Whitedra.txt

CIVIL RIGHTS COMMISSION

STATE OF HAWAII


WILLIAM D. HOSHIJO, ) Docket No. 97-001-PA-R
Executive Director, on )
behalf of the complaint ) HEARINGS EXAMINER'S FINDINGS
filed by ERIC WHITE, ) OF FACT, CONCLUSIONS OF LAW
) AND RECOMMENDED ORDER;
v. ) APPENDIX A; APPENDIX B;
) ATTACHMENT 1.
)
STATE OF HAWAII, UNIVERSITY )
OF HAWAII; and ROB WALLACE, )
)
Respondents. )
______________________________)


HEARINGS 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: a) Respondent Rob
Wallace, a student manager for the University of Hawaii men's
basketball team, was an employee or alternatively, an agent of
Respondent State of Hawaii, University of Hawaii (hereinafter "UH");
b) Respondent Wallace violated H.R.S.  489-3 when he used a racial
slur towards Complainant Eric White during a basketball game held on
February 18, 1995 at the Special Events Arena;
c) Respondent Wallace is liable for damages to Complainant for his
discriminatory act and is subject to penalties under H.R.S.  489-8;
d) Respondent UH is liable for damages to Complainant for the
discriminatory acts of its employee or agent and is subject to
penalties under H.R.S.  489-8; and e) even if Respondent Wallace
is not an employee or agent of Respondent UH, Respondent UH violated
H.R.S.  489-3 when it failed to take immediate and appropriate
corrective action, is liable for damages to Complainant for its
discriminatory acts and is subject to penalties under H.R.S.  489-
8.
Respondents admit that Respondent Wallace used a racial slur
towards Complainant at least once during the February 18, 1995
basketball game. Respondents contend that: a) Respondent Wallace
was not an employee or an agent of Respondent UH; b) Respondent
Wallace did not violate H.R.S.  489-3 and neither Respondents are
liable for damages to Complainant or subject to penalties under
H.R.S.  489-8; c) Respondent Wallace's use of a racial slur did
not create a severe or pervasive discriminatory environment; and
d) after the incident, Respondent UH took immediate and appropriate
corrective action.
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. Complainant Eric White is a 45 year old African American
male who was born and raised in New York City. In 1978 Complainant
began working for United Air Lines in New York. In 1985 Complainant
transferred to Honolulu and is presently employed with United as a
ramp service person. (Tr. at 112-114; Ex. 39 at 4-9, 12) [2]
2. Complainant loves basketball and is knowledgeable about
the game. Complainant played basketball for the Andrew Jackson High
School varsity team, for Queensborough Junior College and in various
New York summer leagues. He was also a volunteer coach and referee
for several New York high school, junior high school, and church
league basketball teams. (Tr. at 379; Ex. 39 at 13-16, 69, 104)
3. Respondent UH is a public corporation established as a
state university pursuant to H.R.S.  304-2. Respondent UH is
comprised of several colleges and departments, one of which is
Department of Intercollegiate Athletics at the Manoa campus
(hereinafter "Department"). The Department's main goal is to
provide a comprehensive and competitive program of intercollegiate
athletics for students and the community at large. Since 1993, Hugh
Yoshida has been the Director of the Department. (Ex. 17 at 6-7;
Ex. 18 at 17; Ex. 27 at vi)
4. The Department underwrites a men's basketball team. The
purposes of the men's basketball team are to: a) provide student
athletes an opportunity to compete at the Division I-A level;
b) provide entertainment to the community; c) raise funds for the
Department; and d) meet Western Athletic Conference membership
requirements. From 1978-1984 and 1987 to the present, Riley Wallace
has been the head coach of the men's basketball team. (Ex. 14 at 5-
7; Ex. 17 at 7-9; Ex. 23)
5. The men's basketball team has two student managers. Like
players, student managers are members of the basketball team and
are selected by Riley Wallace. They are supervised by the team's
coaches. Respondent UH considers student managers to be student
athletes and requires them to: a) be full time students;
b) carry at least 12 credits; and c) maintain a grade point
average of at least 2.0. The Department grants student managers
financial aid in the form of full athletic scholarships, which
include tuition waivers, book loans and money for housing and meals.
The monies for these scholarships are held in Respondent UH's
general scholarship account and are administered by the Department's
business office. Unlike Department employees, student-athlete
scholarship recipients are not given employee identification
numbers, are not on Respondent UH's payroll and are not given
benefits such as annual leave, workers' compensation or health
insurance. Respondent UH also does not withhold taxes for student-
athlete scholarship recipients. (Tr. at 270-273, 276, 426-427, 431,
433-434; Ex. 12 at 36-40; Ex. 14 at 11; Ex. 17 at 18; Ex. 20 at
11, 13-16, 48; Exs. 32, 32-A, 32-B)
6. Student managers are responsible for team logistics.
During the pre-season, student managers issue equipment, prepare the
gym for practices and assist the coaches and players during and
after practices. During the regular season, student managers
additionally set up water and equipment in the arena, maintain
equipment and the locker rooms, wipe the floor during games, pack
the players' travel bags and take turns traveling with the team.
During the post-season, student managers gather equipment from
players and attend post-season workouts. Student managers are also
required to participate in fund-raising events, such as golf
tournaments and dinner auctions which raise money for the basketball
program. At these fund-raisers, the Department requires student
managers to mingle and socialize with members of the public who
attend. The Department also allows student managers to speak to
spectators who attend practices and games. (Tr. at 22-46;
Ex. 12 at 18-36; Ex. 14 at 10-13; Ex. 28)
7. Student managers are subject to regulations contained in
the UH Student-Athlete Handbook (hereinafter "Handbook"). The
introduction to Part 1 of the Handbook states:
As an athlete there are special responsibilities and
requirements that accompany the privilege of being a student-
athlete and representing this University. Other students need
not worry about athletic eligibility requirements, media
relations, team travel rules, complimentary admissions, drug
testing, etc. Thus as an athlete, you have special interests
and responsibilities that do not apply to other students.
. . .
When you participate in intercollegiate athletics competition,
you are representing the University of Hawaii and all the
people of Hawaii. As an intercollegiate sports participant,
you will be in the "public eye" and your personal conduct
should reflect favorably upon yourself, your team and the
University.
In the subsection entitled "Good Sportsmanship" the Handbook states,
in relevant part:
The Department of Athletics expects sportsmanlike conduct of
its student-athletes and will not tolerate any of the following
behaviors:
. . .
* Using obscene or inappropriate language or gestures to
officials, opponents, team members or spectators . . .
In the subsection entitled "Code of Conduct" the Handbook states in
relevant part:
Always present a positive image in competition as well as in
your daily life. Remember that as a UHM student-athlete your
actions and conduct in everything you do reflect upon the
University and the Athletic Program. In other words, don't do
anything which would embarrass yourself, the team, your family
or the university.
. . .
Because our athletic program is the only NCAA Division I
program in the state, we receive more than our share of public
and media attention. This interest is obviously of tremendous
benefit to the University, the Department and to you. However,
it also places upon all persons connected with the program a
continuing responsibility to conduct themselves in an
appropriate manner.

The Department of Intercollegiate Athletics requires coaches,
trainers, and staff to conduct themselves in a way which
creates a positive image of the people, values and traditions
associated with the University, the WAC and the NCAA. As a
student-athlete, you are expected to uphold the same standards
of conduct that have been adopted by the Department and the
University.

By joining the UHM's intercollegiate athletic program, you have
become a representative not only of your team but of your
University. . . You are expected to behave both on and off
campus in a manner which brings credit to the University and
your team. Be aware of the image you are creating.
. . .
As long as you are a student-athlete, you are representing the
University and must abide by this Code of Conduct. Therefore,
this Code of Conduct applies during the academic year as well
as during break time and summer vacation periods, and to
conduct on or off campus.

At the beginning of each school year, every student athlete receives
a copy of the Handbook and is instructed to read it. Yoshida also
reviews the above regulations with all student athletes during
orientation meetings. (Tr. at 56-57, 436-438; Ex. 8; Ex. 18 at 31,
33-36; Ex. 20 at 49-50; Ex. 27 at 1, 3-5, 7-8)
8. Respondent Rob Wallace is a 24 year old Caucasian male.
He was born in Louisiana and was raised in Honolulu. He is the son
of Riley Wallace. In 1992, Riley Wallace asked Respondent Wallace
to be a student manager for the UH men's basketball team.
Respondent Wallace agreed and served in that capacity during the
1992-93 and 1993-94 school years and for most of the 1994-95 school
year. He received full athletic scholarships during these school
years. (Tr. at 17, 49-56; Exs. 7, 9, 13, 30-32B; Ex. 12 at 7-9,
14-17, 36-40)
9. Upon moving to Hawaii in 1985, Complainant became an avid
supporter of the UH men's basketball team. He attended team
practices and gave players advice about their playing skills. He
also invited players to his home to eat meals, helped players with
their home work, and some times loaned players money. At the
airport, Complainant loaded the team's luggage when the team
traveled. (Tr. at 116-117, 131-132, 160-163; Ex. 39 at 14-15, 17-
18, 79-80)
10. Complainant was also acquainted with Bob Nash, an
assistant coach of the basketball team. Some time around 1986 Nash
asked Riley Wallace if he could give Complainant complimentary
tickets to the UH men's basketball games. At that time, home games
were played in Blaisdell Arena and Riley Wallace held tickets for
two rows of seats behind the team bench. Riley Wallace agreed to
give Complainant these tickets and thereafter gave Complainant
tickets whenever he called and asked for them. Complainant and his
wife usually attended 5-6 games a year. Complainant enjoyed sitting
in the row behind the team bench because he was able to hear what
was said on the bench and was able to directly cheer and encourage
the players. (Tr. at 118; Ex. 14 at 21-22; Ex. 15 at 14; Ex. 16;
Ex. 39 at 15-19, 44).
11. Complainant saw Respondent Wallace at team practices and
at games during the 1993 and 1994 seasons. Although Complainant
knew that Respondent Wallace was some kind of team assistant, he did
not know Respondent Wallace's name or that he was Riley Wallace's
son. Respondent Wallace also saw Complainant at some of the team
practices. (Tr. at 62-63, 128-130; Ex. 12 at 43-44; Ex. 39 at
80, 82)
12. In 1994 the basketball team began to play home games at
the Special Events Arena. The Special Events Arena is owned by
Respondent UH and managed by the Department. It is a place of
public accommodation as defined in H.R.S.  489-2. (Tr. at 116)
13. At the Special Events Arena (hereinafter "arena"), Riley
Wallace held tickets to only one row of seats behind the team bench.
Prior to the 1994-95 season, Riley Wallace approached Complainant
and encouraged him to join the team's booster club so that
Complainant could purchase priority season tickets. Complainant
decided to join the booster club to support the team. He made a
sizeable contribution to the booster club and bought season tickets.
He was assigned two seats in the AA section of the arena, which were
up and across from the team bench. (Exs. 16, 26; Ex. 39 at 16-17,
21-25, 36, 39-40)
14. Complainant became an enthusiastic member of the booster
club. He attended booster club fund-raisers and events. At home
games, Complainant and his family usually arrived early and went to
the booster hospitality room, which was located on the floor level
of the arena. After leaving the hospitality room, Complainant and
his family would go on to the floor and chat with players before the
games. Complainant would also look for empty seats near the team
bench because he couldn't see well from his assigned seats and
because he wanted to sit close to the players. (Tr. at 120-121,
191; Ex. 39 at 26-38, 42-48, 53-55)
15. At some point early in the 1994-95 season, Complainant
noticed that a seat within the first two rows of the DD section was
usually vacant. This section was near the end of the UH team bench
and the tunnel through which the team entered and exited the arena.
Complainant began to regularly sit in this area, while his wife and
daughter sat in other seats. Complainant became friendly with the
season ticket holders in the first two rows of the DD section. One
of them, Rodney Okai, let Complainant's wife use one of his tickets
so that Complainant and his family could sit together. Thereafter,
Complainant, his wife and daughter usually sat somewhere in the
first two rows of the DD section whenever they attended games. (Tr.
at 284, 313-314, 323-324, 350-351; Exs. 5, 26; Ex. 39 at 38-41, 46-
47, 64-66)
16. Complainant was very vocal during basketball games. He
yelled supportive comments about the team such as "Good play!" or
"Play strong!". Complainant also yelled critical comments about the
referees such as, "You blew this call!", "Ref, catch the next one!"
and "You're really doing a stinking job!". Complainant, however,
did not curse, swear or use profanity because it was against his
religion and because he was with his family. Complainant constantly
yelled out these comments to get his opinions "off [his] chest"
during the game. He considered such comments to be "just saying
basketball talk" and did not expect anyone to hear or listen to
them. Other spectators in section DD and throughout the arena also
engaged in similar "basketball talk". Complainant was never asked
by arena personnel or other spectators to quiet down or to refrain
from making such comments. (Tr. at 122-128, 156, 255, 294-300, 302-
304, 307, 351-354, 365; Ex. 15 at 18-19, 24-25; Ex 17 at 32-33;
Ex. 39 at 68-71, 74-79)
17. On Saturday, February 18, 1995 Complainant and his family
attended the basketball game against Utah. They sat in the front
row of section DD. Respondent Wallace was present at the game as a
student manager. He sat or stood at the end of the team bench and
was approximately 8 feet away from Complainant. (Tr. at 65-67,
120-121, 242; Exs. 7, 9, 26, 33; Ex. 12 at 42; Ex. 39 at
38-39)
18. The game was very close and exciting. During the first
half of the game, Complainant yelled comments about the referees and
opposing players. During the second half of the game, UH was
trailing and Complainant felt that certain seniors should be put
into the game. He felt that the UH coaches failed to "play the
bench" the entire season, and that UH would lose this game because
of the same mistake. Complainant became unusually frustrated and
began to yell comments about the coaching staff such as, "You're a
dinosaur coach!" "You're blowing it!" "You don't know what you're
doing!" "Stupid move!" "Play your bench!" "Put Woody [Woodrow
Moore] in!" "You gotta use Woody, Woody can do it!" "You can't
coach talented players!" "Play your best players!" (Tr. at 75-76,
125, 285, 303-304, 307-308, 344-346, 362-363; Ex. 11; Ex. 12 at
45-49; Ex. 21 at 10-13; Ex. 39 at 71-78)
19. Respondent Wallace became very irritated by Complainant's
comments about the coaching staff. The team was having a losing
season and there had been several recent newspaper articles critical
of Riley Wallace. The entire Wallace family was under stress.
Respondent Wallace felt that Complainant's comments were additional
attacks on his father. At one point, Respondent Wallace expressed
his irritation to Rich Sheriff, the arena manager and a personal
friend. Sheriff agreed that Complainant's remarks were irritating,
but felt they were not offensive and did not ask Complainant to
quiet down. (Tr. at 70, 75-76, 81. 98; Ex. 12 at 45-49, 52, 60-61,
72-73; Ex. 21 at 11-13)
20. Some time during the final two minutes of the game,
Complainant yelled something like, "You should pack your bags and go
already!" Upon hearing this, Respondent Wallace exploded. He felt
Complainant's comment was very hurtful to him and his family.
Without thinking, Respondent Wallace turned towards Complainant and
shouted, "Shut up you fucking nigger! I'm tired of hearing your
shit! Shut your mouth or I'll kick your ass!". (Tr. at 70-72, 75-
76, 84, 97, 132-133, 222-224, 309-310, 347-348, 367-371; Ex. 12 at
52-54, 60-62; Ex. 25; Ex. 39 at 82-85; Ex. 41 at 15-16)
21. Respondent Wallace knew that the word "nigger" was a
racist and derogatory term for Black people. Respondent Wallace was
taught to respect people of all races and did not believe that
African Americans were "niggers" or inferior. He also believed that
insulting a person's race was a very ugly and terrible thing to do.
Respondent Wallace used the term "nigger" towards Complainant
because it was the ugliest thing he could say to hurt Complainant at
the time. He would not have used the term if Complainant had not
been African American. Respondent Wallace also expected
Complainant to be angered by his use of the word "nigger". (Tr. at
72-74, 76, 100, 106-107; Ex. 12 at 49,
62-64, 70-71)
22. Complainant was angry. He was also shocked, hurt and
embarrassed. During his childhood, Complainant was taught that the
word "nigger" was the most hateful, derogatory, horrible thing that
could be said to an African American. Complainant turned to
Respondent Wallace and said, "Oh yeah, punk, come over and try it
[kick my ass]! You see me all the time, what's the problem?" (Tr.
at 133-134, 208-209, 368-371, 377; Ex. 39 at 82-86, 108)
23. Respondent Wallace moved within a few feet of Complainant
and shouted, "Just shut up, nigger or I'll kick your ass!".
Complainant responded, "Oh yeah, you and who else?" Adam Primas,
the assistant arena manager, intervened. Primas put his hand on
Respondent Wallace's arm and said, "Rob, cool it! It's not worth
it!" and began to nudge Respondent Wallace into the tunnel.
Respondent Wallace burst into tears and ran through the tunnel to
the locker room. Primas followed. (Tr. at 74-75, 80, 84-85, 222,
306, 309-310, 347-348; Ex. 12 at 56-58, 73; Ex. 25; Ex. 39 at 82-
86)
24. Arguing with spectators, threatening spectators or using
the words "nigger" or "fucking nigger", even if provoked by a
spectator, are prohibited behaviors and constitute minor violations
of the UH Student-Athlete Code of Conduct. A head coach may take
disciplinary action, such as temporary suspension from the team, for
such violations. Criminal activity, physically violent behavior,
drug distribution or drug possession are considered to be major
violations of the code. A head coach must immediately suspend a
student-athlete for such behavior and refer the matter to the
Department Director for further disciplinary action. An athletic
scholarship may be revoked only for academic ineligibility, quitting
a team or major misconduct. (Tr. at 280-282; 339-340; Ex. 17 at
48; Ex. 27 at 11-13)
25. After Respondent Wallace exited the floor, Complainant
turned to the boosters and security personnel around him and
shouted, "Did you hear what he called me? Did you hear that?"
Complainant did not understand why someone he barely knew would lash
out at him in that manner. He was upset, dazed and embarrassed.
(Tr. at 160, 347, 372-373; Ex. 39 at 86, 88) 26.
Riley Wallace did not hear Complainant's comments or the
exchange with Respondent Wallace. About 30 seconds later, a
coaching assistant informed him that Complainant and his son were
arguing. Riley Wallace walked down the floor to Complainant, stood
with his back towards Complainant and discreetly said, "Eric, could
you please take it easy on my son?" Complainant then realized that
Respondent Wallace was Riley Wallace's son. He replied, "Coach,
when your son uses the "N" word, he's no longer your son. I'm going
to break his punk ass." Riley Wallace then walked back to the team
bench. (Tr. at 129; 135-136, 224, 289-290, 348, 376; Ex. 14 at 26-
27; Ex. 39 at 86)
27. About a minute later, the game was over. Someone notified
Sheriff of the incident. Sheriff went to Complainant and demanded,
"What the hell were you doing?" Complainant informed Sheriff and a
security guard that Respondent Wallace called him "nigger" and that
he wanted to make a complaint. Sheriff stated that he couldn't do
anything about the matter. The security guard denied hearing the
word "nigger". Complainant became more upset and stated, "What do
you mean you didn't hear it?" Riley Wallace then approached the
tunnel entrance. Complainant called out something like, "Hey
coach!" Riley Wallace, turned, looked at Complainant and then
proceeded into the tunnel. Complainant continued to argue with
Sheriff about whether Respondent Wallace used the word "nigger", and
whether Sheriff would accept his complaint. Sheriff instructed
Complainant to file a complaint with the Honolulu Police Department
(HPD). At this point, Okai and his wife observed that Sheriff and
Complainant were losing their tempers and feared that Sheriff might
have Complainant arrested. The Okai's told Sheriff and the security
guard to leave and let them handle the situation. The Okai's then
calmed Complainant down. (Tr. at 135-136, 158-160, 238, 243-244,
290-291, 320-323; Ex. 36; Ex. 39 at 86-89)
28. Sheriff left the floor and informed Yoshida of the
incident. Sheriff and Yoshida then spoke to John Reznick, a
spectator who was sitting near Complainant during the incident.
Reznick denied hearing Respondent Wallace use the word "nigger".
(Tr. at 244-245, 372; Ex. 17 at 34-35; Ex. 21 at 30-31; Ex. 22)
29. Yoshida went into the locker room and asked Respondent
Wallace if he had called Complainant a "nigger". Respondent Wallace
admitted that he had. Riley Wallace went into the locker room and
asked Respondent Wallace what happened. Respondent Wallace informed
him of the incident and apologized for his actions. (Tr. at 85-86,
338; Ex. 12 at 75-76)

30. Complainant and his family left the arena and went into
the parking lot. Complainant called the HPD on his cellular phone.
A few minutes later, a police officer arrived. Complainant sent his
wife and daughter home by taxi. He then reported the incident to
the officer. (Tr. at 135-137; Ex. 39 at 89-90)
31. Artie Wilson, an African American broadcaster was informed
of the incident and heard that Complainant was filing a complaint
with the police. Wilson was not an employee or agent of Respondent
UH. Wilson went to the parking lot and told Complainant that he
would try to arrange a meeting to "patch things up". Wilson then
returned to the arena and asked Yoshida and Riley Wallace to meet
with Complainant. (Tr. at 137-139, 438; Ex. 14 at 28; Ex. 17 at
35-37; Ex. 39 at 90-91)
32. A few minutes later, Yoshida went to the parking lot to
discuss the incident with Complainant. Yoshida stated that he felt
Respondent Wallace's use of the word "nigger" was a "reaction . . .
. in terms of a father-son relationship". Riley Wallace then went
to the parking lot and told Complainant that he wanted to "settle
this thing" and "talk it over as men". Complainant followed Riley
Wallace and Yoshida to Sheriff's office in the arena. Respondent
Wallace and his mother were already in the office. Riley Wallace
waived off Yoshida and shut the door. (Tr. at 138; Ex. 12 at 74;
Ex. 14 at 28-29; Ex. 17 at 36-39; Ex. 39 at 91-92)
33. Complainant sat with Riley Wallace, Mrs. Wallace and
Respondent Wallace, who was bent over with his head buried in his
hands. Complainant asked Respondent Wallace, "Why did you say that?
That was a very, very bad thing to do." Respondent Wallace was
crying and shook his head. Riley Wallace said something like, "Rob
was wrong. We're not going to rehash this, he did it because he
loves his father. We're going to let this go, okay?" Riley Wallace
then said, "You have a child, if someone starts screaming and
yelling at you, what if your daughter was upset with that and she
fought back on your behalf? That's what Rob did, he obviously loves
me and he was defending me even though he did wrong". Respondent
Wallace then softly explained to Complainant that he "lost it" after
hearing Complainant's comments and said he was sorry. Complainant
felt uncomfortable and intimidated being alone with the Wallaces.
Complainant stated that he understood what happened, that he had
"kind of lost it too" when he yelled comments about the coaches, but
that he didn't like the word "nigger" and didn't want to hear it
again. Complainant shook hands with Respondent Wallace, hugged him,
then shook hands with Riley and Mrs. Wallace and left. (Tr. at 87-
88, 138-139, 141, 164-167, 204; Ex. 12 at 74-76; Ex. 14 at 29-30;
Ex. 39 at 88-89, 91-93)
34. Yoshida and his wife then drove Complainant home.
Complainant informed the Yoshidas that Respondent Wallace had
apologized, that he [Complainant] understood what had happened and
was partly at fault. Yoshida thought the matter had been resolved
and decided not to investigate further or impose any discipline on
Respondent Wallace. At home, Complainant was still shocked and
dazed by the incident. He stayed up late thinking about what
occurred and had a difficult time sleeping that night. (Tr. at 140-
142, 227, 326-327; Ex. 17 at 39-43)
35. Later that evening, an HPD officer informed Primas that
Complainant wanted to press charges against the University but that
HPD determined the incident to be a civil "University matter".
Primas told the officer that he [Primas] could no longer assist
Complainant because Complainant had already left the arena.
Sheriff, who normally writes reports on such incidents, did not make
such a report because he thought the matter was personal and had
been resolved by the parties. (Ex. 21 at 32; Ex. 25)
36. The next day at practice, Riley Wallace informed the
basketball team that Respondent Wallace had used a racial slur
towards a booster and that he [Respondent Wallace] wanted to
apologize to the team for the incident. Riley Wallace then
encouraged the team to put the incident behind them and to focus on
the upcoming road trip. Respondent Wallace was not at the meeting
and did not attend practice that day. He packed the team's travel
bags for the road trip but did not accompany the team because it was
the other student manager's turn to travel. (Tr. at 108, 328-329,
403-407; Ex. 41 at 19-24)
37. On or about Sunday, February 19, 1995 Complainant was
questioned at work about the incident by several co-workers who had
either observed the incident at the game, heard about the incident
on the radio, or saw television footage of Complainant arguing with
Sheriff and calling out to Riley Wallace. On or about that
evening, an African American member of the team called Complainant.
He stated that some African American players were upset by
Respondent Wallace's use of the word "nigger" and were unhappy that
Respondent Wallace had not been disciplined, especially since an
African American player had subsequently been suspended for swearing
at a coach. He also informed Complainant that the coaches directed
the players not to talk to him [Complainant] any more. (Tr. at 142-
143, 154-156; Ex. 39 at 79, 93-94, 98-101)
38. Complainant became more upset and embarrassed about the
incident and Respondent UH's handling of the matter. He felt that
additional remedies, besides the private apology from Respondent
Wallace, were warranted. Specifically, Complainant wanted:
a) Respondent Wallace and Respondent UH to publicly apologize to
him; b) Riley Wallace to immediately suspend Respondent Wallace;
c) Riley Wallace and Respondent UH to conduct a formal and thorough
investigation of the incident; and d) Riley Wallace to hold a team
meeting and inform the team that he would not tolerate the use of
racial epithets by or against team members. (Tr. at 143-144, 151,
205, 212; Ex. 17 at 43; Ex. 39 at 95-97, 101-102, 112-113)
39. On Tuesday, February 21, 1995 Complainant met with Riley
Wallace at the airport while the team was leaving for the road trip.
Complainant told Riley Wallace that he felt his civil rights were
violated and that it wasn't fair for Riley Wallace "to do nothing".
Complainant then asked Riley Wallace if he would suspend his son "to
make him an example for the African Americans on the team". Riley
Wallace stated that he considered the matter "closed" and would not
take any further action because he felt his son had "suffered
enough". Riley Wallace then told Complainant to "go hire a lawyer
and do what you have to do to feel good about this". (Tr. at 144,
148-149; Ex. 1; Ex. 39 at 94-95, 101-102)
40. Complainant felt slighted by Riley Wallace's attitude and
comments. Complainant and his family then went to UH and asked
Yoshida to take action against Respondent Wallace. Yoshida told
Complainant that he thought the matter had been resolved, that no
disciplinary action had been taken against Respondent Wallace but
that he would discuss the matter with Riley Wallace. That evening
Yoshida called Riley Wallace and they agreed to immediately suspend
Respondent Wallace. On or about that day, Yoshida also asked Primas
and Sheriff to submit written reports on the incident. (Tr. at 145,
149-150, 326-328; Ex. 17 at 42-43; 49-51; Exs. 22, 23, 25, 38;
Ex. 39 at 102)
41. On Thursday, February 23, 1995 Yoshida met with Respondent
Wallace, discussed the incident with him and informed him that he
was suspended. Yoshida then called Complainant and said, "Your
civil rights have been violated . . . if it's any consolation, Rob
Wallace had been suspended." On Friday, February 24, 1995, Yoshida
met with the Department's Athletic Advisory Board, who recommended
that Respondent Wallace be terminated as a student manager. Yoshida
then terminated Respondent Wallace as student manager for the
remainder of the 1994-95 season. Respondent Wallace, however,
retained his athletic scholarship for this school year. (Tr. at 89-
90, 92-93, 145, 327-332; Ex. 12 at 77-80; Ex. 17 at 46-53; Ex. 23;
Ex. 39 at 95)
42. At a team meeting held some time after the road trip,
Riley Wallace announced that Respondent Wallace had been terminated.
He asked two African American seniors how they felt about the
incident and whether they wanted Respondent Wallace to be
terminated. The two players expressed strong disapproval of
Respondent Wallace's use of the word "nigger" but stated that they
knew Respondent Wallace was not racist and they would support his
return to the team. (Tr. at 407-409; Ex. 14 at 33-34; Ex. 15 at
27-28, 30)
43. About a week after the incident, Primas met with the arena
staff, briefly discussed the incident and instructed the staff to
"treat everybody with respect" and to remain calm and professional
in such situations. To date, however, Respondent UH has not held
any training sessions with its coaches, student athletes or arena
staff about state or federal public accommodation laws or procedures
for handling discrimination complaints. (Tr. at 262-265, 332-334,
407, 422-423; Ex. 17 at 55-58; Ex. 21 at 27-28)
44. Prior to this incident, no one had ever insulted
Complainant by calling him "nigger" to his face. Since moving to
Hawaii, Complainant has tried to hold himself out as a positive
example of this state's small African American community. He is a
very proud, self-made and self-reliant person. He has worked up to
three jobs at a time to support himself and his family. He is
respectful towards people of all races. (Tr. 163; Ex. 39 at 84,
86, 103-105)
45. After being called a "nigger", Complainant felt very
angry, hurt, embarrassed, humiliated, sad and "sick inside". He
felt bad about having to explain to his wife (who is from Japan) and
daughter what the word "nigger" meant. He was also angry that UH
personnel disputed his version of the incident and would not take
his complaint or his civil rights seriously. He felt that
Respondent UH treated him like a "little person" and did not
appreciate his many contributions as a booster and long time
supporter of the team. Since the incident, Complainant and his
family have not attended UH men's basketball practices, games or
booster events. Complainant continues to feel sad, hurt and
withdrawn because he has not received a public apology from
Respondents and because he is no longer involved with the basketball
program. (Tr. at 133-134, 151, 156, 158-159, 220,
226- 227; Ex. 39 at 86, 102-106, 112-113)
46. After the incident, Respondent Wallace felt uncomfortable,
ashamed and embarrassed when he was among his African American
teammates and other African American students on campus. He decided
he could no longer live in Hawaii because he felt his presence would
create controversy for his father and the team. He transferred to
a mainland school and currently lives and works in Las Vegas. (Tr.
at 14, 16, 91-92, 101-102; Ex. 12 at 12-14, 80-81; Ex. 14 at 39-
40; Ex. 17 at 47)

III. CONCLUSIONS OF LAW[3]
A. Jurisdiction
1. Respondent UH
Respondent UH, as the owner and operator of the Special
Events Arena, admits that it is a place of public accommodation. It
is therefore subject to the provisions of H.R.S. Chapter 489 [4].
2. Respondent Wallace
Pursuant to H.R.S.  489-3, this Commission has
jurisdiction over Respondent Wallace only if he is an owner,
operator, employee or agent of a public accommodation. See, House
SCR No. 233-86, 1986 House Journal at 1086-1087 (H.R.S. Chapter 489
enacted to create state law similar to Title II of the Civil Rights
Act of 1964) and Senate Report No. 872, 1964 USCCAN Vol 2 at 2359 (
201 of Title II applies to owners, operators or employees of public
establishments); see also, Hearings Examiner's Order Denying
Executive Director's Motion For Partial Summary Judgment filed on
September 15, 1997. The Executive Director argues that Respondent
Wallace was an employee and/or agent of Respondent UH. Respondents
argue that he was neither.


a. Whether Respondent Wallace was an employee
In the case of In Re Santiago / Iolani Swim Club, DR No. 92-007
(March 5, 1993), this Commission adopted the traditional economic
realities test to determine whether a person is an employee under
H.R.S. Chapter 378. I conclude that portions of this test are
relevant in determining employee status under H.R.S. Chapter 489,
particularly the following factors:
a) the degree of control the employer has over the means and
manner of the worker's performance;

b) whether the parties believe they are creating the
relationship of employer and employee;

c) whether the worker receives compensation in the form of
salary or wages;

d) the manner in which the work relationship is terminated;

e) whether benefits, such as annual leave, retirement, health
insurance, etc. are afforded;

f) whether the employer withholds taxes.
The Executive Director argues that Respondent Wallace was an
employee of Respondent UH because: 1) he was under the control and
supervision of Respondent UH's coaches; 2) his duties involved the
use of Respondent UH's equipment and facilities; 3) his duties
were part of Respondent UH's regular business of intercollegiate
athletics; 4) he received compensation in the form of a full
athletic scholarship; and 5) he could receive some health care
from the Department's training room.
However, the weight of the evidence shows that Respondent
Wallace was a student-athlete on full scholarship, not an employee
of Respondent UH. The contracts between Respondent Wallace and
Respondent UH are titled "Athletic Agreement" and make no mention of
an employment relationship or payment of wages or salary. (Exs. 32,
32-A, 32-B) Instead, the contracts grant "financial aid" to a
"student-athlete". Respondent UH kept monies for such financial
aid in a separate account from its payroll monies, and administered
such monies through the Department, not its personnel office.
The record also shows that Respondent Wallace was subject to
policies contained in the Student-Athlete Handbook, not an employee
personnel manual. The Handbook makes numerous references to being
a "student", an "athlete", a "student-athlete" and a participant in
intercollegiate athletics competition. It makes no reference to
being an "employee". (Ex. 27) Both Respondents considered
Respondent Wallace to be a student athlete, not an employee.
(Tr. at 96, 113) Respondent Wallace did not receive any annual
leave, workers' compensation or medical insurance benefits.
Finally, Respondent UH did not assign Respondent Wallace an employee
identification number and did not withhold taxes for him.
For these reasons, I conclude that Respondent Wallace was not
an employee of Respondent UH.


b. Whether Respondent Wallace was an agent
An agency relationship is established when a principal
delegates authority to an agent to do certain acts on the
principal's behalf. Cho Mark Oriental Food v. K & K International,
73 Haw. 509, 515 (1992) (emphasis added). To establish an agency
relationship in the present case, the Executive Director must show
that Respondent UH delegated Respondent Wallace the authority to
deal with the public and/or spectators at basketball games on its
behalf. See, Hearings Examiner's Order Denying Executive Director's
Motion For Partial Summary Judgment filed on
September 15, 1997.
Such delegation of authority may be actual or apparent. Actual
authority may be created by: a) express agreement (oral or written
agreement between the parties); or b) the implied conduct of the
parties (whether the agent reasonably believes, because of the
conduct of the principal, that the principal desired him so to act).
Id. at 515-516. Apparent authority arises when the principal does
something or permits the agent to do something which reasonably
leads another to believe that the agent had such authority. Id. at
516-517.
Respondents argue that Respondent Wallace was not an agent of
Respondent UH because he did not have the authority to take tickets,
seat, or monitor spectators at basketball games.[5] They contend
that Respondent Wallace was present at the February 18, 1995
basketball game merely as a student athlete and/or the son of Riley
Wallace. The Executive Director argues that Respondent Wallace was
an agent because he was a member of the basketball team who was
required to be at practices, games and fund-raisers, was considered
to be a representative of Respondent UH at these events, and was
authorized to provide entertainment to and interact with the public
at these events. I agree.
The record shows that Respondent UH considered student managers
to be members of the basketball team. Respondent UH required all
team members, including Respondent Wallace, to attend practices,
games and fund-raisers.
Respondent UH expressly authorized basketball team members to
be its representatives at these practices, games and fund-raisers.
The Student-Athlete Handbook states: "[w]hen you participate in
intercollegiate athletic competition, you are representing the
University of Hawaii . . . By joining the UHM's intercollegiate
athletic program, you have become a representative not only of your
team, but of your University . . . As long as you are a student-
athlete, you are representing the University . . ." (Ex. 27 at
7-8) Respondent Wallace confirmed that he understood himself to be
a representative of Respondent UH when he was a student manager at
practices, games and fund-raisers. (Tr. at 68-69)
The record also shows that although Respondent Wallace was not
responsible for taking tickets, seating or monitoring spectators, he
was authorized to provide entertainment to and interact with the
public at practices, games and fund-raisers. Yoshida and Riley
Wallace testified that a central purpose of the men's basketball
team is to provide entertainment to the community. (Ex. 14 at 7;
Ex. 17 at 7-8) Respondent Wallace testified that team practices
were open to the public, that he and other team members were allowed
to talk to spectators and were expected treat them courteously.
(Tr. at 33-34, 58) Respondent Wallace also testified that he was
required to participate in two annual fund-raisers and was expected
to socialize and mingle with the public who attended. (Tr. at 25-
27) Finally, Respondent Wallace acknowledged that he was required
to interact with spectators at basketball games in a positive
manner, pursuant to the guidelines in the Handbook. (Tr. at 109-
110) Accordingly, the Handbook states:
. . . Remember that as a UHM student-athlete your actions and
conduct in everything you do reflect upon the University and
the Athletic Program . . .
. . .
The Department of Intercollegiate Athletics requires coaches,
trainers, and staff to conduct themselves in a way which
creates a positive image of the people, values and traditions
associated with the University, the WAC and the NCAA. As a
student-athlete, you are expected to uphold the same standards
of conduct that have been adopted by the Department and the
University.

(Ex. 27 at 7-8) The Handbook also prohibits student-athletes from:
a) using obscene/inappropriate language or gestures towards
spectators; b) physically abusing spectators; c) throwing
objects at spectators; d) encouraging spectators to "boo"; or e)
making public statements that are negative or controversial. (Ex.
27 at 4-5)
For these reasons, I conclude that Respondent UH delegated
Respondent Wallace, as a member of the basketball team, the
authority to provide entertainment to and interact with the public
on its behalf at basketball practices, games and fund-raisers.
During the February 18, 1995 basketball game, Respondent Wallace was
an agent of Respondent UH, providing entertainment to Complainant,
a spectator. He is 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 . . . " The
statute prohibits single isolated instances of discriminatory
conduct by a public accommodation or its owners, operators,
employees or agents.[6] In Re Smith / MTL et. al., Docket No. 92-
003-PA-R-S (November 9, 1993).
A violation of H.R.S.  489-3 is established if the Executive
Director shows, by a preponderance of the evidence, that an owner,
operator, employee or agent of a public accommodation made a racial
insult to a customer or about a customer in the course of serving
that customer. Id.; King v. Greyhound Lines, Inc., 656 P.2d 349,
351 (Or. App. 1982). Any customer who must suffer racial insults 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.[7] Smith, supra; King, supra. This interpretation of
H.R.S.  489-3 recognizes that
. . . the chief harm resulting from the practice of
discrimination by establishments serving the general
public is not the monetary loss of a commercial
transaction or the inconvenience of limited access but,
rather, the greater evil of unequal treatment, which is
the injury to an individual's sense of self-worth and
personal integrity.
King, supra at 352.
In the present case, the Executive Director has shown by a
preponderance of the evidence that Respondent Wallace insulted
Complainant's race by using the slur "nigger" towards Complainant
twice during the February 18, 1995 basketball game. Respondent
Wallace contends that his use of the word "nigger" was not racially
motivated because he is not biased against African Americans.
However, Respondent Wallace knew that the word "nigger" was a
racially derogatory term and would not have used the word if
Complainant had not been African American. Furthermore, Respondent
Wallace admitted he used the term because it was the "ugliest thing
[he] could say" to "hurt" Complainant. Respondents also contend
that Respondent Wallace's use of the epithet was provoked by
Complainant's abusive comments about Riley Wallace. However,
Sheriff testified that Complainant's comments were not so offensive
as to merit any warning. (Ex. 21 at 11-13). In addition, both
Respondent Wallace and Yoshida admitted that even if provoked,
student athletes were prohibited from using racial slurs when
speaking to spectators. (Tr. at 74, 339; Ex. 17 at 48) Thus, even
if Respondent Wallace is not biased against African Americans, or
even if he was defending his father, he nevertheless deliberately
insulted Complainant's race and committed a discriminatory act. His
conduct therefore violated  489-3.


C. Liability
1. Respondent UH
The doctrine of respondeat superior is applicable to cases
involving discriminatory acts committed by employees or agents of a
public accommodation against their customers.[8] In Re Smith,
supra, (bus company liable under H.R.S. Chapter 489 for acts of its
bus driver); 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 club 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); King, supra, at 352 (bus company liable for actions
of its ticket agent). Respondent UH is therefore liable for the
discriminatory acts of its agents, regardless of whether the acts
were unauthorized or prohibited. Because Respondent Wallace was an
agent of Respondent UH when he committed the above violation,
Respondent UH is liable for his conduct.[9]

2. Respondent Wallace
The statutory language and legislative history of H.R.S.
Chapter 489 are silent as to whether a manager, employee or agent of
a place of public accommodation may be individually liable for
violating H.R.S.  489-3. However, other provisions within Chapter
489 indicate that individuals as well as public accommodations may
be liable for prohibited discriminatory practices. H.R.S.  489-5
prohibits two or more persons from conspiring to aid, abet, incite
or coerce a person to engage in a discriminatory practice or to
wilfully obstruct or prevent a person from complying with the
chapter. H.R.S.  489-7.5 allows a complainant to sue such persons
for damages sustained. H.R.S.  489-8 allows this Commission to
assess civil penalties against individuals who violate Chapter 489
and states that such penalties shall be cumulative to other remedies
available.
In addition, other state public accommodation statutes which
provide for damages allow complainants to seek such relief against
individual employees or agents. See, Vermont Statutes Annotated,
Title 9  4502, 4506; Oregon Revised Statutes  30.670, 30.680.
For these reasons, I conclude that Respondent Wallace, as an
agent of Respondent UH, is individually liable for violating H.R.S.
 489-3.


D. Remedies
The Executive Director requests that Respondents be ordered to
pay Complainant $30,000 compensatory damages for emotional distress
and be assessed a civil penalty of $10,000 each. The Executive
Director also seeks various forms of equitable relief.


1. Compensatory Damages
Pursuant to H.R.S. 368-17, the Commission has the
authority to award compensatory damages for any pain, suffering,
embarrassment, humiliation, emotional distress, loss of enjoyment of
life or other injury Complainant suffered as a result of
Respondents' acts. The amount awarded as compensatory damages is
generally based on a consideration of the extent to which
Respondents' discriminatory conduct caused the harm and the extent
to which other factors, if any, also caused the harm. It should
also reflect the nature, severity and duration or expected duration
of the harm. Restatement of Torts 2d  905 (1979); Compensatory and
Punitive Damages Available Under Section 102 of the Civil Rights Act
of 1991, EEOC Notice No. N 915.002 (July 14, 1992), EEOC Compliance
Manual  603; Montalvo v. Lapez, 77 Haw. 282, 306 (1994).
In the present case, the record shows that Respondent Wallace's
racial insults initially caused Complainant to feel extremely
shocked, angry, hurt and embarrassed. Okai, Reznick and Sheriff
observed that Complainant was extremely upset and angry after the
incident. (Tr. at 290-291, 377; Ex. 21 at 16). Mrs. White
confirmed that Complainant was upset and had difficulty sleeping
that evening. (Tr. at 226-227) Complainant also testified that he
felt very bad about having to explain the term to his wife and
daughter and recounting the incident with his co-workers. For the
next few days he continued to feel very hurt, sad, degraded as a
human being and "sick inside". Considering these circumstances, I
determine that $10,000 is appropriate compensation for Complainant's
emotional distress caused by Respondent Wallace's discriminatory
conduct.
The record also shows that Respondent's UH's defensive response
and failure to take immediate, appropriate, corrective action[10]
exacerbated Complainant's distress. Sheriff reacted to the incident
by demanding, "What the hell were you doing?" and insinuating that
Complainant was at fault. Sheriff also insisted that he couldn't
do anything about the matter, refused to allow Complainant file a
complaint and even argued with Complainant about whether the word
"nigger" had been used. Okai observed that such actions made
Complainant more angry and upset. (Tr. at 290-291) Riley Wallace
treated his son's conduct as a personal matter, initially refused to
discipline him, instructed team members not to talk to Complainant
and told Complainant to "go hire a lawyer and do what you have to
do". After the incident, Yoshida also told Complainant that he
thought the incident was a personal "reaction . . . in terms of a
father-son relationship", permitted the Wallaces to meet alone with
Complainant and did not fully investigate the matter or take
disciplinary action against Respondent Wallace until Complainant
requested it. Finally, Respondent UH has yet to apologize to
Complainant for the incident.
Complainant had been a very proud, self-made and self-reliant
person who struggled to make a life for himself and his family in
Hawaii and who tried to be a positive example of the African
American community in Hawaii. Complainant and Mrs. White credibly
testified that Respondent UH's actions caused him to feel more hurt,
embarrassed, worthless and like a "little person" whose civil rights
were unimportant. Considering these circumstances, I determine that
$10,000 is appropriate compensation for Complainant's emotional
distress caused by Respondent UH's conduct.


2. Civil Penalties
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 Wallace called
Complainant a "nigger" in a fit of anger without thinking.
Immediately after the incident he admitted his actions to Yoshida
and Riley Wallace. He also explained his actions and apologized to
Complainant. He is sincerely sorry for the incident and is not
likely to engage in such conduct again. For these reasons, I
determine that a penalty of $500 is appropriate.
The record also shows that although Respondent UH did not take
immediate, appropriate corrective action, it subsequently
investigated the incident further and disciplined Respondent
Wallace. After Complainant met with Yoshida on February 21, 1995,
Yoshida interviewed Respondent Wallace and suspended him, received
statements from Primas and Sheriff, met with the Athletic Advisory
Board and terminated Respondent Wallace within the next few days.
Considering these circumstances, I determine that a penalty of
$1,000 is appropriate.


3. Equitable Relief
The Executive Director also seeks to have the Commission
order:
a) both Respondents to issue a public apology to Complainant
to be published at least once in the Sunday edition of the
Honolulu Advertiser;

b) Respondent UH to adopt a comprehensive policy prohibiting
unlawful discrimination in its public accommodations that
includes procedures for reporting incidents of alleged
discrimination and for investigating and correcting any
discrimination found;

c) Respondent UH to conduct training on such policy for the
Department's employees, agents and student athletes;

d) Respondent UH to post notice of such policy in
conspicuous places in its public accommodations;

e) Respondent UH to publish the results of this contested
case hearing to the print, radio and television media; and

f) Respondent UH to keep records of all complaints of
discrimination regarding the use of its public
accommodations.
Because of the public nature and media coverage of the
incident[11] I recommend that the Commission order both Respondents
to issue a public apology to Complainant, which is reviewed and
approved by the Executive Director, is issued as a press release and
is published at least once in the Sunday edition of the Honolulu
Advertiser.
Although H.R.S.  304-1 mandates that no persons shall be
deprived of the privileges of the University because of race, color,
religion, sex, national origin or disability, Respondent UH does not
have a specific written anti-discrimination policy for its public
accommodations. I therefore recommend that the Commission order
Respondent UH to develop and implement a written policy prohibiting
discrimination in its public accommodations that includes procedures
for: a) accepting complaints of alleged discrimination; b) fully
investigating complaints and correcting any discrimination found;
and c) retaining records of all complaints for at least one year
from the date such complaints are made.
The Commission should also order Respondent UH to post notices
of such policy in conspicuous places in the Department's places of
public accommodation and to conduct training on such policy with the
Department's employees and student athletes.
The best way to publicize this decision to the public is to
publish the attached Public Notice (Attachment 1) in the Honolulu
Advertiser Sunday edition and one following weekday in a newspaper
having a general circulation in Honolulu, Hawaii within 10 days of
the Commission's final decision in this matter.

IV. RECOMMENDED ORDER
Based on the matters set forth above, I recommend that the
Commission find and conclude that Respondents Wallace and UH
violated H.R.S.  489-3 by denying Complainant the full and equal
enjoyment of a place of public accommodation.
For the violations found above I recommend that, pursuant to
H.R.S.  368-17 and 489-8, the Commission should order:
1. Respondents Wallace and UH to jointly and severally pay
Complainant $10,000 as damages in compensation for the emotional
injuries caused by Respondent Wallace's unlawful conduct.
2. Respondent UH to pay Complainant $10,000 as damages in
compensation for the emotional injuries caused by its conduct.
3. Respondent Wallace to pay a civil penalty of $500 to the
State of Hawaii General Fund.
4. Respondent UH to pay a civil penalty of $1,000 to the
State of Hawaii General Fund.
5. Respondents Wallace and UH to jointly issue a public
apology to Complainant, as stated above.
6. Respondent UH to adopt a policy prohibiting unlawful
discrimination in its public accommodations, as stated above.
7. Respondent UH to conduct training on such policy for the
Department's employees and student athletes.
8. Respondent UH to post notices of such policy in
conspicuous places in the Department's places of public
accommodation.
9. Respondents Wallace and UH to jointly publish the attached
notice (Attachment 1), as stated above.

Dated: Honolulu, Hawaii, February 2, 1998.

HAWAII CIVIL RIGHTS COMMISSION



/s/____________________________
LIVIA WANG
Hearings Examiner



Copies sent to:

Cheryl Tipton, Esq. HCRC Enforcement Attorney
Russell A. Suzuki, Esq. Deputy Attorney General
for Respondent State of Hawaii
Jeffrey S. Portnoy, Esq. Attorney for Respondent Rob Wallace


APPENDIX A


On August 17, 1995 Complainant Eric C. White filed a complaint
with this Commission alleging that Respondent State of Hawaii,
University of Hawaii (hereinafter "UH") denied him the full and
equal enjoyment of a place of public accommodation by not allowing
him to sit in a non-booster area. He amended the complaint on
February 12, 1996 to include Rob Wallace as a Respondent and to
allege that Respondents denied him the full and equal enjoyment of
a place of public accommodation when Respondent Wallace used a
racial epithet towards him during a basketball game.
On February 20, 1997 the complaint was docketed for hearing and
a Notice Of Docketing Of Complaint was issued.
The Executive Director filed its Scheduling Conference
Statement on February 28, 1997. Respondent UH filed its Scheduling
Conference Statement on March 7, 1997 and Respondent Wallace filed
his Scheduling Conference Statement on March 11, 1997. A scheduling
conference was held on March 12, 1997 and the Scheduling Conference
Order was issued on March 13, 1997. On May 13, 1997 an Amended
Scheduling Conference Order was issued.
On April 17, 1997 the Executive Director filed a motion to
withdraw its stipulation that Respondent Wallace was not an employee
of Respondent UH. On April 30, 1997 the Hearings Examiner granted
the Executive Director's motion.
On July 30, 1997 the Executive Director filed a Motion for
Partial Summary Judgment on the issues of: a) whether Respondent

- i -
Wallace was an employee of Respondent UH; b) whether Respondent
Wallace, as an employee, violated H.R.S.  489-3;
c) whether Respondent Wallace, as an employee, is individually
liable for violating H.R.S.  489-3; d) whether Respondent UH is
liable for the discriminatory acts of Respondent Wallace as its
employee; e) whether Respondent Wallace was an agent of Respondent
UH; f) whether Respondent Wallace, as an agent, violated H.R.S. 
489-3; g) whether Respondent Wallace, as an agent, is individually
liable for violating H.R.S.  489-3; h) whether Respondent UH is
liable for the discriminatory acts of Respondent Wallace as its
agent; i) whether Respondent Wallace violated H.R.S.  489-8 even
if he was not an employee or agent of Respondent UH.
On August 14, 1997 Respondents filed memoranda in opposition to
the motion for partial summary judgment. On August 22, 1997 the
Executive Director filed a reply memorandum. A hearing on the
motion was held on September 3, 1997 at the Hawaii Civil Rights
Commission conference room. Participating were: Enforcement
Attorney Cheryl Tipton, on behalf of the Executive Director; Deputy
Attorney General Russell A. Suzuki, on behalf of Respondent UH; and
Jeffrey S. Portnoy, Esq. on behalf of Respondent Wallace. On
September 8, 2997 the Executive Director filed a supplemental
memorandum. On September 11, 1997, Respondent Wallace filed a
supplemental memorandum. On September 15, 1997 the Hearings
Examiner issued an order denying the Motion for Partial Summary
Judgment.

- ii -
On September 3, 1997 Respondent UH filed a Motion to Dismiss
Complaint on the grounds that: a) the State has not waived its
sovereign immunity to be sued for monetary damages or to be sued for
the unauthorized acts of its employees or agents under H.R.S.
Chapter 489; b) even if the State waived its sovereign immunity,
jurisdiction is exclusively with the circuit courts;
c) Respondent Wallace is not an employee or agent of Respondent UH;
and d) Respondent UH cannot be liable for an employee's exercise
of his/her First Amendment Rights in a public forum. On September
10, 1997 the Executive Director filed memorandum in opposition to
the motion. On September 11, 1997 Respondent UH filed a reply
memorandum.
A hearing on the motion was held on September 12, 1997 at the
Hawaii Civil Rights Commission conference room. Participating were:
Deputy Attorney General Russell A. Suzuki, on behalf of Respondent
UH; Enforcement Attorney Cheryl Tipton, on behalf of the Executive
Director; and Sarah O. Wang, Esq. on behalf of Respondent Wallace.
On September 15, 1997 Respondent UH and the Executive Director filed
supplemental memoranda. On September 15, 1997 the Hearings Examiner
issued an order denying the Motion to Dismiss Complaint.
On September 3 and 16, 1997 the parties stipulated to extend
the discovery cut off date.
On September 16, 1997 the Executive Director filed a Motion for
Stay of Hearing Pending Interlocutory Appeal of Hearings
- iii -
Examiner's Order Denying the Executive Director's Motion for Partial
Summary Judgment and a correction to that motion. On September 18,
1997 the Executive Director withdrew this motion.
On August 29, 1997 notices of hearing and pre-hearing
conference were issued. On September 10, 1997 Respondent UH filed
its pre-hearing conference statement. On September 15, 1997 the
Executive Director and Respondent Wallace filed their pre-hearing
conference statements. On September 17, 1997 a pre-hearing
conference was held and on that date a pre-hearing conference order
was issued.
Pursuant to H.R.S. Chapters 91 and 368, the contested case
hearing on this matter was held on September 22, 23 and December 2,
1997 at the Hawaii Civil Rights Commission conference room, 830
Punchbowl Street, room 411, Honolulu, Hawaii before the undersigned
Hearings Examiner. The Executive Director was represented by
Enforcement Attorneys Cheryl Tipton and April L. Wilson-South.
Complainant White was present during portions of the hearing.
Respondent Wallace was represented by Jeffrey S. Portnoy, Esq. and
Respondent Wallace was present during portions of the hearing.
Respondent UH was represented by Deputy Attorney General Russell A.
Suzuki.
On December 19, 1997 the parties filed post-hearing briefs.


- iv -
APPENDIX B
(not in electronic form)

ATTACHMENT 1


PUBLIC NOTICE

published by Order of the
HAWAII CIVIL RIGHTS COMMISSION
DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS
STATE OF HAWAII


After a full hearing, the Hawaii Civil Rights Commission has
found that Respondent State of Hawaii, University of Hawaii and
Respondent Rob Wallace violated Hawaii Revised Statutes Chapter 489,
Discrimination In Public Accommodations, when Rob Wallace, then a
student manager of the University of Hawaii men's basketball team,
denied a spectator the full and equal enjoyment of a place of public
accommodation by using racial epithets towards that spectator during
a basketball game held on February 18, 1995 at the Special Events
Arena. (William D. Hoshijo, Executive Director, on behalf of the
complaint filed by Eric White, v. State of Hawaii, University of
Hawaii and Rob Wallace, Docket No. 97-001-PA-R, [date of final
decision] 1998).

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

1) pay that spectator a monetary award to compensate him for
the emotional injuries he suffered;

2) pay a civil penalty to the State of Hawaii general fund;

3) issue a public apology to that spectator.

The Commission has also order the State of Hawaii, University

of Hawaii to:

4) adopt a policy prohibiting unlawful discrimination in its
public accommodations, conduct training on such policy for
its employees and student athletes, and post notices of
such policy in its places of public accommodation.


DATED: _____________________


BY: ______________________________
Authorized Agent for State of Hawaii,
University of Hawaii

BY: ___________________________
Rob Wallace


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

footnotes:

1. As a preliminary matter, this Hearings Examiner has
considered the proposed findings of fact filed by the Executive
Director. To the extent that the Executive Director's proposed
findings of fact are in accord with the findings of fact stated
herein, they are accepted, and to the extent that they are
inconsistent, they are rejected. In addition, some of the proposed
findings are omitted because they are irrelevant or not necessary to
determine the material issues in this case.

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 22-23 and December 2, 1997; "Ex." followed by a number
refers to the exhibits jointly submitted by the Executive Director
and Respondents.

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. Respondent UH argues that this Commission does not have
jurisdiction over it because: 1) as the State of Hawaii, it has
not waived its sovereign immunity to be sued for monetary damages or
to be sued for the unauthorized acts of its employees or agents
under H.R.S. Chapter 489; and 2) even if it waived its sovereign
immunity, jurisdiction is exclusively with the circuit courts. See,
Respondent UH's Motion To Dismiss Complaint For Lack Of Subject
Matter Jurisdiction filed on September 3, 1997. However, for the
reasons stated in my September 15, 1997 order denying this motion,
I disagree.

5. The record shows that the arena staff, student ushers and
security personnel were responsible for these duties. (Tr. at 238,
246; Ex. 21 at 26)

6. Therefore, contrary to Respondent UH's argument, the
Executive Director is not required to show that Respondent Wallace's
conduct created a severe or pervasive discriminatory environment.

7. Respondents argue that this interpretation and application
of H.R.S. Chapter 489 violates Respondent Wallace's First Amendment
free speech rights. As stated in my September 15, 1997 order
denying Respondent UH's Motion To Dismiss Complaint, this Commission
and its Hearings Examiner cannot rule on the constitutionality of
its statutes as written or applied. HOH Corp. v. Motor Vehicle
Industry Licensing Bd., 69 Haw. 135, 141-143 (1987); H.R.S.  91-
14(g)(1); 4 Davis Administrative Law Treatise,  26.6 (1983). Such
authority is vested in the circuit courts of this state. HOH,
supra; H.R.S.  91-14(g)(1).

The U.S. Supreme Court has held that "fighting words", which by
their very utterance inflict injury or tend to incite an immediate
breach of the peace, are not protected by the First Amendment
because they are not an essential part of any exposition of ideas,
and are of slight social value clearly outweighed by interests in
order and morality. Chaplinsky v. New Hampshire, 315 U.S. 568, 86
L.Ed. 1031, 1035, 62 S.Ct. 766 (1941). In addition, the Court has
held that a government employee's work place speech which does not
relate to any matter of political, social or other community concern
is not protected by the First Amendment. Connick v. Myers, 461 U.S.
138, 75 L.Ed.2d 708, 719-720, 103 S.Ct. 1684 (1983); see also, Black
v. City of Auburn, 857 F. Supp. 1540, 1548-1549 (M.D. Ala. 1994)
(police supervisor's derogatory name calling, i.e., use of the words
"bitch", "whore" and "hen" when referring to women, was not a matter
of public concern and was not protected speech). The Supreme Court
has also indicated that a public employee's speech which impedes the
proper performance of that employee's daily duties or interferes
with the operation of government services may not be protected
speech. Pickering v. Board of Education, 391 U.S. 563, 20 L.Ed.2d
811, 819-820, 88 S.Ct. 1731 (1968). Finally, the Court has stated
that because Title VII is directed at conduct, not speech, the use
of sexually derogatory "fighting words" in a work setting can
violate Title VII without running afoul of the First Amendment
because such words are incidental to prohibited conduct. R.A.V. v.
St. Paul, 505 U.S. 377, 120 L.Ed.2d 305, 322, 112 S.Ct. 2539 (1992).

In the present case, Respondent Wallace's use of the epithet
"nigger", uttered to "hurt" Complainant and in the context of
threats to "kick [Complainant's] ass", constitute "fighting words".
Respondent Wallace's conduct was also derogatory name calling
unprotected by the First Amendment and/or speech incidental to
proscribed conduct. Finally, Respondent Wallace's use of the word
"nigger" impeded his duty to provide Complainant entertainment in a
positive manner and interfered with Respondent UH's mandate to
extend its privileges to all persons without regard to race. See,
H.R.S.  304-1.

9. Alternatively, if this Commission finds and concludes that
Respondent Wallace was not an employee or agent of Respondent UH,
Respondent UH can be liable for his discriminatory conduct as a
third party if it knew or should have known of such conduct, had
sufficient control over him, and failed to take immediate and
appropriate corrective action. See, Neldaughter v. Dickeyville
Athletic Club, ERD Case No. 9132522 State of Wisconsin Labor and
Industry Review Commission (May 24, 1994, reprinted in attached
Appendix B) (public accommodation may be liable for discriminatory
act of third party patron if it has sufficient degree of control
over patron).

Corrective action is immediate and appropriate if it: 1)
involves a prompt and thorough investigation of the allegations; 2)
ends the discriminatory conduct; and 3) deters future
discriminatory conduct by the same offender or others. If no
corrective action is taken, or if the corrective action attempted is
inappropriate, liability will attach. Tseu/Collins v. Cederquist,
Inc., Docket No. 95-001-E-R-S (June 28, 1996).

In the present case, Respondent UH knew of Respondent Wallace's
discriminatory conduct moments after it occurred. During the game,
Complainant told Riley Wallace that his son had used the "N" word.
Right after the game, Complainant told Sheriff that Respondent
Wallace called him "nigger" and Sheriff informed Yoshida about the
incident. Respondent UH also had sufficient control over Respondent
Wallace. Its coaches had the authority to supervise and discipline
him.

The evidence also shows that although Primas quickly intervened
and Yoshida ultimately terminated Respondent Wallace as student
manager, Respondent UH did not properly and thoroughly investigate
Complainant's complaint and did not take adequate steps to deter
future discriminatory conduct. Sheriff initially responded to the
matter by asking Complainant, "What the hell were you doing?".
Sheriff and the arena security staff refused to allow Complainant to
make a complaint and even argued with Complainant about whether the
word "nigger" was used. The post-game meeting between Complainant
and the Wallaces was initiated by Artie Wilson, who was not a UH
employee or agent. Riley Wallace treated his son's conduct as
personal matter - a son "defending his father", and at first refused
to take any disciplinary action. Yoshida also felt the incident
was a personal "reaction . . . in terms of a father-son
relationship". He did not attend the meeting between Complainant
and the Wallaces and did not fully investigate the incident or
discipline Respondent Wallace until Complainant requested it. While
Complainant's statements after the meeting with the Wallaces may
have led Yoshida to believe the matter had been resolved, Respondent
UH was still required to fully investigate the incident and insure
that it would not recur. To date, Respondent UH has not met with
its arena staff or athletic team members to express strong
disapproval of such conduct and inform them of any sanctions for
such behavior.

For these reasons, I alternatively conclude that Respondent UH
is liable under H.R.S.  489-3 because it failed to take immediate,
appropriate corrective action.

10. See, footnote 9, supra.

11. The record shows that during the February 18, 1995
basketball game, the incident was reported on the radio and the
television broadcast showed Complainant and Sheriff arguing as well
as Complainant calling out to Riley Wallace after the game. (Ex.
36; Ex. 39 at 79) On February 20, 1995 the Honolulu Advertiser
reported on the incident. (Ex. 34) In addition, the Hearings
Examiner notes that KGMB News reported on the incident and this
contested case hearing on or about September 22, 1997.