 73-
78, 101)
24. Both Robert and Richard Niimi saw Sparky put his hand
or arm around the shoulders of other female employees, saw him
kiss female employees when he gave them gifts, and knew that
Sparky told jokes involving sex to both male and female HFE
employees during work hours. (Tr. 618-622, 635, 694-698; Ex.
31a at 23-29; Ex. 31b at 75-76) However, except for the
"lizard" incident, both Robert and Richard Niimi did not know
about Sparky's other offensive conduct towards Complainant.
(Tr. 596-597, 661-663; Ex. 32 at 20)
25. After hearing about the "lizard" incident, Robert
Niimi spoke to Sparky about the incident. He also made some
kind of effort to contact Complainant to have her come into his
office and discuss what happened. At that time, Complainant did
not have a phone in her home, which is located only 1-1/2 miles
away from HFE by car, and Robert Niimi did not attempt to go to
her home to talk with her or leave her a message. (Tr. 435,
699-700; Ex. 31b at 88-89; Ex. 32 at 26, 47)
26. By November 1990, the HFE flower fields became
infected with anthurium blight. At one time HFE grew about 18
acres worth of anthurium flowers. Because of the blight, by
November 1990 HFE grew only about three acres worth of
anthuriums. (Tr. 649, 654)
27. Sometime during 1990, Robert and Richard Niimi began
laying off some of the HFE field worker employees because of the
decreased acreage in production. Their decision to lay off
certain workers was generally based on: a) the dependability of
the worker; b) whether the worker had alternate employment
opportunities and c) the financial situation of the corporation
at the time. (Tr. 654, 665-667, 701-703)
28. After Complainant's first 1-1/2 years of work at HFE,
Robert Niimi noticed that she was absent from work approximately
1-2 times per week. When she was present at work, however,
Robert Niimi considered Complainant's work performance
satisfactory. A few weeks before the "lizard" incident, Robert
Niimi verbally informed Complainant that if her attendance
didn't improve, he would have to let her go. (Tr. 648, 654-655;
Ex. 31b at 63-64, 68; Ex. 32 at 12)
29. Prior to being subjected to Sparky's sexual conduct,
Complainant had no pre-existing emotional difficulties. She had
been a sociable person who enjoyed going to the beach, the
library and shopping with her friends. (Tr. 264-265, 311; Ex.
G at 93-94)
30. Sparky's conduct caused Complainant to feel dirty,
degraded and ashamed. She felt she didn't belong in a crowd of
people and became withdrawn. She had no social life. She
became edgy, couldn't concentrate and had difficulty sleeping at
night. Right after the "lizard" incident, Complainant felt
suicidal. She didn't want to be around anyone. She stayed in
her room by herself for a few days. Then she packed some food
and water and went to a secluded beach in Keaukaha where she
lived alone out of her jeep for two months. (Tr. 263-266, 282,
285-290, 292-299; Ex. G at 92)
31. On July 1, 1991 Complainant filed a claim for workers'
compensation benefits for emotional injuries resulting from
sexual harassment at HFE. In a decision issued on February 19,
1992, the Director of the Disability Compensation Division,
Department of Labor and Industrial Relations, State of Hawaii,
found Complainant to be temporarily and totally disabled due to
emotional injury caused by sexual harassment which occurred on
November 12, 1990. The Director ordered HFE to pay for
Complainant's medical care, services and supplies, as well as
weekly compensation of $153.34 for temporary total disability
beginning July 4, 1991. (Ex. 18 attached to Complainant's [sic]
Amended Pre-Hearing Conference Statement dated 8-25-92)
32. Complainant first sought medical help also on July 1,
1991. (Exs. 15, 16) In October 1991, Dr. Sally Hildebrand,
Complainant's treating psychologist, conducted a mental status
evaluation and a Minnesota Multiphasic Personality Inventory
test on Complainant. (Ex. 15) Based on these, Dr. Hildebrand
diagnosed Complainant as having major depression, post-traumatic
stress disorder, anxiety disorder, a tremendous loss of self
esteem, loss of self confidence, inability to cope, suicidal
thoughts, and concentration and memory impairment. In November
1991, Dr. Robert Bloomgarden, a psychiatrist, conducted a
mental status and medical evaluation of Complainant. (Ex. 17)
Dr. Bloomgarden observed her as being "almost frozen in place"
and diagnosed her as having extraordinarily severe major
depression and post-traumatic stress disorder, as well as very
low self esteem, low self confidence, feeling unable and afraid
to work and being at a high risk for suicidal behavior.
Dr. Bloomgarden also found that Complainant had been through a
tremendous amount of pain and was extremely withdrawn, fatigued
and exhausted. Dr. Ernest Bade, Complainant's medical doctor,
found that Complainant had the following symptoms: insomnia,
tearfulness, feelings of depression and worthlessness, motor
retardation and inability to concentrate and make decisions.
(Ex. 16)
33. Based on their evaluations of Complainant,
Doctors Hildebrand, Bloomgarden and Bade concluded and I find
that Complainant's condition dates back to and was caused by
Sparky's offensive conduct toward her.
34. From November 4, 1991 to May 3, 1992, Complainant was
treated by Dr. Hildebrand with weekly psychotherapy sessions.
From May to August 1992, Complainant was in session with
Dr. Hildebrand on an every other week or once a month basis.
From August 1992 until the hearing on this case held during
September 8-11, 1992, Complainant had sessions with
Dr. Hildebrand on an emergency as-needed basis. (Tr. 301-303;
Ex. 15) From October 25, 1991 Complainant has also been taking
medication (Trazadone and Xanax) to treat her depression and
insomnia, as prescribed by Doctors Bloomgarden and Bade. (Tr.
303-304; Exs. 16, 17)
35. Recently on August 29, 1992, Dr. Hildebrand diagnosed
Complainant as still having major depression, post-traumatic
stress disorder and anxiety disorder. Complainant's prognosis
is guarded. Dr. Hildebrand estimates that Complainant will need
to continue her treatment every other week for six to twelve
more months. (Ex. 15) Dr. Bade estimates that Complainant will
also need to continue taking medication for another six to
twelve months. (Ex. 16)
36. On or about the end of September 1991 the last two
field workers at HFE were laid off. On or about October 1991
HFE began leasing its fields to other growers. (Tr. 654, 701,
703)
37. HFE stopped operations on March 23, 1992 and filed
Chapter 7 bankruptcy on July 23, 1992. (Tr. 655-656)
38. Due to her total disability from emotional injuries
caused by Sparky's sexual conduct, Complainant was unemployed
from November 13, 1990 through December 1991. Since around
January 1992, Complainant has worked a few yard jobs, earning
approximately $100 total. (Tr. 293-294)


III. CONCLUSIONS OF LAW[3]
H.R.S. sec. 378-2(1)(A) makes it an unlawful discriminatory
practice for any employer to discriminate against an individual
in the terms, conditions or privileges of employment because of
sex. Hostile work environment sexual harassment is a violation
of the above statute. H.A.R. 12-46-109; see also Meritor
Savings Bank, FSB v. Vinson, 477 US 57, 91 L.Ed.2d 49, 106 S.Ct
2399, 40 EPD 36,159 at 42,577 (1986).

A. JURISDICTION
H.R.S. sec. 378-1 defines "employer" to mean
. . . any person, including the State or any of its
political subdivisions and any agent of such person,
having one or more employees, but shall not include
the United States.
The statute in turn defines "person" to mean one or more
individuals and includes, but is not limited to, partnerships,
associations, corporations, legal representatives, trustees,
trustees in bankruptcy, receivers, or the State or any of its
political subdivisions.
1. Respondent HFE
During Complainant's employment at HFE, Respondent HFE was
a corporation with one or more employees. I therefore conclude
that HFE is an employer under H.R.S. sec. 378-l and is subject to
the provisions of H.R.S. Chapter 378.
2. Respondent Masami Sparky Niimi
Sparky argues that he was not an agent of HFE during
Complainant's employment at HFE and is personally not subject to
Chapter 378 because : 1) the definition of "employer" in H.R.S.
sec.378-1 requires an agent to also employ one or more persons; or
alternatively, 2) he did not exercise authorized, significant
control over Complainant. See, Respondent Niimi's Hearing Brief
at 8-11.
Sparky's first argument is without merit. A plain reading
of the definition of "employer" as found in sec. 378-1 and its
legislative history show that an agent is not required to employ
one or more persons.
The fundamental starting point for interpreting a statue 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 intention and to
implement that intention to the fullest degree. Briones, supra,
State v. Tupuola, 68 Haw. 276 (1985). Such intention is
primarily obtained from the language of the statute itself,
although legislative history may be considered. Briones, supra,
Eline, supra.
The phrase "including the State or any of its political
subdivisions and any agent of such person" is parenthetic and
modifies the preceding phrase "any person". See, 2A Sutherland
Stat. Const. sec. 47.15 (5th Ed. 1992); Strunk and White, The
Elements of Style, 3rd Ed. 1979 at 2. Therefore the phrase
"having one or more employees" only modifies the first phrase
"any person" and does not also modify the words "any agent of
such person". Sutherland, supra, at sec. 47.33.
The legislative history of this definition confirms this
reading. H.R.S. Chapter 378 was originally enacted in 1963 as
Act 180. Act 180 did not contain a definition of the term
"employer". In 1964 the statute was amended, in part to add
definitions for various key terms such as "employer" in order to
avoid administrative and legal difficulties. See, Act 44, L.
1964; House SCRep. 455, 1964 House Journal at 381; Senate SCRep.
442, 1964 Senate Journal at 504. Act 44 L. 1964 defined
"employer" to mean
. . . any person having one or more persons in his
employment, and includes any person acting as an agent
of an employer, directly or indirectly.
This definition clearly did not require an agent to also have
one or more employees. The statute was again amended in 1981 to
its present wording as stated above. See, Act 94, L. 1981.
However, the purpose of this amendment was merely to extend
coverage of Chapter 378 to state and county government
employees; it was not amended to additionally require agents to
have one or more employees. House SCRep. 549, 1981 House
Journal at 1166; Senate SCRep. 653, 1981 Senate Journal at 1195;
Senate SCRep. 1109, 1981 Senate Journal at 1363. While
grammatically not as clean as its pre-1981 wording or the
federal definition of "employer" found in 42 U.S.C. sec. 2000e(b)
[4], sec. 378-1 does not require an agent to have one or more
employees.
Sparky's second argument also fails because the facts show
that Sparky was an agent of HFE during Complainant's employment.
H.R.S. Chapter 378 and the Administrative Rules do not define
the term "agent". Hawaii appellate courts have also not defined
the term. However, H.A.R. 12-46-109(c) states that the
Commission
. . . will examine the circumstances of the particular
employment relationship and the job functions
performed by the individual in determining whether an
individual acted in either a supervisory or agency
capacity.

Hawaii caselaw similarly holds that an agency relationship
may be implied from the actions of the parties or surrounding
circumstances. Wong Wong v. Skating Rink, 24 Haw. 181, 192
(1918); Ottensmeyer v. Baskin, 2 Haw.App. 86, 89 (1981) (despite
express language in franchise agreement disclaiming agency,
actual relationship with alleged agent must be considered); Kapu
v. McInerny, 6 Haw. 263, 266 (1880) (whether a person pays a
salary to another has no effect on the question of agency).
Because H.A.R. 12-46-109(c) is nearly identical to the EEOC
Regulations on Sex Discrimination[5], federal caselaw on this
issue is also instructive. The federal courts have looked to
common law agency principles in applying these guidelines.
Meritor Savings Bank, FSB v. Vinson, 40 EPD 36, 159 at 42, 581;
Sparks v. Pilot Freight Carriers, Inc., 830 F.2d 1554, 44 EPD
37,493 at 49,459 (llth Cir. 1987). They have also construed the
term "agent" liberally to effectuate the purposes of Title VII.
Hamilton v. Rodgers, 791 F.2d 439, 442, 40 EPD 36,115 (5th Cir.
1986); Mason v. Twenty-Sixth Judicial Dist. of Kansas, 670
F.Supp. 1528, 1532 (D.Kan. 1987). Accordingly, the courts have
held that an individual who serves in a supervisory position and
exercises significant control over a plaintiff's hiring, firing
or conditions of employment qualifies as an agent. Kauffman v.
Allied Signal, Inc., 61 U.S.L.W. 2129, 59 EPD 41,642, 1992 WL
167531 at 7 (6th Cir. 1992); Paroline v. Unisys Corp., 879 F.2d
100, 104 (4th Cir. 1989), vacated on other grounds, 900 F.2d 27,
53 EPD 39,833 (4th Cir. 1990). A person may exercise such
supervisory authority even though the company has formally
designated another as the plaintiff's supervisor so long as
company management approves or acquiesces in that person's
supervisory control. Paroline, supra. Therefore, a company
director or officer who participates in discriminatory conduct
can qualify as an "agent" and "employer" under Title VII.
Hendrix v. Fleming Companies, 650 F.Supp. 301, 302-303 (D. Minn.
1986); see also, Thompson v. Intern. Ass'n of Machinists, 580
F.Supp. 662, 668-669 (D.C. 1984); Watson v. Sears, Roebuck Co.,
742 F.Supp. 353, 357 (M.D.La. 1990).
Pursuant to the above, courts have found individuals in the
following situations were or could be considered "agents". In
Thompson, four individual officers of the International
Association of Machinists who recommended an assistant
director's discharge or made the final discharge decision were
found to be employers. Thompson, supra. In Hamilton, the court
found defendants to be agents of the Houston fire department
because they had control over the plaintiff's car and shift
assignments, and had filed critical reports in his personnel
file. 791 F.2d 439, 442-443. Similarly, in Maturo v. National
Graphics, the court found a supervisor who assigned tasks and
instructed plaintiff in the operation of folding machines an
agent of his employers. 52 EPD 39,675 at 61,289 (D. Conn.
1989). In Mason, the court found that supervisors who rated a
court services officer's work performance and controlled her
work could be agents. Mason, supra. A supervising physician
who established plaintiff's medical assistant job
responsibilities and influenced her working conditions can be
deemed an employer. Howard v. Temple Urgent Care Center, 53 BNA
1416, 1417 (D.Conn. 1990). In Tafoya v. Adams, the court found
a parks department supervisor who had control over plaintiff's
work conditions and had recommended plaintiff's termination an
agent of the city of Denver. 612 F.Supp 1097, 38 BNA 630, 636
(D. Colo. 1985).
The evidence in the present case shows that Sparky likewise
served in a supervisory position over Complainant and exercised
significant control over her work conditions at HFE. Robert
Niimi, Complainant, and Ivan Farinas testified that with HFE
management's approval: a) Sparky was out in the HFE fields
approximately 2-3 times per week; b) he would tell Complainant
where to weed and spray, how to clip flowers, mix pesticides,
repair the sarans, and use and repair the masks; and c)
Complainant would follow his directions. (Tr. 42-47, 61, 381,
671-672) In the packing plant, Sparky taught Complainant how to
grade and pack flowers. (Tr. 45)
Sparky argues that he was not necessarily acting as an
agent of HFE every time he appeared on the premises and at the
time of each alleged harassing act. He claims that many times
he was merely paying social visits to certain HFE employees.
However, the evidence shows that HFE gave Sparky the authority
to supervise Complainant and other employees whenever he came on
to the premises. Robert and Richard Niimi testified that they
needed and approved of Sparky's help; they also instructed the
employees to follow Sparky's directions even if his directions
conflicted with their own. (Tr. 44-45, 469, 489, 591-592, 671-
675) Furthermore, the evidence shows that Sparky was working
with and/or supervising Complainant at least during the times
when he: asked her to wait before bending down, put his hands or
arms on her shoulders, tried to kiss her, gestured towards her
crotch area, and during the "lizard" incident. (Tr. 90-91, 186,
247, 381-383, 386, 739-741)
Based on the foregoing, I conclude that Sparky was an agent
of Respondent HFE during Complainant's employment and at the
time the harassing acts occurred. He is therefore an employer
under H.R.S. sec. 378-1.

B. Hostile Work Environment Sexual Harassment
H.A.R. 12-46-109 defines hostile work environment sexual
harassment as
. . . unwelcome sexual advances, requests for sexual
favors, and other verbal or physical conduct or visual
forms of harassment of a sexual nature. . . when. . .
that conduct has the purpose or effect of unreasonably
interfering with an individual's work performance or
creating an intimidating, hostile or offensive working
environment.
Because H.R.S. sec. 378-2 and H.A.R. 12-46-109(a) are very
similar to Title VII provisions[6] and EEOC regulations[7]
pertaining to hostile environment sexual harassment, federal
caselaw from this circuit is instructive in formulating the
elements of such a claim.[8] Thus, the Executive Director must
prove by the preponderance of the evidence that:
(1) The complainant was subjected to sexual advances, requests
for sexual favors or other visual, verbal or physical
conduct of a sexual nature. Ellison v. Brady, 924 F.2d
872, 55 EPD 40,520 at 65,624 (9th Cir. 1991); Jordon v.
Clark, 847 F.2d 1368, 46 EPD 38,009 at 52,245 (9th Cir.
1988).
(2) The conduct was unwelcome. Ellison, supra ; Jordan, supra.
The conduct must be unwelcome in the sense that the
complainant did not solicit or incite it, and in the sense
that the complainant regarded the conduct as undesirable or
offensive. Henson v. City of Dundee, 682 F.2d 897, 29 EPD
32,993 at 26,707 (llth Cir. 1982).
(3) The conduct was sufficiently severe or pervasive to alter
the conditions of employment, such as having the purpose or
effect of unreasonably interfering with an individual's
work performance or by creating an intimidating, hostile or
offensive working environment. H.A.R. 12-46-109(a)(3);
Ellison, supra; Jordan, supra; Meritor Savings Bank,
supra, at 42,579; Henson, supra.
The required showing of severity or seriousness of the
conduct varies inversely with the pervasiveness or
frequency of the conduct. Ellison, supra, at 878.
Therefore, a single act can be sufficiently severe under
some circumstances to constitute unreasonable interference
with an individual's work performance, or to create an
intimidating, hostile, or offensive work environment. Id.;
see also, EEOC Policy Guidance No. N-915.050 (March 19,
1990) ("a single unwelcome physical advance can seriously
poison the victim's work environment.") Repeated
incidents, however, create a stronger claim of hostile work
environment, with the strength of the claim depending on
the number of incidents and the intensity of each incident.
Id.
In addition, the perspective to be used in evaluating
the severity or pervasiveness of the harassment is that of
the victim. Ellison, supra, at 878-879; Austen v. State of
Hawaii, 759 F.Supp 612, 56 EPD 40,760 at 67,041 (D. Haw.
1991). Because the complainant in the present case is a
woman, this element is met if a reasonable woman would
consider such conduct sufficiently severe or pervasive to
unreasonably interfere with work performance or create an
intimidating, hostile or offensive environment.
The establishment of the above prima facie case of hostile
work environment sexual harassment constitutes direct evidence
of intent to discriminate. Katz v. Dole, 709 F.2d 251, 255, 31
BNA 1521, 1523-1524 (4th Cir. 1983). The burden shifting
formula enunciated in McDonnell Douglas Corp. v. Green, 411 U.S.
792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), which is used to
determine discriminatory intent in Title VII disparate treatment
cases, is therefore inapplicable to this case.[9] Id. See
also, Price Waterhouse v. Hopkins, O'Conner concurring opinion,
490 U.S. 228, 109 S. Ct. 1775, 1801-1802, 104 L.Ed.2d 268, 49
EPD 38,936 (1989); Trans World Airlines, Inc. v. Thurston, 469
U.S. 111, 121, 105 S.Ct. 613, 83 L.Ed.2d 523, 35 EPD 34,851 at
35,688 (1985).
Thus, once a complainant makes out the above prima facie
case of hostile environment sexual harassment, the burden of
proof shifts to the employer to rebut such showing by: 1)
proving that such conduct did not take place; 2) showing that
the conduct was not unwelcome; or 3) showing that such conduct
was trivial or isolated. Katz v. Dole, 31 BNA 1521, 1524.

1. Whether the Sexual Conduct Occurred
In the present case, the Executive Director has shown by a
preponderance of the evidence that Sparky subjected Complainant
to verbal, visual and physical sexual conduct. The evidence
establishes that Sparky made numerous sexual comments to
Complainant about her body, what he wanted her to wear and about
other female employees. More seriously, on several occasions
Sparky put his arms around Complainant's shoulders, kissed and
attempted to kiss her, and grabbed and attempted to grab her
breast and crotch areas. Complainant also observed or heard
about Sparky's sexual conduct towards other female employees.
Sparky denies that he engaged in such conduct and argues
that Complainant's testimony is not credible because many of the
documents used by Complainant to recall the dates of certain
incidents appear to be fabricated. Specifically, Sparky argues
that Complainant did not make the calendar entries on Exhibits
8, 9, 12 and 13 on or near these dates, but made them some time
after January 23, 1992 when the Enforcement Attorney informed
her that these were the dates of absences alleged by HFE. See,
Respondent Niimi's Hearing Brief at 1-5.
The evidence is compelling that the entries were not made
at or about the time the events occurred. Complainant testified
that these were the only calendar entries she made pertaining to
harassing incidents and ensuing absences; coincidentally they
are the same exact dates of absences alleged by HFE. (Tr. 323-
324; Ex. 28) In addition, although the incidents occurred over
a three month period, they appear to be written in the same
black ball point ink. This is unlikely, given Complainant's
testimony that a pen was not attached to the calendar book and
that she routinely used all different kinds of pens. (Tr. 340-
341, 356-357) Complainant could also not explain why she
scratched out the printed dates for September 30, November 22,
and November 23, and replaced them with the dates and entries of
September 19, November 6 and November 7, respectively. (Tr.
332-334, 336-338; back of Ex. 9, Ex. 13) Finally, in her cover
letter sent with these exhibits to the Enforcement Attorney,
Complainant states "[t]o the best of my knowledge these things
that happen on this dates are true. . ." and that she was
"trying to get it all together" but it was hard for her to
"pinpoint anything, or any dates". (Ex. H) Significantly, she
does not state that the exhibits were entries that she actually
made on or near those calendar dates.
Exhibits 4, 5, 6, 10 and 36 are also questionable.
Exhibits 6 and 10 are each written with two different pens.
Complainant's explanation for this was contradictory and
confused. (Tr. 356-358) In terms of Exhibit 4, on direct
examination Complainant verified that it was written on about
April 17, 1990. (Tr. 205-210) However, on cross examination,
Complainant was certain that Exhibit 4 was not made in April
1990 but she could not explain why the dates "4-17 though 4-19,
1990" were written in the same color ink right above the entry.
(Tr. 363-366) Complainant testified that the two long entries
on Exhibit 5 were written on the back side of the filler paper
while the paper was clipped front side up on her clip board.
(Tr. 353-355) This is unlikely since it would be physically
difficult to do. On Exhibit 36, Complainant testified that she
wrote the words "Sparky, & Richard" "Hired" and circled the date
December 22, 1988 at the same time with the same pen after she
was hired at HFE. However, a close examination of Exhibit 36
shows that the word "Hired" appears to be written in black felt
pen ink, while the words "Sparky, & Richard" and the circle are
made in black ball point ink. (Tr. 374-378; Ex. 36)
While I find Exhibits 4, 5, 6, 8, 9, 10, 12, 13 and 36 not
reliable evidence of the dates of those events, I do not find
them to be complete fabrications of what occurred. Instead, I
find these exhibits to be reconstructions of what Complainant
recalled happening on those dates. This is because I find
Complainant's testimony about the actual occurrence of these and
other incidents of Sparky's sexual conduct credible and
persuasive. Independent of these exhibits, Complainant
described clearly and with some detail the location and
circumstances of each incident. Furthermore, her testimony as
to each of the incidents was consistent throughout the hearing
and was for the most part consistent with the testimony given at
her deposition. Although Complainant could not remember the
exact sequence and dates of the incidents, this is plausible
given the number of repeated incidents which occurred over an
approximately two year period and her current memory impairment.
I find Complainant's testimony credible also because
portions of it were corroborated by other witnesses. Kalei
Peterson testified that Sparky did pull female HFE employees
towards him and tried to kiss them and put his tongue in their
mouths when he gave them birthday, Valentine's and Mother's Day
gifts, that she did warn other female employees during lunch and
break times about Sparky's kissing, and that Complainant might
have been present during those discussions. (Tr. 92-96, 139)
Ms. Peterson also witnessed Sparky putting his hand or arm
around Complainant's shoulders and that at times Complainant
didn't like it. (Tr. 90-91; Ex. C) Ms. Peterson also heard
Teresita Domingo talking about being embarrassed about an
incident involving Sparky. (Tr. 101, 114-115)
Ivan Farinas, a former HFE field worker, witnessed Sparky
put one hand on Complainant's shoulder and gesture towards
Complainant's crotch area with his other hand. Mr. Farinas also
heard Sparky ask Complainant which of the male field workers was
going home with her that day. (Tr. 381-384) Despite being a
long time family friend, I find Mr. Farinas a credible witness,
because in relating these events he candidly disclosed that
Sparky appeared to be playing and joking around.
Richard Carlson, another former field worker, witnessed
Sparky putting his hand on Complainant's breast when Sparky
attempted to embrace her while she near the van. He also saw
Sparky attempt to kiss Complainant in the fields. (Tr. 472-477,
496-497) While Mr. Carlson appeared tentative when describing
Sparky's sexual conduct towards Complainant, I find that this
was because he was embarrassed about the incidents. I also find
Mr. Carlson to be a credible witness because although his other
testimony regarding the taking of unusable flowers and his
termination from HFE was also made in a hesitant and defensive
manner, it was later confirmed by the testimony of Richard
Niimi. (Tr. 470-472, 484-487, 612-615)
Other witnesses also corroborated Complainant's version of
the "lizard" incident. Kalei Peterson and Roxann Kagawa heard
Sparky ask if he could see the lizard. (Tr. 103; Ex. C; Ex. D)
Ms. Peterson saw Complainant turn around, push Sparky's arm away
and tell him not to touch her. Ms. Peterson also testified that
Sparky showed her a bruise on his arm that he claimed
Complainant had inflicted. She also witnessed Complainant
sobbing outside the office window and stating that Sparky had
touched her private parts. (Tr. 103-105, 124-126; Ex. C)
In contrast, I find Sparky's testimony denying these events
not credible. Sparky testified that he could not have engaged
in such conduct with Complainant because he was ill and hardly
ever in the HFE fields or packing plant. (Tr. 720-721, 725-726,
755; Ex. 31c at 38-39) This conflicts with the testimonies of
Robert Niimi, Richard Niimi, Kalei Peterson, Ivan Farinas and
Richard Carlson, who all confirmed that Sparky was present in
the HFE fields and packing plant on the average of 2-3 times per
week, and that they had seen him talking to Complainant on
several occasions. (Tr. 87-88, 123-124, 382, 386, 473, 489-490,
615, 671-675) Sparky himself testified that he often talked to
the field workers working in the anthurium field adjacent to his
house, and that he often walked from his house to his orchid
greenhouse. (Tr. 721, 748, 755, 782-783) This is the field and
walking route where many of the incidents occurred and shows
that he was in the vicinity of Complainant. Sparky also denied
ever putting his hand or arm around Complainant's or any other
female employees' shoulders aside from patting Teresita Domingo
to thank her for giving him papayas. (Tr. 728-732; Ex. 31c at
39-40) Yet Richard Niimi, Jennie Mar, Kalei Peterson, and Ivan
Farinas all stated that they saw Sparky put his hand or arm
around Complainant's and/or other female employees' shoulders.
(Tr. 90-91, 382; Ex. 31b at 75-76, Ex. 31d at 14, 26-28; Ex. C)
Sparky also testified that he never kissed any female employees
when giving them gifts and stated that it was certain female
employees who hugged him when it was his birthday. (Tr. 729,
732-733) However, Richard Niimi, Kalei Peterson and
Complainant saw Sparky kiss female employees when giving them
birthday, Valentine's and Mothers' Day presents. (Tr. 92-96,
139, 258, 618-620; Ex. 31a at 23-25) Finally, in recalling the
"lizard" incident, Sparky testified that neither he nor
Complaint exchanged any words, that Complainant, without
provocation, suddenly turned around, grabbed his wrists with
both of her hands and started to twist his arms and swing him
from side to side. Sparky testified that he got scared, broke
free from Complainant and ran out of the office. (Tr. 739-742,
765-771) Sparky's account of the "lizard" incident completely
conflicts with the testimonies of Ms. Peterson, Ms. Kagawa and
Complainant. It is also implausible in light of his testimony
that Complainant had never grabbed him before and had no reason
to suddenly turn and grab him that day. (Tr. 789-791)
The affidavits submitted by Sparky are also not credible
evidence that the acts did not occur. The affidavit of Alfredo
Cabaccang states that he did not see Sparky touch, grab or kiss
Complainant, or attempt to do these things. (Ex. A) However,
Mr. Cabaccang's affidavit does not state that Complainant never
talked to him about the breast grabbing incident, or that Sparky
never told him to "eat" Complainant's "pussy". In terms of the
"lizard" incident, while both Ms. Peterson and Ms. Kagawa state
in their affidavits that they did not see Sparky grab
Complainant's crotch area (Ex. C and D), later testimonies of
Ms. Peterson, Robert Niimi and Complainant show that this was
because Complainant's back was to them. (Tr. 103, 429, 665; Ex.
G at 87) Similarly, while Jennie Mar states in her affidavit
that Complainant did not appear to be upset or crying after
returning to the packing area (Ex. E), Ms. Mar later clarifies
in her deposition that she had only glanced up at Complainant
upon her return, and that Complainant thereupon went back to
work in an area not visible to Ms. Mar. (Ex. 31d at 57-58)

2. Whether The Sexual Conduct Was Unwelcome
The Executive Director has also shown by a preponderance of
the evidence that the conduct was unwelcome. Complainant
testified that after each incident she would push Sparky away
and tell him to leave her alone or not to touch her. Sparky
would respond by laughing or smirking and then walking away.
During one incident in which Sparky tried to grab Complainant's
crotch area, Ivan Farinas observed that although Sparky appeared
to be "playing", Complainant was serious, had blocked Sparky's
attempt to grab her crotch area and was upset after the
incident. (Tr. 382-383, 386-387, 396-397) Richard Carlson
testified that Complainant would be upset or in a bad mood after
Sparky touched her. (Tr. 472-474) Kalei Peterson testified
that during the "lizard" incident, Complainant had pushed
Sparky's arm away and told him not to touch her. (Tr. 103; Ex.
C) Complainant was clearly offended by Sparky's conduct and no
evidence was presented to show that Complainant solicited,
incited or welcomed such conduct.

3. Whether The Conduct Created An Intimidating, Hostile
Or Offensive Work Environment
The record is replete with evidence of Sparky's repeated,
continuous and unwelcome verbal, visual and physical sexual
conduct towards Complainant and other HFE female employees.
This conduct affected Complainant's emotional well-being and her
ability to work. She became depressed, lost sleep, dreaded
going to work and called in sick to avoid being near Sparky. I
conclude that a reasonable woman would consider Sparky's conduct
sufficiently severe and pervasive to create a hostile,
intimidating and offensive work environment.

C. CONSTRUCTIVE DISCHARGE
Federal caselaw from this circuit is also instructive in
formulating the elements of a constructive discharge claim.[10]
Constructive discharge occurs when, looking at the totality of
the circumstances, a reasonable person in the employee's
position would have felt that she was forced to quit because of
intolerable and discriminatory working conditions. Watson v.
Nationwide Ins. Co., 823 F.2d 360, 361 (9th Cir. 1987); Howard
v. Daiichiya-Love's Bakery, Inc., 714 F. Supp. 1108, 1112 (D.
Haw. 1989). This test is an objective one and does not involve
showing employer intent to force the complainant to resign.
Watson, supra.
In general, a single isolated instance of employment
discrimination is not sufficient to support a finding of
constructive discharge. Watson, supra. A complainant must
instead show some aggravating factors, such as a continuous
pattern of discriminatory treatment. Id.
The Executive Director has shown by a preponderance of the
evidence that Complainant was forced to quit her job because of
Sparky's sexual conduct. After almost every incident,
Complainant pushed or shoved Sparky away and told him to leave
her alone or to stop touching her. However, Sparky continued to
harass Complainant and other female HFE employees throughout the
nearly two year period that she was employed at HFE. Respondent
HFE did nothing to prohibit or remedy the sexual conduct of
Sparky that it was aware of. It did not investigate or
determine whether Sparky's jokes about sex to HFE female
employees or his habit of putting his hand or arms around their
shoulders or kissing them when giving gifts were offensive to
them. Even after it learned about the "lizard" incident, HFE
failed to contact Complainant to investigate or remedy the
situation. Given these circumstances, I conclude that a
reasonable person in Complainant's position would have felt that
she was forced to quit because of intolerable and discriminatory
working conditions and that Respondents HFE and Masami Sparky
Niimi constructively discharged Complainant.

D. LIABILITY
1. Respondent HFE
An employer is responsible for its acts and those of its
agents and supervisory employees regardless of whether the acts
were authorized or even forbidden, and regardless of whether the
employer knew or should have known of their occurrence. H.A.R.
12-46-109(c). Because Sparky was an agent of HFE during
Complainant's employment, Respondent HFE is liable for Sparky's
conduct towards Complainant.
2. Respondent Masami Sparky Niimi
Sparky, as an agent of HFE, is an employer under H.R.S.
sec. 378-1. Therefore, pursuant to H.A.R. 12-46-109(c), he is
personally liable for sexually harassing Complainant.
I therefore determine that Respondents HFE and Masami
Sparky Niimi are liable for sexually harassing and
constructively discharging Complainant.

E. REMEDIES
The Executive Director requests that Respondents be ordered
to pay Complainant back pay and compensatory and punitive
damages. 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. The
Executive Director also seeks to have Respondents publish the
results of the Commission's investigation in a press statement
provided by the Commission in at least one newspaper published
in the state and having general circulation in Hilo, Hawaii, and
to have Respondents post notices in a conspicuous place. The
Executive Director also seeks its costs for transcribing and/or
copying of depositions.

1. Back Pay
Back pay encompasses the amount Complainant could have
earned if she continued to work for Respondent HFE but for the
constructive discharge. Respondents have the burden to prove
any offsets to Complainant's expected earnings.

The evidence shows that Respondent HFE stopped payment of
Complainant's wages on November 12, 1990, the date Complainant
quit her job. Complainant was paid $5.50 per hour and worked 40
hours per week. (Tr. 692; Ex. 31b at 67) However, Complainant
was also paid $11 per hour approximately 12 hours per month for
spraying. (Tr. 637-638) Therefore, Complainant's average
weekly wages were $230.00. See also, DLIR Disability
Compensation Decision dated 2-19-92 attached as Ex. 18 to
Complainant's [sic] Amended Pre-hearing Conference Statement
dated 8-25-92).
Sparky argues that Complainant's hours should be offset by
her absenteeism of 1-2 days per week. However, the evidence
shows that her absenteeism was due to Sparky's harassing
conduct, and that when Complainant was present at work, her work
performance was satisfactory. Sparky also argues that the
outside limit for an award should be September, 1991 when the
last two field workers were laid off. Robert Niimi testified
that the last two field workers were laid off around the end of
September, 1991. Given the factors used by Robert Niimi to
decide which workers to lay off, I determine that HFE would have
employed Complainant until the end of September 1991. The
record also shows that Complainant did file for and did receive
weekly workers' compensation disability payments. Disability
payments are made by an employer's insurance carrier as a
percentage of an employee's wages, and may be offset against
back pay awards. Austen v. State of Hawaii, 56 EPD 40,760 at
67,042.
I therefore determine that Respondent HFE should be ordered
to pay Complainant back pay in the amount of $230 per week for
the period beginning November 13, 1990 and ending September 30,
1991, a total of 46 weeks. This computes to a total amount of
$10,580.00 in back pay. This amount should be offset by any
amounts Complainant received in weekly workers' compensation
disability payments for the period between July 4, 1991 and
September 30, 1991.

2. Compensatory Damages
Pursuant to H.R.S. sec.368-17, the Commission has the
authority to award compensatory damages for any pain, suffering,
embarrassment, humiliation or emotional distress[11] Complainant
suffered as a result of Respondent Masami Sparky Niimi's
harassment.
The evidence shows that Complainant suffered considerable
embarrassment, humiliation and emotional distress from Sparky's
sexual harassment. Prior to the harassment, Complainant was a
friendly, sociable person who was always going out with her
friends and was a competent worker who took pride in doing her
job well. For nearly two years, Sparky's conduct towards
Complainant made her feel dirty, cheap, ashamed and not fit to
be around other people. She became extremely withdrawn, had
low self-esteem, self-confidence and had difficulty sleeping
and eating. She became suicidal after the "lizard" incident and
felt so badly about herself that she moved out of her house and
went to live alone on an isolated beach. After leaving HFE,
Complainant suffered and still suffers from anxiety disorder,
severe depression, and post-traumatic stress disorder. She has
been unable to function and work for the last two years. She
will continue to be totally disabled from her emotional injuries
for another six to twelve months. (Tr. 263-266, 285-299; Exs.
15, 16, 17)
Complainant's injuries were also observed in part by other
witnesses. Ivan Farinas testified that Complainant became so
upset after Sparky put his hand on her shoulder and gestured
towards her crotch area that he offered to talk to Sparky to put
a stop to it. (Tr. 384) Richard Carlson observed that
Complainant became upset and was in a bad mood when Sparky
touched her. (Tr. 472-474) Toby Mahu testified that towards
the end of her employment, Complainant became depressed and
would often lock herself in her room and cry. Ms. Mahu also
confirmed that after the "lizard" incident, Complainant left
their house and lived down at the beach. (Tr. 510-512)

The evidence also shows that Respondents did almost nothing
to rectify the harassing conduct. When Complainant shoved
Sparky away or told him to leave her alone or not to touch her,
he only laughed or smirked and then walked away. Although
Complainant made it clear that she did not welcome his conduct,
Sparky made no effort to curb his offensive behavior towards
her. Both Richard and Robert Niimi made no attempt to
investigate or remedy the sexual conduct of Sparky that they
knew of, such as his touching of other female employees'
shoulders, kissing female employees on the mouth when giving
gifts or telling jokes about sex. Robert Niimi did not make an
adequate attempt to investigate the "lizard" incident.
Considering these circumstances, I determine that $100,000 is
appropriate compensation for Complainant's injuries.[12]

3. Punitive Damages
H.R.S. sec. 368-17 also authorizes the Commission to award
punitive damages. Punitive damages are assessed in addition to
compensatory damages to punish a respondent for aggravated or
outrageous misconduct, and to deter the respondent and others
from similar conduct in the future. See, Masaki v. General
Motors Corp., 71 Haw. 1, 6 (1989).
The practice of awarding punitive damages is centuries old,
surviving because it continues to serve the useful purposes of
expressing society's disapproval of intolerable conduct and of
deterring such conduct. Id. at 7-8. Since its purposes are
punishment and deterrence, punitive damages are awarded only
when a respondent's wrongdoing has been intentional and
deliberate, and has the character of outrage frequently
associated with crime. Id. Accordingly, the inquiry focuses
primarily on the respondent's mental state and to a lesser
degree on the nature of his or her conduct. Id. at 7.
The penal character of punitive damages requires a standard
of proof more stringent than the preponderance of the evidence
standard generally employed in administrative hearings and civil
trials. Id. at 16. Therefore, the Hawaii Supreme Court has,
and I will utilize, the clear and convincing standard of proof
for punitive damages claims. Id. at 16.
In the present case, the Executive Director is therefore
required to show, by clear and convincing evidence, that
Respondents acted wantonly, oppressively or with such malice as
implies a spirit of mischief or criminal indifference to civil
obligations, or where there has been some wilful misconduct or
entire want or care which would raise the presumption of a
conscious indifference to consequences. Id. at 15-17.
Given the above, I conclude that the Executive Director has
failed to show, by clear and convincing evidence, that
Respondent HFE acted wantonly, maliciously or with a conscious
disregard for Complainant's rights. Complainant confirmed that
she did not inform either Robert or Richard Niimi about Sparky's
offensive conduct towards her. Both Robert and Richard Niimi
testified that they did not know of Sparky's sexual conduct
towards Complainant except for the final "lizard" incident.
Furthermore, while Robert Niimi's investigation of the "lizard"
incident was inadequate, he did question some employees and
Sparky about the incident and did make some attempt to contact
Complainant. (Ex. 31b at 88-89; Ex. 32 at 26, 47)
In contrast, I conclude that the Executive Director has
shown by clear and convincing evidence that Sparky acted
wantonly, wilfully and with a conscious disregard for
Complainant's right to work in an environment free of sexual
harassment. Besides making unwelcome verbal comments and
gestures, Sparky physically assaulted Complainant on numerous
occasions, grabbing her buttocks and breasts, kissing her on the
cheek or mouth, and grabbing her crotch area. His conduct
continued unabated for almost two years, despite Complainant's
clear distress and demands to leave her alone.
In determining the amount of punitive damages, I have
considered the following factors: 1) the degree of malice and
reprehensibility of Sparky's conduct; 2) Sparky's financial
situation; and 3) the amount of punitive damages which will have
a deterrent effect on Sparky in light of his financial
situation. See, Beerman v. Toro Mfg. Co., 1 Haw.App. 111, 119
(1980); Kang v. Harrington, 59 Haw. 652, 663-664 (1978). The
record shows that Sparky and his wife own a one acre parcel with
a home on it located in Mountain View, Hawaii. The home and lot
have no mortgage, and are valued at $89,500.00. (Ex. 31c at 50-
51; Ex. 35) Sparky also receives $900 per month in social
security and has approximately $2,000 in a checking account and
$4,000 in an IRA. (Ex. 31c at 43, 55-56) Sparky and his wife
also own 1984 and 1980 Toyota cars in full, but no evidence was
presented to show the present value of these cars. (Ex. 31c at
60) Sparky no longer receives a pension from HFE, and has no
other assets. (Ex. 31c at 50-65)
Given these factors, I determine that an award of $10,000
in punitive damages is appropriate.

4. Other Relief
I decline to award the remaining relief requested by the
Executive Director. Because Respondent HFE has ceased
operations and is currently in Chapter 7 bankruptcy proceedings,
it would serve no purpose to require HFE to post notices of the
Commission's decision on the premises and the corporation is not
likely to have funds to publish such notices in a newspaper of
general circulation. The Executive Director, however, is free
to issue press statements regarding the results of the
Commission's investigation or regarding compliance with the
state's sexual harassment laws on its own. In terms of the
deposition costs sought, H.R.S. sec. 368-17(a)(9) allows "[p]ayment
to the complainant of all or a portion of the costs of
maintaining the action before the commission". (Emphasis
added.) The deposition costs in the present case were borne by
the Executive Director, not the Complainant.


V. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents HFE and Masami
Sparky Niimi violated the provisions of H.R.S. sec. 378-2 and
H.A.R. 12-46-101 and 109 by subjecting Complainant Dolores
Santos to unwelcome sexual conduct which created an
intimidating, hostile and offensive work environment and by
constructively discharging her.
For the violations found above, I recommend that pursuant
to H.R.S. sec. 368-17, the Commission should order:
1. Respondent HFE to pay Complainant back pay in the
amount of $10,580.00. This amount should be offset by any
amounts Complainant received as workers' compensation disability
payments.
2. Respondents HFE and Masami Sparky Niimi jointly and
severally to pay Complainant $100,000.00 as damages in
compensation for her emotional injuries.
3. Respondent Masami Sparky Niimi to pay Complainant
$10,000.00 as punitive damages.

DATED: Honolulu, Hawaii __________________________.

/s/________________________
LIVIA WANG
Hearings Examiner
Hawaii Civil Rights Commission


APPENDIX A


On February 14, 1992 the Executive Director sent
Respondents Hawaiian Flowers Exports, Inc. (hereinafter "HFE")
and Masami Sparky Niimi (hereinafter "Niimi") a final
conciliation demand letter pursuant to Hawaii Administrative
Rule (H.A.R.) 12-46-17.
On March 2, 1992 the complaint was docketed for
administrative hearing and a Notice Of Docketing Of Complaint
was issued. On March 3, 1992, Respondents, by and through their
attorney Glenn S. Hara, orally objected to the docketing of the
complaint on the grounds that they had not received the final
conciliation demand letter until February 18, 1992. By
telephone conference with the parties on March 4, 1992, the
Hearings Examiner orally rescinded the Notice Of Docketing Of
Complaint sua sponte.
On March 4, 1992 Respondents requested a continuance of
conciliation efforts. The Executive Director orally granted a
continuance up to noon, March 10, 1992. This continuance was
confirmed by letter dated March 5, 1992. On March 5, 1992 the
Hearing Examiner issued an Order Rescinding The Docketing Of
Complaint.
A conciliation agreement was not reached by the parties by
noon, March 10, 1992. By letter dated March 10, 1992 the
Executive Director rejected Respondents' counter offer and found
that conciliation would not resolve the complaint. On that date
at approximately 2:36 p.m. the complaint was docketed a second
time and a Notice Of Second Docketing Of Complaint was issued.
On March 16, 1992 the Executive Director filed a Motion For
Order Vacating Hearing Examiner's Order Rescinding Docketing Of
Complaint. The Executive Director also filed a Motion for Order
Granting Declaratory Relief with the Commission.
On March 17, 1992 the Executive Director filed its
Scheduling Conference Statement.
On March 18, 1992 Respondents filed a Motion To Set Aside
Notice Of Second Docketing of Complaint.
On March 20, 1992 the Commission issued its order denying
the Executive Director's Motion For Order Granting Declaratory
Relief. The Executive Director subsequently withdrew its Motion
For Order Vacating Hearing Examiner's Order Rescinding Docketing
of Complaint.
On March 25 a hearing by telephone conference was held on
Respondents' Motion To Set Aside Notice Of Second Docketing Of
Complaint before the undersigned Hearings Examiner. After
considering the pleadings and arguments presented, the Hearings
Examiner verbally denied Respondents' motion. The Hearing
Examiner's Order Denying Motion To Set Aside Notice Of Second
Docketing Of Complaint was issued on March 30, 1992.
On March 27, 1992 Respondents filed their Scheduling
Conference Statement. On April 3, 1992 a Scheduling Conference
was held. The Scheduling Conference Order was issued on April
6, 1992.
On April 8, 1992 Respondents filed a Motion For Order
Granting Declaratory Relief, Or In The Alternative,
Reconsideration Of Hearing Examiner's Order [denying motion to
set aside notice of second docketing of complaint] with the
Commission. Respondents filed an amendment to this motion on
April 8, 1992. On April 28, 1992 the Commission issued an order
denying Respondents' amended motion.
On July 22, 1992 Respondent Niimi filed a Motion to Strike
Notice Of Second Docketing Of Complaint and a Motion To Dismiss
Complaint As To Masami Sparky Niimi Due To Lack Of Jurisdiction.
On July 23, 1992 Respondent HFE filed a voluntary petition
for bankruptcy with the U.S. Bankruptcy Court of the district of
Hawaii. On July 24, 1992 the Executive Director filed a Motion
To Stay Proceedings, Discovery and Deadlines based on its belief
that all persons were enjoined and stayed from commencing or
continuing any proceedings against Respondent HFE pursuant to 11
U.S.C. sec. 362. On July 27, 1992 the Hearing Examiner issued an
order denying the Executive Director's motion to stay
proceedings on the grounds that pursuant to 11 U.S.C.
sec. 362(b)(4) the proceedings were exempt from the automatic stay
provisions. On July 28, 1992 the Hearings Examiner issued an
amended order denying the Executive Director's motion to stay
proceedings. On July 29, 1992 the Executive Director filed a
Motion For Reconsideration And For Immediate Stay Of
Proceedings, Discovery, Deadlines And Continuance Of Hearing
with the Commission. On July 29, 1992 Respondent Niimi filed a
statement of no objection to the Executive Director's motion.
On August 6, 1992 the Commission issued an Order Denying Motion
For Immediate Stay of Proceedings. However, the Commission also
extended all deadlines established in the Scheduling Conference
Order by 14 days.
On August 3, 1992 Glenn S. Hara filed a Notice of
Withdrawal As Counsel for Respondent HFE on the grounds that
Respondent HFE had discharged him.
On August 6, 1992 the Hearings Examiner issued an Amended
Scheduling Conference Order, Amended Notice of Prehearing
Conference and Order, and an Amended Notice of Hearing.
On August 17, 1992 the Executive Director filed a
Memorandum In Opposition To Respondent's Motion To Dismiss
Complaint As To Masami Sparky Niimi Due To Lack Of Jurisdiction,
and a Memorandum In Opposition To Respondent's Motion To Strike
Notice Of Second Docketing Of Complaint.
On August 18, 1992 the Executive Director filed a motion to
compel Respondent HFE to answer its first amended request for
answers to interrogatories. On that date it also filed a motion
to compel Respondent Niimi to respond to certain questions
contained in its first request for answers to interrogatories.
On August 19, 1992 the Hearings Examiner issued an order
granting the Executive Director's motion to compel as to
Respondent HFE and issued an order granting in part and denying
in part the Executive Director's motion to compel as to
Respondent Niimi.
By letter dated August 20, 1992 Respondent Niimi objected
to the Hearing Examiner's August 19, 1992 order granting in part
and denying in part the motion to compel as to him. On August
20, 1992 the Hearings Examiner rescinded the order granting in
part and denying in part the Executive Director's motion to
compel as to Respondent Niimi. On August 25, 1992 Respondent
Niimi filed a memorandum in response to the Executive Director's
motion to compel. On that same date, the Executive Director
filed a withdrawal of its motion to compel as to Respondent
Niimi.
On August 19, 1992 the Executive Director and Respondent
Niimi filed their prehearing conference statements.
On August 20, 1992 a hearing was held on Respondent Niimi's
Motion To Dismiss Complaint As To Masami Sparky Niimi Due To
Lack Of Jurisdiction and Motion To Strike Notice Of Second
Docketing Of Complaint. On August 20, 1992 the Hearings
Examiner issued an Order Denying Motion To Dismiss Complaint As
To Masami Sparky Niimi Due To Lack Of Jurisdiction. On August
24, 1992 the Hearings Examiner issued an Order Denying Motion To
Strike Notice Of Second Docketing Of Complaint.

On August 25, 1992 the Executive Director filed an Amended
Prehearing Conference Statement. On August 28, 1992 a
Prehearing Conference was held, and the Prehearing Conference
Order was issued on September 1, 1992.
On September 2, 1992 Respondent Niimi filed a Motion For
Reconsideration Of Hearings Examiner's Order Denying Motion To
Strike Second Docketing Of Complaint with the Commission. On
September 4, 1992 the Commission issued an order denying
Respondent Niimi's motion for reconsideration.
On September 1, 1992 Respondent Niimi filed a Motion In
Limine To Require The Presence Of Kalei Peterson At Hearing. On
September 4, 1992 the Executive Director filed its memorandum in
opposition to the motion in limine. A hearing on this motion
was held on September 8, 1992, at which the Hearings Examiner
orally denied the motion.
On September 8, 9, 10 and 11 the contested case hearing on
this matter was held by the Hearings Examiner pursuant to H.R.S.
Chapters 91 and 368 and the Amended Notice Of Hearing. The
Executive Director was represented by Enforcement Attorneys Karl
K. Sakamoto and Anne Randolph. Complainant was present during
portions of the hearing and knowingly waived her right to be
present during the portions of the hearing in which she was
absent. Respondent Niimi was present and was represented by his
attorney, Glenn S. Hara. Robert Niimi and Richard Niimi
appeared on behalf of Respondent HFE and were present during
portions of the hearing. They knowingly declined to contest the
allegations and claims contained in the Executive Director's
Scheduling Conference Statement and declined to present a case
on behalf of HFE. They also waived HFE's right to be present
during the portions of the hearing in which they were absent.
The parties were granted leave to file proposed findings of
fact and conclusions of law and/or hearing briefs. On September
25, 1992, the Executive Director filed its Post Hearing
Memorandum. On September 25, 1992 Respondent Niimi filed his
Hearing Brief.  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 September 8-11, 1992; "Ex." followed by a number refers
to the Executive Director's exhibits; "Ex." followed by a
letter refers to Respondent Sparky Niimi'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. sec. 2000e(b) states in relevant part:

The term "employer" means a person engaged in an
industry affecting commerce who has fifteen or more
employees for each working day in each of twenty or
more calendar weeks in the current or preceding year
and any agent of such person, but such term does not
include. . .

5. 29 CFR sec. 1604.11(c) (1980) states in relevant part:

. . . The Commission will examine the circumstances of
the particular employment relationship and the job
functions performed by the individual in determining
whether an individual acts in either a supervisory or
agency capacity.

Title VII does not define the term "agent" as found in 42 U.S.C.
sec. 2000e(b).

6. 42 U.S.C. sec. 2000e-2(a)(1) (1982) states that it is "an
unlawful employment practice for an employer. . . to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's race, color, religion, sex, or
national origin."

7. 29 CFR sec.1604.11(a)(3) defines hostile work environment
sexual harassment as "[u]nwelcome sexual advances, requests for
sexual favors and other verbal or physical conduct of a sexual
nature" where "such conduct has the purpose or effect of
unreasonable interfering with an individuals work performance or
creating an intimidating, hostile, or offensive working
environment".
8. Unfortunately, there is no Hawaii Appellate caselaw
which defines such elements pursuant to H.R.S. sec.378-3.

9. I therefore do not determine whether the McDonnell
Douglas formula applies to other disparate treatment cases under
H.R.S. Chapter 378 where there is no direct evidence of
discriminatory intent.

10. Again, there appears to be no Hawaii Appellate cases
which set out such elements.

11. This statutory remedy is not to be confused with the
common law tort of negligent infliction of emotional distress in
which a plaintiff is required to show that a reasonable person,
normally constituted, would be unable to adequately cope with
the mental stress engendered by the circumstances. Rodrigues v.
State, 52 Haw. 156, 173-174 (1970).

12. This amount is also comparable to damages for
emotional distress awarded in hostile environment sexual
harassment cases under other state civil rights acts. See,
Delahunty v. Cahoon, 832 P.2d 1378 (Wash.App. 1992) (female
waitresses who were physically harassed by supervisor for 10
days awarded $7,500 compensatory damages); Howard v. Canteen
Corp., 481 N.W.2d 718 (Mich.App. 1991) (employee awarded
$200,000 for emotional distress caused by 2 years of verbal
sexual harassment and retaliation); Department of Civil Rights
ex rel. Johnson v. Silver Dollar Cafe, 469 N.W.2d 42, 59 EPD
41,580 (Mich.App. 1991) (waitress who was harassed by cafe owner
who made sexual comments and gestures for almost 1 year awarded
$30,000 for emotional distress); Melisha v. Wickes Companies,
Inc., 459 N.W.2d 707 (Minn.App. 1990) (employee awarded $50,000
for past emotional distress and $20,000 for future emotional
distress resulting from verbal sexual harassment which occurred
over a 3 year period); SUNY College of Environ. Science and
Forestry v. State Div. of Human Rights, 534 N.Y.S.2d 270
(N.Y.A.D. 1988) (sexually harassed employee awarded $100,000 for
emotional distress).