CIVIL RIGHTS COMMISSION

STATE OF HAWAII

WILLIAM D. HOSHIJO, Docket No. 98-007-E-D Executive Director, on behalf of the complaint filed by HEARINGS EXAMINER’ S. BRUCE PIED, ) FINDINGS OF FACT, ) CONCLUSIONS OF LAW and ) AND RECOMMENDED ORDER; ) APPENDIX “A”; BRUCE PIED, ) ATTACHMENT “1”.

Complainant-Intervenor, cD vs. cD ) ALOHA ISLANDAIR, INC., Respondent. Consolidated with WILLIAM D. HOSHIJO, Docket No. 98—008-E--D-RET Executive Director, on behalf of the complaint filed by ) BRUCE PIED,

and )

BRUCE PIED, ) ) Complainant—Intervenor, ) ) vs. ) ) ALOHA ISLANDAIR, INC., ) ) Respondent.

HEARINGS EXAMINER’S FINDINGS OF FACT, CONCLUSIONS OF LAW AND RECOMNENDED ORDER

IV.

II.

III.

I.

RECOMNENDED

D.

C.

A.

B.

A.

CONCLUSIONS

B.

FINDINGS

INTRODUCTION

Disability

2.

Jurisdiction

1.

2.

Chronology

Summary

1.

Remedies

7.

4. Liability

6. 3.

5. 2.

1.

Timeliness

b)

a)

c)

b)

a) d)

c)

e) Direct Respondent

Disability b)

Circumstantial a)

Other

Attorney’s

Compensatory Placement

Front

Punitive Back

OF

whether

was

whether

a

ORDER

whether

whether

whether

hiring prima whether

Respondent’s direct

other

as

non—discriminatory

OF

continuing of

ii.

i. FACT

Pay

a

Pay

Equitable

disabled

Discrimination

LAW

Evidence the

1990 of

post-July

timely

(second

Damages

the

affirmative Respondent

facie

Case

of

of

Complainant

Discrimination

TABLE

evidence

IslandAir

Parties’

Respondent

Fees

Complainant Complainant

—

IslandAir

Complaint

Damages Complainant

July

pre-complaint

violation

Evidence

complaint

period)

case

of

Relief

and

—2—

defenses

OF

1991

Disability

1991

of

Contentions

CONTENTS

Costs

committed

defenses

regarded

had

reason discriminatory

—

was

has

of

(first

July

in

a

qualified

a questionnaire

a

legitimate,

disability

for Discrimination

1994

Pilot

period)

Complainant

not

Position

intent

Page

42

41

49 40

50 48 43

42

40

40

39

36 35 34

36 33

34 32 29

33

30

27

28 25

20

19

19

4

3 3

presented

proceedings,

hire

findings

apply

case to

Respondent

has

through

is

4)

3) person

Executive

attached

I.

not

from

hire

from

maintained

Complainant

were

Having

Respondent

Complainant

B.

The

A.

for

a

with

August

Complainant

at July

person

of

Appendix

not

procedural

at

Summary

Chronology

INTRODUCTION

a

Director

Aloha

least

fact,

a

reviewed

pilot

the

the

timely

1994

disability

1990

a

with

IslandAir

for

hearing

policy

IslandAir,

Bruce

August

Hearings

conclusions

A.

of

position; Complainant

through

allege

because

a

filed

other

the

history

of

and

disability;

Pied

of

Case

1990

together

Parties’

(monocular

contends

and

considered

legitimate,

that:

Examiner

not

July

of

Inc.

and

to

of

of

—3—

should

(hereinafter

his

applied

hiring

1994

the

law

4)

this

(hereinafter

with

Contentions

that:

1)

3)

disability.

hereby

vision)

Respondent

be

present

and

Respondent

Complainant

Complainant

the

monocular

non-discriminatory

case

the

for

dismissed;

recommended

1)

evidence

entire

“Complainant”)

renders

;

a

the

is

Respondent

pilot

“IslandAir”);

2)

complaints

IslandAir

set

pilots;

IslandAir

from

failed

was

record

2)

and

the

position

forth

order.

a

Complainant

August

arguments

following

and

to

IslandAir

qualified

of

reasons.

did

refused

and

in

in

timely

these

this

with

1990

not

the the presently his eyes) and II. building centering binocular objects sees objects and cannot March the as or Respondent conclusions Complainant and importantly, law. in 17, front play transcript Executive jewelry 264) vision, became must 2. 2 1. in 2 . and use that a When virtual three—dimensionally 3 . of small IslandAir’s and May manner Complainant Complainant resides FINDINGS To Unless constantly his of Beyond binocular blind him, making Director’s also Complainant of law, the are Complainant Complainant 10, from vision, models the otherwise 150 reality and 1999; extent could they that very in in contested other OF feet, or exhibits. could his microscopes, Los joint shall move was and FACT’ close Bruce is “Ex.” Complainant computer not that persons indicated, binocular must games. Angeles, substantially left was lacks born cannot exhibits; not be judge case his followed the and Pied deemed cock 18 play eye. —4— with with hearing following stereopsis, head chip He has the years do After “Tr.’ is people. California. night two his has by ping incorporated binocular “Ex.” cannot other distance difficulty a Since a assembly. held to eyes preceding head 46 number old, he 15% different pong, findings goggles, foLlowed see on types aLso year first For that perceive less or February to he refers vision of hit these lose into a instance, the old the contracted threading of (Tr. of by objects page time, peripheral became Complainant watch from baseballs, stereopsis. the a to close fact white ability left. 16—19, letter (sight number areas. at the the conclusions when Complainant also monocular, 3—D 14, a Complainant work to depth 22—23, male needles, few refers refers When a in to movies he vision center 200)2 contain (Tr. virus shoot More such also both feet was who see 26, of so of to to at with pilot, baskets Aviation become accepted Complainant vision This began medical Airlines judge United class 243—248, disability airlines airlines become a not Complainant at command 164) the affect 1301, (those (as (or first 22—23, opposed federal renewed, pilots 3. In certificate 1303 a Air Respondent third medical such with to his class certificates, waiver “SIC”). a is (those bus major a (those or 44—48; Administration Lines, into 264—265; discrimination pilot. train related (9th considered to had Airline Since Airline First gross ability in class parallel distances first medical commercial) driver has with received with Cir. command any demonstrates certificate airline 4 . Ex. American, After class IslandAir as medical revenues case, he been companies class Deregulation gross demonstrates gross branches 72) 1997) In to Ex. certificate which to a park. medical one was and full be professional 1985, and safely the “PlC”) claims basis. rejected medical revenues 77 certificates revenues TWA, (Ex. may year, a of (FAA) is FAA a certain Ninth national may depth. p. In with certificates $100 of be However, that young 43) considered Northwest when medical under pilot Act. on whenever 001) Since be second 1987 certificates used medical the of Circuit of —5— that million categorized commercial a for although over airline. he H.R.S. under Aloha waiver military. 1987 to Because which truck airplanes. boy, approval Complainant pilot, class and was police he fly he Complainant $1 to Court Complainant must requirements to $100 IslandAir, Chapter needed billion/year), allows Delta. has Complainant as be medical driver 32 for Examples lapse $1 Complainant into be of to first with of airlines. million/year). a since officer, years billion/year) renewed fly, his one pilots Appeals regional his Therefore, three 378 (Tr. (Tr. and officers, obtained certificates the has Inc. for of his jobs monocular meets were monocular taught at become old, main at to major set been every a national disability goal held v. 129—130, has airline. pilot riot fire fly Complainant’s does 14-19, and Tseu, for groups: able the Complainant Complainants airlines (or 6 and second that himself preempted on (Tr. wanted his of months. job. captains fighter, not was lapse vision 5 . a second air to vision, Federal regional 162—163) 128 23-25, flying because private at did obtain first major Aloha class lines meet are: F.]d 163— (Tr. not and not to to by If in certain FAA vision criterion, he can perform the duties of a Plc without endangering air commerce. In 1983, Complainant completed a professional pilot course, received his Air Transport Pilot (ATP) 6license and worked as a flight instructor for Aztec Air Academy. From 1988—1939 Complainant attended Long Beach City College and received a two year Associate of Science degree in aeronautics and professional pilot training. (Tr. at 22—23, 26—27, 64—65, 202, 268; Exs. 43, 55, 70, 71, 72, Ex. 77 p. 146, 149) 4. After obtaining his ATP license, Complainant was hired in November 1989 by Big Island Air to fly tour planes. He was also a flight instructor and a member of the Hawaii Civil Air Patrol, Kona Squadron. In January 1990 Complainant obtained a job with Samoa Aviation and was trained and certified to fly DHC-6 passenger 7planes In June 1990 Complainant was hired by Hawaii Pacific Air .and was trained and certified to fly as a first officer on DC 4/ATL98 cargo Complainant sought this position because he wanted to work in Hawaii where his family lived. (Tr. at 26—31, 34—36, 64—65; Exs. 2, 18, 55, 65, 67, 69, 70, 71, 77 P. 147—143) 5. Respondent Aloha IslandAir, Inc. is a wholly owned subsidiary of Aloha Airgroup, Inc. IslandAir is a regional air line which flies DHC—6 passenger planes. Since 1995, IslandAir also flies DHC—8 passenger planes. (Exs. 46, 48, 87)

6 An ATP license enables a pilot to fly as a captain on a commercial airline. (Tr. at 26)

Also known as Dash—6 or Twin Otter planes.

This plane is larger and more complicated than the DHC-6. (Tr. at 60- 61; Exs. 18, 67, 69) —6— 6. From 1989 through December 1990 William Williamson was the president, Riley “Webb” Dickey was director of operations and Bill Ernst was the chief pilot of Respondent IslandAir. All three were responsible for hiring pilots. Pilots were hired in groups, or “classes”. Dickey and Ernst accepted resumes that were either mailed or walked in, reviewed the resumes and informally interviewed the applicants they felt were the best qualified Dickey scheduled applicants who passed the interview 9to take a pilot response test’° and determined which applicants . passed. Ernst then gave applicants who passed the test an Aloha IslandAir Application Form and asked them to provide copies of their licenses and certificates so he could conduct background checks. Final selections were made by Ernst and Williamson, and finalists were invited to attend the next ground school class. If the number of finalists exceeded the number of vacant positions, the non—selected finalists were offered positions in the next ground school class. Ernst also retained the resumes of the top applicants for future

classes. (Tr. at 580—582, 604—605, 609—611, 617—620, 643—650, 667— 670, 678—681, 684—685; Ex. 16, Ex. 80 p. 8—20, 33—39, 68—73, 82, 84)

These interviews were conducted in person or by telephone. Often, if an applicant walked in a resume, and if Dickey or Ernst were free, the applicant was immediately interviewed. (Tr. at 609—610) It) This test determines whether art applicant under stress can still perform in the cockpit. The test was administered by Charles Ray King, manager of flight operations for Aloha Airlines, at a Cost of over Sl00 per test. (Tr. at 584, 610) —7— Pacific hiring with he national spoke and Complainant informed asked response Dickey however, interview August Complainant and Complainant license 582—583, 3 Respondent’s class 6—37) wanted was 7. IslandAir sent 8. of with Complainant pilot&’. determined 25, currently Air four and or Ernst was 617—620, test. Some with to Complainant The Complainant 1990 Ernst major ground a pilots medical “sounded to not record fly August position because that time Dickey, Complainant send Complainant hired Complainant certified about that airline. passenger in 647—648, to school, shois he certificates. July in like copies ground speak was it in Complainant had an who in June applying that 1990. was the the very someone application 666—670; flown scheduled to Complainant again decided to Complainant planes IslandAir of school July an took 1990, August fly —8— Dickey. happy his established DE-{C-6 telephoned for that 1990 passed they this Exs. (Tr. Exs. and to while Samoa hired class. 31, Complainant to a apply plane. planes class. form. 46, heard at telephoned eventually would pilot lA, be test Complainant 1990 t’..io the 48) Aviation attending 31-32, offered Ernst. company, 37, pilots for test. that ground However, on for want job. Ernst Some Ernst 73, a to June 36-38, pilot Samoa in IslandAir IslandAir advance a to time Ernst Ex. take records, thought Complainant, school June had and Complainant the position also hire” 26, he 80 position Aviation prior 516-517, 1990 a because a offered Hawaii p. became pilot short class 1990. asked to that and was and and ATP 24, to in a a concerned that if he quit his Hawaii Pacific Air job to accept the IslandAir position, IslandAir might rescind its offer upon learning that he was monocular, and he would be out of a job altogether. Complainant decided to inform Ernst that he was monocular. On or about August 26, 1990 Complainant telephoned Ernst and stated that he was monocular. Ernst was surprised that Complainant was monocular and still able to fly planes. Ernst had never heard of a monocular pilot and felt that such pilots did not have adequate field vision to see air traffic at night or in bad weather. Ernst told Complainant that he would have to speak to other IslandAir officials about Complainant’s “condition”, and rescinded the offer to attend the August 31, 1990 ground school. (Tr. at 37, 42, 203, 269, 517—519, 652; Ex. 80 p. 25—27, 29—31, 63—64) 9. Ernst then met with Dickey and Williamson. Ernst stated that he thought it was very unusual for a monocular person to be a pilot. Williamson decided that IslandAir should not hire monocular pilcts for insurance liability reasons. Ernst telephoned Complainant and told him that IslandAir’s insurance would not allow them to hire monocular pilots, and that they would not “pursue pilots with [such] condition at this time”. Upon hearing this, Complainant became very disappointed and discouraged. He felt IslandAir didn’t give him a chance to demonstrate his abilities as a pilot. (Tr. at 49, 272—273, 281—282, 519—520, 523, 655—656, 677— 678, 684—685; Exs. 5, 46, 48, Ex. 80 p. 27)

10. IslandAir hired 6 pilots in its August 31, 1990 ground school class. At least one of these pilots, Keith Kamemoto, was

—9—

However, Therefore

experience

at

could

have

at and

had ATP

and

than

Williamson

Complai:.ant’s qualified because

pilots.

the commercial

test.

least

less

(Tr.

50,

604;

took

Williamson

less

response

license t3 ,

Complainant

I)

12 a

at

qualified

12.

not

11.

661)

two

college

a

(Exs.

Ex.

50—52;

Complainant

it

produce

the

person

flight

to

A

Although

Although

In

In

pilots,

than

is pilot,

did

Complainant’s.

person

80

response

December

test

33,

November

difficult

at

did

can

degree,

p.

became

than

Exs.

the

not

time

Complainant.

on

Samoa

39,

required

must

fly

74—75,

did

later

not

David

resumes

the

Ernst

Complainant’ 2 .

38,

offer

was

as

than

46,

test

be

solely

1990

not

to

have

had

Aviation,

1990

pilot

a

39,

than

Vincent

by

at

monocular.

compare

first

82)

43,

of

Complainant.

retained

later have

experience

H.A.R.

Complainant

Dickey

least

a

46,

most

IslandAir

responsible

Complainant

response 70,

—

two

officer

a

10

those

and

Vincent,

48,

23

5

and

was

of

73)

2

or

resigned 12-46-21,

—

Kamemoto

years

or

the

scored Complainant’s

73,

without

19 Camm

pilots’

four

However,

only

test.

4

pilots

hired

a

years

Vincent

old

Ex.

year

for

and

Willener,

year

position

a

IsiandAir

as

lower

having

from

to

had

flight

80

Willener

former

hiring

hired

a college

scored

old,

another

obtain

IslandAir

college

p.

flight

no

IslandAir.

also

thac,

an

times

44—53,

resume,

from

did

did

experience

ATP

in

who

pilots.

an

lower

colleague

Complainant.

scored

degree,

also

not

instructor,

license.

class

not

1990

ATP

and

this

degree

were

retain

hired

61)

have

aircraft

did

license.

on he

—

Ernst

lower

class

1991.

of

(Tr.

this

less

took

as

(Tr.

riot

and

and

and

an

of

at

a 6

decision

application.

hire Tony

questionnaire the

Zimmerman

February chief

back Williamson.

instructed monocular.

Ernst

was

away to

and

in

believed

became Complainant

charge.

hire

Hawaii

asked

monocular.

Rogers

monocular

and

16.

to

15.

14.

13.

pilot.

also

upset

being

that

not

11,

that

monocular

Some

Some

if

Some

Some

and

Complainant

informed

Civil

conducted

Ernst

heard

Ernst

because

Ernst

IslandAir

to

1991.

Lawrence

a

(Tr.

IslandAir

asked

pilots. (“PCQ”)

time

time

Zimmerman

time

time

hire

line

(Tr.

Rights

told

that

gave

informed

at

Complainant

in

on

pilots.

in

he

around

Complainant,

pilot

at

an

if

in

48—49,

Zimmerman,

to

Complainant

still

early

form,

or

January

felt

IslandAir

Complainant

intake

52—53,

(Tr.

Commission.

had

IslandAir

confirm

mid—March

stated

about

and

Complainant

December

he

would

discriminated

at

February 277,

—

which

interview

that was

Complainant

209,

11

1991

52-54,

that

March

whether

vice

had

that

but 370—372;

—

that

not

more

still

Zimmerman’s

Dave

341—342,

1991

he

Complainant

he

1990

He

president

that hired

1991,

consider

12,

783-785;

Williamson

that

Williamson

qualified

[Ernst]

filled

with

was

IslandAir

Mccarty

would

Complainant

or

he

against

1991

Ex.

asked

Complainant

Vincent.

Williamson

sent

351—352)

Complainant.

would early

77

him

of

HCRC

telephone

Ex.

out

not

was

would

telephoned

than

a

p.

had

operations,

still

to

him

had

because

look pre-complaint

5)

January

transitioning

consider

on

investigator

092)

decided

Complainant

Vincent

speak

telephoned

be

because

had

contacted

made

would

or

into

the

number.

Rogers

passed

he

about

Ernst

1991,

with

the

his

the

not

new

was

was

not

and he matter. although him McCarty, Respondent airlines because by Complainant monocular. was the 131—132) other class did telephoned hired given 142, for (Tr. himself or a again new not 17. 18. at Ex. 19. 13 pilots. a to pilot of any he class’ 4 , 55—56, Complainant chief might Hans 80 him 9 include Complainant After This Some Later hiring still and IslandAir other IslandAir pilots also p. position. Some by Linschoten class because blacklist pilot time Ernst 9) 663—664, May but wanted Ernst. asked monocular Zimmerman pilots. time Complainant’s based started 1991 that in was and gave in he formed Rogers in July to then Linschoten 710—711; a Ernst spoke him. Complainant charge was Complainant’s on (the good on mid-July the try pilot. On called 1991 July the afraid to — to resumes informed to a became or new (Tr. candidate, 12 of delay 29, resolve Linschoten hiring resumes resume Complainant Ex. about assistant — stated (Tr. hiring 1991 at Complainant that 1991. then a 16, he 535-540, the line resume July at the Rogers the committee because IslandAir given retained Ex. IslandAir that informed filing pilots. 55, about pilot. matter committee 25, chief heard 77 was IslandAir 279—280) to 771—773; p. and 1991 of of being Complainant to not and them pilot) Rogers that 085, Mccarty with consisting would his In Mccarty, stated the Complainant among other selected considered July by IslandAir complaint 086, IslandAir Ex. had not that and became Ernst. above. those local 77 hire just that 092, 1991 was two but p. he of a wanted

filed

085,

Complainant

not

devised

number positions.

applicants

references. IslandAir

references

thrown

the

review

Motion

719,

1999)

IslandAir. charge

Ernst,

pilots

1991

consider

committee

086,

20.

21.

721—722;

on 22.

Cabrinha

to

of

resumes out.

for

Mccarty and

because

a

August

file

Throughout 092,

Some

resumes

employees

In new

Summary

mailed who were

conducted

The

him

Cabrinha

Resumes

From

September

his

142)

established

time only

procedure Exs.

or

and

22, committee

submitted

he

because

put

complaint

hire

updated

some it

Judgment

felt

Linschoten

28,

after

1991. hired

which

or

in

an

became received

this

from

time T, 1991

he

that

other

internal

a

to

created

July

resumes

resumes

from

EE,

were

a was

separate

(Tr.

period

against the

as

Lawrence

aware

after

screen

formal

a

about

Ex. —

monocular.

pilots

far to

person 1991

mailed

this

other

at

13

investigation

a

1994

to

77

of

July

in exceeded —

55—56,

policy

IslandAir.

“priority

the file, and

(June

IslandAir’s

p. IslandAir,

“priority

Cabrinha

Complainant’s

file.

known

who

person

in,

claims

1991

015,

charge.

hire

(Tr.

which or

was

of

280;

1990

the

by

Ex.

(Tr.

through

did

not

filed

pool”

and pilots

at

became

monocular

of

pool”

The

but Ex.

the

number

A hiring

was

In

not 54; -

at

hiring

it.

to

listed

discrimination on complaint

late IslandAir

consisting

8,

712-713, July

committee

August

periodically

contain Exs.

Respondent’s

because president

and

February

He

Ex.

of

committee

could

monocular September

spoke

did

current

15,

1991),

vacant

77

1994,

such

716-

was

did

25) the

not

p.

not

of

as

5,

of

to see as well as a binocular person. However, Cabrinha did not conduct any tests or obtain any documentation to verify this. Cabrinha notified McCarty and Linschoten about this policy.

IslandAir has maintained this policy to the present. (Tr. at 459— 473, 485, 495; Ex. 40) 23. From June 1990 until it closed in February 1993, Complainant flew as a first officer with Hawaii Pacific Air. From August 1993 to June 1994 Complainant was hired by Empire/Mahalo Air -es and was trained and certified to fly as a first officer on its F-27 passenger 5plane& In June 1994 Mahalo Air Lines took over that company and. decided to fly ATR-42 passenger planes. Mahalo offered to upgrade Complainant to a captain position if he successfully completed training on the ATR-42. (Tr. at 59-63, 67- 74, 81—82, 266—297; Exs. 66, 69, C) 24. In September 1994, Mahalo sent Complainant to Flight Safety Inc. to train as ATR-42 captain. The training consisted of three parts: ground school, simulator training, and a flight test.

The flight test consisted of two parts: approximately 85% covered emergency procedures, was conducted in a simulator and was known as a “SIM check”. Approximately 15% of the flight test was conducted in the actual aircraft and was known as a “flight check”. Flight checks had to be taken within 30 days of a SIM check. Complainant completed the ground school and simulator training. However, he failed the SI1 check twice and was scheduled to retake certain

This pLane is aLso target, more complicated and carries more passengers than the oHc—6. (Tr. at 73; Ex. 69)

— 14 — portions allow Complainant training SIC derogatory Safety the reconstructed. contained then to completing terminated Complainant the fail Exs. pilots); mail following period 15, references. 1994 have flight 1992 flight school hired B, 25. the (2 Complainant updated instructors (post C, pilots) records August of Complainant PlC (4 classes After lower test. comments an Complainant. D, the a passed check. that of pilots) attorney, July position flight IslandAir E, resumes training, The 8, and losing ratings and F, Complainant, July to test of 1992 the 1991 had in school ; G, November retake claimed pilots: Upon test March complete his to AA, as in SIM 1991, who his did been (3 - (Tr. than Respondent first Complainant training November complied, pilots); August and failing BB, the check arranged not 28, he records November 18, biased at however, the — IslandAir CC, PlC instead did the hire officer 1992 83—102, 15 1994 for 1994), original FF, SIM records. not — the May 1994. ATR-42 him but with against the (2 and IslandAir, 22, (6 feared check. GG, have felt took 4, SIC 312—332, and pilots); because the pilots). Complainant SIC Mahalo subsequently 1991 demanded 1994 HH, Mahalo PlC records. them. that asked reconstructed flight the Complainant him position, that Instead, II, (8 (4 training. it and one but 523—524, SIC and pilots) pilots); him May decided He JJ, Throughout he only to check, Flight of did flight then continued had might to Complainant 23, KK, the but it hired have hired stole ; take not 529—530; offered written accused records January LL, 1992 July not Flight Mahalo Safety failed After again test. them this list from the his !“tM) the to 1, to (3

required upgrade

incapacitated, stable

accepted Rich

a

July

had

September

class,

his

29) alleging

p.

references.

1994

and

again

informed

Summary

EE;

its

flight

015;

disability

a

“priority

Ex.77

International

1995

28.

only

claims

27.

26.

difficult

spoke

company,

but

on to

Judgment

Ex.

this

that

Complainant

A

engineer

Complainant

After

14,

on

on

p.

hired

the

a

certain

flight

the

filed

to

A

October

first

August

(Tr.

position

015—013,

1995

pool”.

Respondent

and

to

company

flight

Linschoten,

his

time

Complainant

as

pilots

engineer,

Respondent’s

on

at

Airways

larger

had

to

officer

termination

on

to

9,

12,

securing

February

78,

(Tr.

engineer

that

was

September

because

retaliated

022-026;

filed

1994

an

1994

1994

airplanes.

333—335,

who

IslandAir

hired

at

or

and

IslandAir

L—lOll

position.

who

wanted

claims

74,

normally Complainant

—

second

for

Complainant

pilot

5,

walked

Rich

was

16

Motion

by

from

was

1,

77—78;

Ex.

1999)

bankruptcy against

—

Alpha

339-340;

trained

passenger

1996,

International

officer,

filed

to

failed

positions. then

does

Mahalo

Unless

had

A

in

for

fly

In

to

Exs.

Air

not

Complainant

few

chief

telephoned

on

him.

filed

their

September

and

Respondent’s

to

Summary

jets,

the

Air

Exs.

is

pilot

for

25,

February

and

plane.

open

hire

a

certified

Lines,

pilot.

PLC

a

(Tr.

From

third

26,

its

28,

shut

resumes

the

appeared

and

second

pilot

him

Judgment

or

ground

28,

plane.

T,

at

IslandAir

1996

was

June

he

reserve

5,

down.

Complainant

Complainant

SIC

because

78—79;

EE,

Motion

Linschoten

46,

to

complaint

positions

hoped

1999)

hired

the

and

to

1995

becomes

school

fly

Ex.

48,

as

pilot

be

From

FAA

Ex.

had

and

for

to

as

by

to

of

to

77

T, a Complainant shut

November worked flight engineer

21,

Complainant Complainant depend

esteem also or

Complainant’s

strains

1996 do

upgrade small flight

with captain,

“left” accomplished

not

major

103—110;

29.

saw

down

and

30.

a

regional

engineer

a

and

have

on

seat);

instructor

national on

variety on

from

many

divorced

1998

one

Life

The

Rich

his

his

airlines,

created

an

periodically did

military

and

196;

may

in

of

career pilot

first

and

marriage. Complainant

L-loll.

ex-wife’s

airline

as

on

International.

not

5—8

of

his

his

or

then

in

after

(to Ex.

a

a

an

odd

major

jobs

years.

have

officer

L-lOll path

old

financial March

backgrounds

and

family.

build

55) be

itinerant

In

jobs

(to

building

colleagues

He

salary.

on

worked

qualified for a

airline.

became

between

worked

1998.

obtain

passenger and

steady

the

up to

(Tr.

to

national —

strain

help

his

flight

Because

17

captain mainland

From

for typically

up (Tr.

at

pilot

for frustrated

these

and This —

income

ex-wife

advance to

another

132—135;

support

Such

Orient

on

plane. at

April

or

Air time)

build

apply

hurt

has

he

flying

his

200—206,

(moving

major

and

progression

and

progresses

Atlantic

separated

to

;

worked

1,000

his

up family. Thai

1997

for

been

Complainant’s

abroad

first

that From

Ex.

jobs his

airline

jobs,

turbo

family.

a

from

520—522)

flight

50)

Airlines to

stressful

pilot

March family

periodically,

with

officer

he

as

also

in

Complainant

Complainant

April

prop

as

is

“right”

pilots

was September

a

national

follows:

hours

position

normally

1998

created (Tr.

had

flight

time);

self-

as

for

1998

not.

for

who

to

at

to

to

as

a

a

the

as

degree,

167,

minorities.

In

airline hire

pilot

and

of

rating 17 ; airline

test was

714,

college

position

positions

qualified

positions

to and

captains

addition,

FAA

turbine

77%

207)

positions

July

hired

17

33.

scores,

720—721;

32.

pilots

31.

applicants

that

are

is

military

degree

is:

has

with

1991,

on

Airlines

The

The

than

Of

with

very

the

with

in

time;

under

aircraft

(Tr.

is

who

if

3,000

the

pilot

July

likelihood

30-40

a

ideal

with

Exs.

4

Complainant,

slight.

and

national

presently

major

Complainant

major

at

training

may

are

for

and

the

22

have

can

over 1991,

—

had

162,

39,

require

national pilots

candidate

years

still

age

major

has

6,000

operate

airlines.

airline.

military

12,500

comparable

Complainant

46,

airlines

165—169,

of

a

is

of

employed

or

pilots

flying

old;

hired

airlines

hours

four

39.

Ex.

Kamemoto

the

a

pounds. Complainant

a

— had

airlines,

particular

for

type

18

80

to

year

has

The

Christopher

training,

same

been

by

total

with

174; Of

—

and

obtain by

flight

a

p.

does

A

rating.

major

have

IslandAir

an

pilot

and

the

college a

type

78—79)

age

Willener

hired

IslandAir,

national

aircraft

flight

Exs.

ATP

not and

‘

Vincent

type being

4

rating

experience 3

airlines

as

position

or

year

pilots

have

by

50,

Gardett,

license

ratings”

He

4

degree.

Complainant,

between

time;

who

as

is

IslandAir

hired

has

have

airline.

is

college

53)

a

have

a

11

a

4

also

captain.

certification

a

who

are

advanced

have

with

in

year

1,000+

and

with

white

advanced

by

a

advanced

August

92%

order

were

prefer

pilot

women

degrees;

response

a

advanced

in

college

a

(Tr.

a

of

(Tr.

has

male.

major

to

hours

major

1991

type

to

less

1990

the

fly who

or

to

by

at

at

no

to

to a time Because

airlines who

for (at

previously

certification 142) Complainant

captain

1990 national

Exs.

III.

hearing,

untimely.

findings

the

are

14

he

34.

2,

A.

or During

years.

age

able

qualified

in

of

the 18,

July

is airline

Respondent

Although

CONCLUSIONS JURISDICTION

1.

To Pursuant

fact,

5

of Specifically,

60

had

46,

the and

to

years

mandatory

the

for 1991,

38),

Most

years

Timeliness

fly

they

been 66,

investigation

extent in

subsequently

to

to

all

and

he for

Complainant

another

major

shall

67)

he

FAA

old, IslandAir

hired

apply

OF

would

other

advanced

that

such

retirement

most

regulations.

be

LAW’9

Respondent

airlines

of

Complainant

the

by deemed 3

for

a

be

pilot

years.

likely

the

short —

of

IslandAir

following

moved

approximately to

a

failed

passed

19

incorporated

Complaint this

position

a

will

positions

age —

period

first

would

argues

(Tr.

to

case

conclusions would

not

for his

dismiss in

training

at

officer

have

with

of

and

that

August hire

into

pilots

ATR—42

98,

he

only

46

time.

the

the

a

was

been

185—186,

the years

and

the

of

position

major

be

1990,

contested and

findings

law

flying

training,

complaint

offered.

train

(Tr. complaint

able

upgraded

old

also

airline.

obtained November

720—721;

at

by to

pilots

of

with

major

contain

140-

case

the

fact.

fly

was

he

If to

as

a

who

American

related

instance, 1981),

Atlantic

ongoing

refusal

was

Complainant

[continuing

(1st complaint

continuing

complaint

1991,

denied

filed

submitted

filed

dr.

A

a)

Complainant

No

hundred H.R.S.

(2)

(1)

constitutes

on

Taylor

a

refusal

acts

is

complaint

policy

Rockwell

and

August

pilot

1989)

in

whether

practice

discriminatory Of

questionnaire,

Upon

was

within

part

violation.

in

emanating

§

Roberts,

illegal

the

Pacific

eighty

v.

an

368—11(c)

filed

August

which

position

(continuing

to

or

22,

of

USAir,

application

last

180

Respondent

a

and

shall

Corp.,

occurred;

a

hire

practice

complaint

1991,

days

within

the

policy

Tea

the

series

days

occurrence

and/or

from

the

Inc.,

Alternatively,

be

states

in

alleged

may

practice.

Sixth

after

which

Co.,

650

more

same

violations

of

August

filed

180

Executive

of

November

committed

or

of —

in

be

61

F.2d

pursuant

Respondent’s

or

Inc.,

than

Circuit

20

the

that:

discriminatory

discriminatory

Complainant

days

December

unlawful

discrimination.

EPD

practice]);

in

a after

—

and/or

823,

date:

continuing

a

180

42,105

871

of

pattern

may

1990.

a

concluded

to

Director

the

they days

the

26

continuing

F.2d

discriminatory

1972 November

be

H.A.R.

expiration

first

filed

EPD

(W.D.

serial

after

last

argue

of

animnus)

and

179,

acts

violation

Roberts

31,885

ongoing

that

§

argue

Pa.

refusal

on

occurrence

was

1990.

Complainant

Mack

12-46-6(b)

[succession

that

49

or

violation

February

1991).

a

or

of

repeatedly

part

EPD

plaintiff

(6th

v.

v.

that

systemic

the

one

if

to

38,882

North

Great of

Cir.

such

hire

of

pre

For

and

the

11,

was

of

an a told, from December 1972 through August 1973, that she would not be hired because she was a woman, was subjected to an ongoing policy

of discrimination. 26 EPD 31,885 at 20,956—20,959. The court stated: First, by definition, if there is a continuing violation, the company is continually violating Title VII so long as its discriminatory policy remains in effect. An applicant for employment . . . will, in many circumstances, be interested in any suitable position which opens up. As job openings become available, the applicant will automatically be rejected because of his/her race, sex or national origin. . . . We do not think that Title VII requires that suit be filed when the applicant is initially discriminated against. If an ongoing discriminatory policy is in effect, the violation of Title VII is ongoing as well. Id. at 20,958. The court found that plaintiff made a number of oral inquiries about her application (which showed that she was continually applying for a position at the plant), and was continually rejected because of her sex. In Taylor, the district court of Pennsylvania held that USAir’s ongoing practice of refusing to hire a Black pilot applicant amounted to a continuing violation where the pilot’s application remained on file with USAir from 1978 through 1988, was regularly updated by the him, and USA1r never called him for an interview, though it interviewed and hired less qualified white applicants. 64 EPD 42,105 at 74,418, 74,425. Like Roberts and Taylor, the evidence in the present case shows that the August 22, 1991 complaint was filed within 180 days after the last occurrence of an ongoing discriminatory practice. Complainant credibly testified, and the record shows, that he continuously mailed his updated resume at least once every three months (and sometimes more often) to Respondent from June 1990

— 21 —

monocular.

IslandAir

Zimmerman

092)

day

informed away

management;

monocular

Zimmerman

discussion,

January

record

46,

Complainant

Complainant

rescinded

Complainant July

were

committee) August

p.

(Complainant’s

through

016—018,

operations

48)

in

The

In

retained.

1991

shows

November

1990

addition,

Rogers

1991,

June

weight

was

pilots.

the

would

in

Complainant

Complainant’s

Zimmerman

Ernst

through

because

022—026,

credibly

Respondent

disclosed

Ernst

that

1994.

in

offer

March

after

of ex—wife)

of

(Ex.

1990

of

charge.

not

informed

IslandAir.

this

Complainant

Vincent

Complainant

the

(Tr.

reiterated

May

to

he

80

and

hearing

040,

1991,

testified

testified

hire

conversation

testified attend

his

p.

was

testified

evidence

1991

at

IslandAir

Zimmerman

resumes

The

090)

was

him

44-45,

54,

monocular.

monocular

and him

—

(prior

that

record

credibly

the

hired

that

(Tr.

22

then

that

74,

that

Ernst

that

also

that

were

that

61)

[Complainant] that

—

August

thereafter

Vincent

Williamson

at

77-78;

some

repeatedly

to

asked

he

on

shows

he

testified

IslandAir accepted

shows

Ernst

633-634)

vision.

Zimmerman

the

testified

during

was

4ovember

Complainant

time

spoke

1990

to

Exs.

that

formation

had

the

called

that

took

in

speak

had

ground

this as

to

vice

(Tr.

Williamson

15,

been

that

refused

1991.

because

Complainant

26,

that

would

at

confirmed

applications

passed

over

Ernst

Complainant

to

25,

and

president

January

least

o

1990. from

at

hired.

school

he

someone

the

(Ex.

the 26,

not

Tana

spoke 37,

again

away

to

he

at

through

passed

day

hiring

77

Ex.

after

(Exs.

that

also

least

hire

1991

519)

was Pied

hire

and

The

and

in to

p.

and

to

in

in 77 charge Complainant’s did because 092, 131, and times Flight scores them Ernst general 1) Complainant’s serious (Tr. be hiring consistent certain at (see, credible. times his Linschoten not until IslandAir 142) 136) discussion at and practices on of were Safety accounts sequence Complainant dates transgressions, forward Complainant the Dickey 633—634) his the Finally, with clearly This log, Inc. theft day and day argues were resumes of other during and above made Complainant’s specific to of and is training his was the refuted and inconsistent; content became the day that because favorable The and undisputed were interactions the evidence monocular. I and concealment hearing; operations in find Complainant period events, conversations reported records confused, of by Airman section — those his 23 those that resume comments shows between factual and — interactions this 2) portions with and of (Tr. of his Certificate to III.B.2., persons; embellished lacks 4) that •his to his IslandAir Rogers. lied is Ernst, testimony about June at events he were the understandable, training testimony after credibility of 56, about inflated 1990 infra.) his his Dickey, with hiring 3) 663; also and (Ex. forms. May in and and regarding and response testimony he IslandAir March records IslandAir’s 77 that guessed 1991 his July Ex. noted stole committee concealed Zimmerman because: Although p. flight 77 While Ernst King, given 1991. 1991. test 014, the his are are p.. to in at

higher

whether

case on

616,

forms

continuing

that

December

complaints the

Complainant’s

discriminatory

had

shows

encompassed

and

occurred

because:

investigate monocular

Executive

violation

and

they

Ernst,

complainant’s

hearing,

621)

record

a

20

events.

Complainant

These

the

and

Respondent

occurred

applicants

that formal

(iii)

Dickey,

4,

lower

Finally,

While

Enforcement

in

pilots

Director

harm

because:

to

he

arguments

shows

Ci)

1992

prior

the

any

August

confirmed

policy

than

applications

include

response

IslandAir

it

estimated

Zimmerman

from

passed

almost

the

August

practice

events

an

the

IslandAir

until

is

that

his

to

HCRC

clear

abandoned

record

the

complaints

of

or

actual.

lack

the

September

that

a)

test

Section

allegations

the

September

and

which

and/or

10

not

date

investigator

that

November

test

received

and

it

Complainants

shows

merit.

scores,

also

of

rounded

years

because

HCRC

times.

hiring

had

King

Complainant Linschoten

and

—

occurred

all

November

considered

refusing

that

24

argues

1991,

do

would

Enforcement

and

1991;

no

Dickey

(Tr.

ago. 2 °

off

claims

—

Regardless 1990;

no

of

he

monocular

when

not

Ernst

formal

his

at

scores

so

informed

was

a

notice

IslandAir

in

and

that

could

Writing

1990

continuing

214—228)

notify

also

mention

flight

sent

would

based

to

Other

monocular.

August

the

(ii)

were

b)

there

policy

have.

events.

Section

could

pilots,

of

that

hire

in

them.

not

hours,

IslandAir’s

resumes

complaint

Complainant

‘good

on

the

witnesses

his

whether

had or

any

and

is

not

Di.ckey

the

violation.

the

At

against

November

scores”.

and

which

first

did

HCRC

did

or

no

a

events

the

In

the

recall

1990

continuing

complaints

filling

not

continuing

addition,

determined

IslandAir

view

to

were

contested consider

evidence

resume.

counsel

did

such

comment

and

(Tr.

events

hiring

be

which

1990;

dates

both

the

out

not

the

at

By

a as

over

through

discriminatory

to

180 Complainant

continuing

Dismiss,

of Respondent’s

has

allege

makes

occurred position.

Finding

alleges

federal

(Ex.

explicitly

charge,

days

raised

Notwithstanding H.A.R.

accuracy an complaint

b)

this

identify

I

77

reference

a

individual

July

therefore

p.

court

of

of

“continuing

that

Tr.

in

whether

was

complaint.

violations

101)

and

July

§

Reasonable

August

filed

(Ex.

Motion

because

1991.

at

the

a

12—46—6(b)

state

the

is

case

practice

Complainant

timely

litigated

to

552—575)

1991.

The

deemed-

action

78

the

a

conclude

on

1990

parties

The

events

for

written

contain

such

harm”.

p.

second

the

of

pre-complaint

claim

February

complaint

Cause

August Summary

The

which

filed

or

056—057)

states:

claim

(Exs.

his

provisions

the

which

IslandAir

practices

statement

and

applied

Commission

and

allegations

complaint,

that (Exs.

—

filed

if

continued

monocular

22,

issue

42,

in

Judgment

25

5,

was

describing

the

occurred the

-

1991 Respondnt’s

87,

35,

The

1999;

questionnaire

not

on

commission

several

in

alleged

therefore

sufficiently

of

complaints.

00,

36)

therefore

complaint

filed

November

pleadings

on

from

prejudiced

these

relating

vision

subsection

Respondent’s

in

PP)

the

Furthermore,

with

at

August

to

on

times

proceedings.

issue

receives

had and

be

least

refusal October

has

was 19

was

reasonable

to

precise

in

unlawful.

by

the

notice

1990

of

and

for

jurisdiction

events

filed

(a)

the

August

any

an

timeliness

notices

Motion

from

IslandAir

,

12,

21,

to

and

a

to

ongoing

failure

related

a

within

of

which

pilot

1994,

hire

1990

See,

1997

also

the

to of Complainant and the Executive Director alternatively argue that Complainant’s PCQ, which was filed on February 11, 1991 satisfies the requirements of H.A.R. § 12-46-6(b) and constitutes a complaint filed within 180 days after Complainant was denied a job in August and/or November 1990. Federal courts have held that the filing of an EEOC intake questionnaire may constitute the filing of an EEOC charge where there is evidence that a complainant intended to activate the investigative process, or where the EEOC treated the questionnaire as a charge. Philbin v. General Electric Caoital Auto Lease, Inc., 929 F.2d 321, 56 EPD 40,674 at 66,515—66517 (7th Cir. 1991) (intake questionnaire may constitute a charge where information contained therein was sufficient, plaintiff intended to activate the investigative process with the filing of the questionnaire and EEOC treated questionnaire as charge) ; Casavantes v. California State University, Sacramento, 732 F.2d 1441, 34 EPD 34,384 (9th Cir. 1984) (plaintiff’s intake questionnaire, filled out 248 days after his notice of termination, was a timely filed charge when EEOC sent formal charge document more than 300 days after plaintiff’s notice of termination and EEOC treated questionnaire as a filed charge) In the present case, Complainant’s PCQ contains sufficient information to meet the requirements of H.A.R. § 12—46—6(b) However, the weight of the evidence shows that Complainant did not intend to activate the HCRC investigative process when he filed the PCQ, and the Enforcement Section did not treat the PCQ as a complaint. Instead, the evidence shows that Complainant

— 26 —

Respondent

employees.

to

that

Enforcement

investigative

specifically Complainant’s

in or

Rogers

titled

complaint

Furthermore,

complainant

Complainant

local the Rogers

deliberately

H.A.R.

June

“taken”

matter

United

having

political H.R.S.

the

2.

Because

airlines

“For

testified

and

if

PCQ

Respondent

§

was

I

IslandAir

himself.

HCRC

one

States.

Office

Section

§

any

in

I

because

does

noted

12—46—5

don’t

agonized

the

delayed

378—1

to

PCQ

process

therefore

Complainant

subdivisions

that

or

and

person,

be

investigator

that

not

first

contains

Use

that

more

hear

did

defines

filed,

he

he

IslandAir

and

section.

the

constitute

(Tr.

Complainant

is

Only”

with

over

not

the

would

employees,

page

feared

from

conclude

including

12—46—6(b).

filing

a

they

the

at

view

case

did

“employer”

with

the

corporation

and

Cp”.

of

— whether

772-773)

Charles

be

notation

that

27

would

his

was

(Tr.

a

Complainant’s

of

filing

a

any

not

blacklisted.

that

wanted timely

—

(Ex.

but

section

the

his

PCQ

a

word

at

agent

fill

“Pending

Nation

he

shall

to

intend

77

Respondent

State

complaint

“pending”.

as

of

754-755,

to

which

Tana

filed

would

mean

p.

should

a

in

labeled

his

keep

of

complaint,

not

131).

the

testified

or

Pied

Complaint

PCQ

complaint

to

such

has

get

PCQ

trying

(Tr.

include

any

words

until

786)

is

file

“ACTION

(Ex.

contains

testified

activate

out

and

one

person,

of

an

at

I

“accepted”

5)

July

to

that

among

will

a

the

employer

the

pursuant

its

conclude

or

However,

535-540)

TAKEN”.

resolve

Rogers

formal

a

1991.

more

HCRC

call

if

that

the

box

the a vs. unequally plans. disabilities. U.S.C. disability. practice under Department States the Programs Section adopted required to conduct Chapter required against affirmative See, implementation in implementing funds looked (December (H.A.R. employment interpret purposes Lex Department 21 H.R.S. In B. or to H.R.S. disabled 501 § Section to K. to which to (OFCCP) which on the 378. subchapter 701 for take Larson, of 20, The DISABILITY case issue of action adopt August treat this of by Labor case The of any § et. the are the Rehabilitation § affirmative occurred 1994) § 503 enforces the individuals S section 378—2(1) law EEOC 378—1 implementing 504 Employment affirmative of employer managed seq.) 2 ’ Act 504 plans disability of of an (DOL) 18, federal are under Parks is this is the Tseu 9, requires DISCRIMINATION individual and 1994, charged instructive. this for prior the through more (A) by and Act action § Commission executive by Discrimination to on both Act Department is and the certain section. action regulations similar requires programs would Title 12-46—181 makes refuse provisions federal to with behalf subject of — its employment in Recreation, the that 28 1973 plans. review the branch Office federal VII not to it Rehabilitation — Section because to departments parties of or held of date. addresses employment H.R.S. consistent 2nd to be Justice hire, (42 activities an of through the and of of of The agencies. applied Ed. that the such U.S.C. unlawful 504 contracting H.R.S. Federal targeted qualified Instead, complaint Docket coordinating §5 discharge of 378-2, disability (DOJ), agency provisions prohibits and its 160—164 with of —196), which that to § agencies Contract the Chapter disability Recipients I Act private and affirmative 2000e those No. discriminatory discriminatory individuals the find with (1998). receive disabled. filed individual’s discrimination each discrimination or of body which Commission 94—002-E-D of regulations of otherwise et. the to Compliance employers. 1973 378. agency the for are by develop H.R.S. Because federal United action seq.) rules were with DOJ. Aho (29 The the not is 1. Direct Evidence of Disability Discrimination Discrimination under H.R.S. Chapter 378 may be established by direct evidence of discriminatory intent. IxiRe Smith I MTL, Inc. et. al., Docket No. 92—003—PA--R—s (November 9, 1993) (bus driver’s use of the terms “nigger” “Black thing” and “mama” were direct evidence of driver’s intent to discriminate against Black female passenger); EEOC v. Alton Packaging Coro., 901 F.2d 920, 53 EPD 39,932 at 62,558 (11th Cir. 1990) (manager’s statement that if it were his company “he wouldn’t hire any black people” was direct evidence of discrimination in failure to promote Black plaintiff). In disability discrimination cases, the Executive Director and/or complainant are required to show: a) that Complainant is a qualified person with a disability; and b) direct evidence of discriminatory intent. Once the Executive Director/complainant presents the above, the burden of proof shifts to the respondent to either: a) rebut such evidence by proving that it is not true; b) establish an affirmative defense; or c) limit, but not avoid, liability by showing mixed motives for the adverse action (i.e., proving by a preponderance of the evidence that it would have acted as it did without regard to the complainant’s protected status) . See, Smith, supra; Vaughn v. Edel, 918 F.2d 517, 55 EPD 40,455 at 65,237 (5th Cir. 1990); EEOC v. Alton Packaging Co.

— 29 — a) whether Complainant has a disability

H.R.S. § 378—1 defines disability to mean the state of having a physical or mental impairment which substantially limits one or more major life activities, having a record of such an im?airment, or being regarded a having such an impairment. Department of Justice2 (DOJ) regulations implementing § 504 define “physical or mental impairment” to mean (i) Any physiological disorder or condition, cosmetic disfigurement or anatomical loss affection one or more the following body systems: Neurological; musculoskeletal; special sense organs; (iii) The term physical or mental impairment includes but is not limited to such diseases and conditions as orthopedic, visual, speech and hearing impairments

28 CFP. 41.31(b) (1) (i) (1978) DOJ regulations also define “major life activities” to mean • . . functions such as caring for one’s self, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning and working.

28 CFR § 41.31(b) (2) (1978) The DOJ regulations do not define the term “substantially 23limits”. I therefore will interpret these terms according to

22 The Rehabilitation Act similarly defines “individual with a disability to mean “. . . any individual who (i) has a physical or mental impairment which substantially limits one or more of such person’s major life activities, (ii) has a record of such an impairment, or (iii) is regarded as having such an impairment . • .“ 29 U.S.C. 7068. 23 Although Department of Labor regulations implementing § 504 contain a definition of these terms, they are defined only in the contexts of being a beneficiary or working. 29 CFR S 32.3 (1980) states in relevant part: Substantially limits means the degree that the impairment affects an individual becoming a beneficiary of a program or activity receiving Federal financial assistance or affects an individual’s employability. A handicapped individual who is likely to experience difficulty in securing or retaining benefits or in securing, or retaining, or advancing in employment would be considered

— 30 — their ordinary meanings. Webster’s Ninth New Collegiate Dictionary (1991) defines “substantial” to mean: Consisting of or relating to substance; important, essential. it defines “limit” to mean: to curtail or reduce in quantity or extent. Therefore, in order to be “substantially limiting”, a physical or mental impairment must curtail or reduce the quantity or extent to which a person performs a major life activity in an important or essential way. Given the above, i conclude that Complainant Pied was and is a qualified person with a disability. Complainant testified that he lost sight in his left eye when he was eighteen years old. This is an anatomical loss a of special sense organ and constitutes a physical impairment. The evidence also shows that such impairment curtails Complainant’s major life activity of seeing in an important or essential way. Complainant testified that he has to cock his head to the left to center his Vision, he lacks 15% peripheral vision on both sides, and does not have stereopsis, or three—dimensional vision. He cannot perceive the depth of objects that are very close to him and perceives depth of other objects without stereopsis •24

substantially limited. The DOL regulations of therefore do not define “substantially limits” in the other major life activities such as seeing. In context IslandAir analyze impairments addition, the cases cited by to only in the context of working, and not in other major life activities. Cecil v. Gibson, regards 1991); E.E. Black V. 820 S.W.2d 361 (Tn. App. Marshall, 497 F.Supp 1088 (D. Haw. 1980). 24 Recently several federal courts have vision see in a held that persons with monocular manner which substantially different from binocular are therefore disabled under the ADA. See, people and F.3d 1228 (9th Kirkingburg v. Albertsons, Inc., 143 Cir. 1998), cert. granted, 119 S.Ct 791 (1999) driver disabled under the ADA); Doane v. (monocular truck 1997) (monocular City of Omaha, 115 F.3d 624 (8th dr. police officer disabled for purposes ADA); Pacific Railroad, 6 of EEOC v. Union F.Supp.2d 1135 (D. Idaho. 1998) (monocular driver disabled

— 31 — b) whether IslandAir regarded Complainant as disabled Alternatively, Complainant and the Executive Director argue that Respondent IslandAir regarded Complainant as being disabled. DOJ regulations define the phrase “is regarded as having an impairment” to mean (i) Has a physical or mental impairment that does not substantially limit major life activities but is treated by a recipient as constituting such a limitation; (ii) Has a physical or mental impairment that substantially limits major life activities only as a result of the attitudes of others toward such impairment; or (iii) Has none of the impairments defined in paragraph (b) (1) of this section but is treated by a recipient as having such an impairment.

28 CFR § 41.31(b) (4). The weight of the evidence also shows that IslaridAir regarded Complainant as being substantially limited in the major life activity of seeing. Ernst was surprised that a person with monocular vision could even fly an airplane. (Tr. at 655—656, 719— 720) He believed that a monocular person had a more limited “field

under the ADA); Coleman v. Souther Pacific Transoortatjon Co., 997 F.Supp 1197 (D. Ariz. 1998) (train switchman applicant with monocular vision disabled under the ADA). Furthermore, as pointed out in the Executive Directors post-hearing brief, the “handicapped” or “disabled” status of monocular plaintiffs in Rehabilitation Act and other state civil rights commission cases has not been questioned. See, Holly v. City of Naperville, 603 F.Supp. 220 (N.D. Ill. 1985); Wright v. Columbia University, 520 F.Supp. 789 (E.D. Pa. 1981); Kampmeier v. Nyuist, 553 F.2d 296 (2nd Cir. 1977); In the Matter of Maliszewskj and Illinois Dept. of Transportation, 1996 WL 534392 (Illinois Human Rights Commission July 29, In 1996); the Matter of Chevalier and the Toledo Edison Co., 1990 WL 656355 (Ohio Civil Rights Commission, February 28, 1990); In the Matter of the Accusation of the Dept. of Employment Fair and Housing v. City of Merced Police Dept., 1988 WL 242649 (California Fair Employment and Housing Commission, December 15, 1988); Jones v. Bohn Aluminum & Brass Co., Case No. 43740-E7 (Michigan Civil Rights Commission, December 16, 1980); Reimers v. New York City Dept. of Personnel, 1977 WL 52808 (New York Commission on Human Rights, December 13, 1977).

— 32 —

discriminatory

Complainant

hire

statements

pursue

vision,

Ernst

allow

evidence

planes.

IslandAir’s

flown He

vision

IslaridAir

Complainant

assist

air

of

incapacitated.

had

vjsjon”

traffic

d)

In

Complainant

c)

informed

monocular

them

as

pilots

waiver.

an

or

Ernst

August

(Tr.

shows

a AT?

direct

whether

utilized.

relieve

than

to

August

that

first

at

to

became

told

with

license

at

hire

Complainant

intent.

night

a

(Ex.

that

(Ex.

evidence

pilots.

60—61,

Complainant

was

IslandAir

binocular

1990,

Complainant

Complainant

31,

officer

such

a

monocular

certified

72)

46,

qualified

pilot

or

after

In and

1990

“condition

72—74;

in

Ernst addition,

When

Ex.

a

of

that

on

ground person

was

first

bad

in

Complainant

In

discriminatory so

—

pilots

he

that

was

in

larger

constitute

Williamson

command

33

for

weather,

continuing

Exs.

p.

invited

March

was

class

and

school and qualified

—

at

IslandAir’s

he

29—31,

the

and

employed

18,

this

would

and

has

flew

medical

should

1991

IslandAir

that

disclosed

class.

and

66,

Complainant

made

time”. more

63—64)

been

such

direct

have

the

intent

would

67,

with

IslandAir

Zimmerman

the insurance

the

certificate

complex

certified

practice. exact

The

difficulty

69)

pilot

In

decision

Samoa

captain

not

his

evidence

weight

January

to

same

be

would

monocular

passenger

would Aviation,

position.

informed

and

able

attend

not

of

with

become

seeing

These

plane

1991

not

not

the

has

of

to

to a e) Respondent’s defenses IslandAjr denies that Ernst and Zimmerman made such statements and argues that Complainant is not credible. However, for the reasons discussed in Section III.A.1.a. above, I find that Complainant and Tana Pied’s testimonies regarding these statements credible. IslandAir did not present any affirmative defenses or mixed motives for its 25actions. Thus, I conclude that there is direct evidence of IslandAjr’s intent to discriminate based on Complainant’s disability.

2. Circumstantial Evidence of Disability Discrimination Discrimination under Chapter 378 may alternatively be established by circumstantial evidence. In the present case, if the Commission concludes that there is no direct evidence of discriminatory intent, the Complainant and Executive Director must establish a prima facie case of disability discrimination by proving that:

a) Complainant is a qualified individual with a disability; b) Complainant applied for a job with Respondent; c) Respondent used medical criteria which screened out or otherwise denied employment to Complainant based on his disability.

Aho, supra; Prewitt v. United States Postal Service, 662 F.2d 292, 27 EPD 32,251 at 22,822 (5th Cir. 1981); y v. Bolger, 540 F.Supp.

25 IslandAir does not claim that complainant the health or poses a direct threat to safety of himself or others and did not present evidence showing that binocular vision is a boria fide occupational 473—474; Ex. 45) qalification (BFOQ). (Tr. at

— 34 — 910, 33 EPD 33,967 at 31,576 (E.D. Pa. 1982). The burden then shifts to Respondent IslandAjr to prove: a) that it had a non-discriminatory reason for not hiring Complainant; or b) some other affirmative defense. H.R.S. § 378- 3; Aho, supra; Tseu on behalf of the CqmPlaint filed by Cole vs. Treehouse Restaurant, Docket No. —002—E-A-D—RET (May 2, 1996); Prewitt, supra; 95 8ev, supra.

a) prima facie case Complainant and the Executive Director met their burden of establishing a prima facie case of disability discrimination. As discussed above, Complainant was and is a qualified person with a disability. The record also shows that from June 1990 through July 1991 Complainant continuously sent in his resumes and applied for pilot positions with IslandAir and that, at least through May 1991, IslandAir retained his resumes. (See discussion in section III.A.1.a, suPra.) The weight of the evidence also shows that Ernst offered Complainant a position in the August 1990 class. Complainant timely applied for that class in June 1990, and successfully passed the interview and pilot response test by June 26, 1990. (Exs. 37, 73; see also discussion in section III.B.2.b., below.) Ernst sent Complainant an application form and asked for copies of Complainant’s licenses on or about August 25, 1990. (Ex. 1A) Ernst testified that this was usually done at the end of the hiring process and the record shows that many new hirees completed and submitted this application at the time they started ground school. (Tr. at 667—668; Ex. 39, Ex. 80 p. 17—18, 71—72) Tana

— 35 —

the

26, submitted response class. had

Complainant

Willener) monocular,

46, Complainant disclosed

to Complainant

IslandAir. that a

Pied

position.

attend

1990.

48)

August

Respondent

a

b)

IslandAir

Finally, testified

Complainant

However,

legitimate,

test

his

who

whether

his

reason

i.

ground

The

and

1990

during

continued

and

(Tr.

IslandAir

resume

were monocular

Complainant

record

on

argues

hired

1990

that

IslandAir

class

the

for

school.

Respondent

Tana

at

June

not

the was

—

Complainant

and

record non-discriminatory

not

as

517)

also that July

as

period

to

by

vision

26,

continued Pied

passed least

hiring

rejected

qualified

did

the

and

submit

(Tr.

shows

it

1991

shows

1990. had

—

had

not

from

three

testified

to

time

the

the

36

at

Complainant

stated

(first

that

a

Ernst,

that already meet resumes,

—

to

37,

initial

August

legitimate,

Executive

as

because

Complainant pilots

Thus,

all

hire

Complainant.

Complainant

519)

Deriod)

its

that

Ernst

reason

that

the

selected

1990

interview

Complainant

burden

(Kamemoto,

he

pilots

IslandAir

Thereafter,

he

Director

members

rescinded

through

non—discriminatory

after

was

applied

for

was

proving

took the

who

not

prior

(Exs.

of

not

Vincent

Complainant

offered

members

July

have

monocular.

must

the

the

were

hired

for

the

although

that

to

38,

hiring

pilot

1991.

offer

shown

July

June

have

that

and

39, not

him

of

it by 1990 class submitted their application 2forrns after June 26, 1990, as did all but one of the 27members of the August 1990 class. Therefore, IslaridAir did not select the August 1990 class at the time Complainant first applied in June 1090. In addition, Complainant’s application was timely for the November 1990 class. The record shows that the resumes of two members of the November 1990 class were received after Complainant’s. Correspondence from Darcy Vernier indicates that Vernier submitted his resume on or near October 12, 1990; Vincent’s resume contains a handwritten notation indicating that it was received on September 14, 1990. (Ex. 39) Ernst agreed that Complainant had timely applied for the November 1990 class. (Tr. at 687; Ex. 80 p. 44—45, 61) Ernst could not state a reason why Complainant was not interviewed or selected for this class. (Tr. at 686—687; Ex. 80 p. 47—48) Cabrinha, who as President of IslandAir later conducted an investigation of Complainant’s discrimination charge, testified that he could not determine why Complainant was not hired or interviewed for this class. (Tr. at 461—463)

IslandAir also contends that Complainant was not selected in the August and November 1990 classes because he did not interview favorably with Dickey. However, Dickey testified that he was the

26 Because IslandAir did not retain the resumes of most of the hired in 1990—1991, pilots it is difficult to determine exactly when these pilots submitted their resumes. However, it is undisputed that resumes were usually submitted prior to the completion of IslandAir applications forms.

27 John Ross submitted his appLication on Hay 14, 1990. (Ex. J9)

— 37 —

July

until

have

testified

the

the

known walked

1991

evidence

the

Complainant

selected

1991

application

also response

form

would

at take

unless

sole

Ernst

(Tr.

685-686)

resumes July

resumes

been

29,

class

Finally,

the

class,

at

unless

testified

person

July

by

confirmed

not

in

he

667-668)

the

response

shows

1991. 1991

test

pilots

selected

that

their

have

1991.

was

consisted

given

must

did

he

responsible

he

committee

form

class

on

IslandAir

that

(Exs.

he

It

that

and

interested

IslandAir

retained

that

not

from

resumes

June

have

test

(Tr.

to

It

around

on

and

is

Dickey

because

the

he

follow

46,

them

is

IslandAir

a

of

undisputed

26,

interviewed

August

unless

at

as

the

would

“priority

committee,

undisputed

argues

for

9

48)

and

mid-July

to

711-712)

references).

1990

by pay

discussed

pilots

committee

in

this

the

Mccarty.

scheduling

Ernst. named

—

it

not

Therefore,

25,

that

for

at

would

38

that

newly

was

procedure

that

the

pooi”

have

1991.

and

favorably

— an

at

1990.

that

The

IslandAir

applicant.

interested

Complainant

and

were

Ernst

not

formed

least

request

applicant

commenced

Complainant

sent

record

However,

(Tr.

pilot

(i.e.,

Ernst

Linschoten

the

approved

have

not

and

testified

(Ex.

initially

with

anyone

hiring

July

at

of

employees

shows

response

sent

sent

involved

applicants

instead

in

to

664)

the

ground

IslandAir.

was

(Tr.

1A)

Dickey.

hiring

1991

that

took

testified take

an

Complainant

committee

Complainant

that

weight

not

that

for

at

application

class

hired

Linschoten

Therefore,

applicant.

tests,

school

in

or

the

such

him.

the

hired

the

618—620)

he

who

hiring

pilots

of

pilot

Ernst

must

July

that

gave

July

from

only

test

(Tr.

the

had

and

on

an

in to the committee did not use any of the resumes on file with Ernst. (Tr. at 714, 716) However, if the committee did not use the resumes retained by Ernst, it would have had to recruit, interview, test, and select walk-in applicants with recommendations within a period of two weeks, which is highly unlikely. In fact, the record shows that two of the July 1991 class members, Christopher Gardett and Kathy O’Brien, submitted their applications (and thus, their resumes) prior to July 1991 (May 15, 1991 and June 7, 1990, respectively) . (Ex. 39) These applications do not list any references, and Linschoten could not recall any. (Tr. at 714; Ex. 39) Complainant also testified and informed Rogers that Linschoten stated he was not considered for the July 1991 class because Ernst didn’t forward his resume to the committee. (Tr. at 56; Ex. 77 p. 092) Finally, IslandAir’s October 21, 1991 response to the complaint makes no mention of a “priority pool” or that the hiring committee only selected from such pool. (Ex. 16) For these reasons, I conclude that Respondent’s reason for not hiring Complainant in the July 1991 class is not credible.

ii. post July 1991 — July 1994 (second period) The weight of the evidence shows that some time after July 1991 IslandAir’s pilot hiring committee adopted new hiring procedures and only selected applicants from its “priority pool”. During the August 9, 1994 telephone conversation between Linschoten and Complainant (which Complainant tape recorded) Linschoten mentioned these new procedures. (Exs. T, EE; Ex. A to Respondent’s Motion for Summary Judgment as to 1994 claims filed on February 5,

— 39 — 1999) Shortly afterwards, Complainant also reported this to Rogers. (Ex. 28, Ex. 77 p. 015) Therefore some time after July 1991, Respondent did not consider Complainnt’s application because Complainant was not in the “priority pool” (i.e., he did not walk in his resume or list IslandAir employees or pilots known to the committee as references)

C) other affirmative defenses As stated in Section III.B.1.e. above, IslandAjr did not present any other affirmative defenses. IslandAjr therefore failed to rebut the presumption of discrimination raised by Complainant’s and the Executive Director’s prima facje case, and I Conclude that there is circumstantial evidence of IslandAjr’s intent to discriminate based on Complainant’s disability.

C. AILITLITy Because Respondent IslandAjr refused to hire Complainant Pied as a pilot during the period August 1990 - July igi solely because of his disability, I conclude that it is liable for violating H.R.S. § 378—2.

D. REMEDIES

1. ent of Complainant Pied in a Pilot Pojtjo Complainant and the Executive Director seek placement of Complainant into a first officer pilot position. Because Complainant is a qualified person with a disability, I determine

— 40 — that Respondent should be ordered to place Complainant in the next IslandAir ground school class that includes first officer pilots. 2. Pa’ Back pay encompasses the amount Complainant would have earned if he had been hired by IslandAir. Respondent has the burden to prove any offsets to Complainant’s expected earnings. The evidence shows that Complainant would have been hired as a first officer with IslandAir on August 31, 1990. The evidence also shows that Complainant would have advanced to captain in 5 years, and to a first officer position with a national airline in another 3 years. Christopher Gardett, a pilot hired by IslandAir in July 1991, who is the same age as Complainant, has no college degree or military experience and has comparable flight experience and response test scores, is presently employed by Hawaiian Air Lines. (Tr. at 720, Ex. 48, Ex. 80 p. 79) I therefore determine that Respondent should be ordered to pay Complainant back pay in the amount he would have earned as a first officer for the period beginning August 31, 1990 through August 31, 1995; as a captain from August 31, 1995 through August 31, 1998; and first officer with a national airline from August 31, 1998 until his placement in an Islandair ground school class. This amount should include the value of any benefits Complainant would have received and should be reduced by the amounts Complainant earned and the value of any benefits he received from August 31, 1990 to his placement. This loss amount should be adjusted to account for any income taxes assessed. Complainant should also be

— 41 —

be

suffered.

$270,000

a national

that

IslandAir between

officer

Complainant

Mahalo

but

every

subsequently, Complainant damages

matter.

per

awarded

national

ordered

year

failed

Respondent

Complainant

4.

Because

3.

IslandAir

pilot

Air

prejudgment

with

when

what

until

($30,000/year

airline

Compensatory

until

Front

to

airline

Lines

his

made

attempted

position

pay

I

a

he

he

he

the

should

national

find

argues

Complainant

Pay

SIC

and

refused

Complainant

reasonable

accepted

would

in

and

or

date

interest

the

flight

that

June

he

until

to

be

for

Damages

what

that

of

Executive

have

airline

pass

was

to

ordered

and

Complainant

1994.

the

9

check,

he

obtains

efforts

accept

he

years)

compensatory

on

Complainant offered.

—

earned

both

successfully

Commission’s

reaches

42

this

earns

to

by

Director However,

—

the

which

a

pay

for

a

August to

loss

as

first

first

would

PlC

age

mitigate

as

Complainant

I

the

a

amount

damages

caused

failed

therefore

request

and

a

60.

completed

first

31,

the

emotional

final

officer officer

have

first

SIC

1993,

record

his

at

his

to

in

decision

officer

that

ATR-42

become

the

the

position

conclude

damages. position

the

officer

mitigate

training

termination.

distress

I

Respondent

rate

difference

shows

amount

determine

training

a

with

in

of

first

with

with

that

with

that

this

for

his

10%

he

of a Pursuant to H.R.S. § 368—17(a)(8), the Commission has the authority to award compensatory damages for emotional distress Complainant suffered as a result of Respondent IslandAir’s actions. Complainant and the Executive Director must demonstrate the extent and nature of the resultant injury and Respondent must demonstrate any bar or mitigation to this remedy. The evidence shows that Complainant was very disappointed after Ernst rescinded the offer to attend the August 31, 1990 ground school. Complainant was also upset after he heard that IslandAir had hired Vincent, who had less experience than Complainant. Since June 1994, for approximately 5 years Complainant has struggled to find work as a pilot and has had to live away from his family to accept jobs on the mainland and in Thailand and England. This also caused serious financial stress, a loss of self—esteem, frustration and contributed to the break up of his marriage. Considering these circumstances, I determine that $150,000 is appropriate compensation for injury to Complainant’s feelings, emotions and mental well—being.

5. Punitive Damages

I-I.R.S. § 378—17(a) 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, Tseu on behalf of the complaint filed by Gould, v. Dr. Robert Simich et. al., Docket No.

950—l2—E—SH (October 29, 1996) ; Masaki_’L, General Motors Corp., 71

— 43 —

conduct

attempted

Rights

Compensatory

submitted

(July protected

supports managers’

77

punitive

for

infer Merriweather

576,

or

damages

indifference

conscious

entire

obligations,

implies that

Director Haw.

BNA

firing

attempted

69

In

Respondent

reckless

14, Act

1,

can

EPD

want

in

1611,

damages

claim

a

Title

6,

to

rights

to

are

of

plaintiff);

attempts

indifference

support

1992)

cases

spirit

44,479

and

jury);

780

v.

1991,

conceal

to

of

required

or

indifference

of

1614—1615

VII

to

acted

because Family

Punitive

a

and

P.2d

where

that

care

(evidence

at

of

a

reckless

plaintiff’s

EEOC

to

cases,

finding

cover

issue

87,699

mischief

wantonly,

EEOC

or 566

there

to

defendants

which

to

Dollar

also,

Compliance cover

defendant

Damages

cover—up

show,

consequences.

(9th

(1989)

V.

of

to

up

indifference federal

—

that

that

(7th

has

Wal-Mart

EEOC

would

44

punitive

plaintiff’s

up

Stores

civil

or

oppressively

Cir.

by

their

Cir.

— respondent

Under

been

deliberately

deliberately

a

criminal

their

Policy

Manual,

clear

discriminatory

Complainant

raise

courts

respondent

rights

1998)

of

1996)

Stores,

some

damages

Section

discriminatory

Indiana,

Id.

and

to

discriminatory

Statement

civil

Section

the

indifference

acted

(district

or

wilful

and

have

plaintiff’s (evidence

convincing

Inc.,

gave

gave

with

102

should

presumption

and

rights

awarded

planned

with

Inc.,

found

603

practices

of

false

No.

misconduct

156

false such

the

court

malice

the

par.

have

regarding

and

F.3d

915.002,

103

evidence,

malice

Executive

conduct.

punitive

reckless

federal

to

conduct

reasons

and/or

reasons

Civil

award

could

2062

been

989,

civil

of

F.3d

or

or

or

as a reckless indifference) . I therefore conclude that this Commission may similarly find an “entire want of care which would raise the presumption of a conscious indifference to consequences” and award punitive damages in cases where respondents deliberately give false reasons or attempt to cover up their discriminatory conduct. In the present case, there is clear and convincing evidence that Respondent IslandAir attempted to cover up its discriminatory practices by concocting various reasons for not hiring Complainant. Up until January 1999, IslandAir admitted it had a policy of not hiring monocular pilots from at least August 1990 through the present, and that it rejected Complainant because he was monocular. In the related federal case, the Executive Director alleged that Complainant applied for and was denied a position from August 1990 through July 25, 1991 and from May 1994 through August 9, 1994. (see, Defendant Tseu’s Concise Statement, attached as Ex. 10 to Complainant’s Motion for Summary Judgment filed on February 5, 1999) IslandAir did not dispute these allegations and submitted an affidavit from Cabrinha stating, inter alia, that he was President of IslandAir from September 1, 1991 through March 31, 1995 and that “[a]t all times while I was President at Islandair, Islandair would not hire monocular . . . pilots.” Plaintiff Aloha Islandair, Inc. ‘s Concise Statement attached as Ex. 11 to Complainant’s Motion for Summary Judgment filed on February 5, 1999; Ex. 40). Based on these allegations and the affidavit, the District Court, in an order drafted by IslandAir’s counsel, found, inter alia,

— 45 —

policy

until

applications

who

the to

not

Complainant

IslandAir’s

response qualification

Interrogatories

response was

both vision

December

Islandair’s

In

interrogatory its

does have essential

not

September deceased.

by best

need Prior

eyes

prior

monocular

had

Pied

it

answers

in to

20/20

not

its

is

to

Again,

9,

Pursuant

of

to

or

‘..‘ere

both

at

to

to applied

hire

to

Pied

undisputed

interrogatory

minimum

1998,

IslandAir’s

have have

did

Cabrinha’s

1,

draft

first

job

all

made

corrected

requirements.”

1989,

eyes”

1991.

this to

Complainant’s pilots”.

pilots also

was

otherwise

#17

to

functions

20/20

20/20

prior

Complainant’s

IslandAir

relevant

to

is

answer pilot

President

not

the

Therefore

Aloha

and

states

dated

prior

administration.

Islandair

to

who

corrected

for

corrected Executive

knowledge, hired,

vision

(Ex.

“Aloha

July

qualifications

#3

not

to

Islandair

of did

December

the

admitted

that

to

times 24

—

the

25,

Cabrinha’s

H)

meet

a

46

James

First in

not

in

(Ex.

purposes

Islandair’s

First

pilot

in

ocder

199i.

interrogatory

Directoce

vision

IslaridAir

vision

whole

— both

Aloha the

have

1991

a

9, 45)

that

ackno.’ledges

determined

Cabcinha

I.

Request

can

administration. Request

policy

policy

eyes,

or

1998,

in

and

20/20

in

Islandair’s

of

of

Williamson

be

“Pied

allegations,

In

in

both

does

both

policy

having

this

1994.

performed

did

and

was

part,

its

for

IslandAir

of

corrected

#10 eyes.

did

the

not

for

not

eyes.

that

its established

Motion

Admissions

draft,

not

20/20

in

because

existence

become

not

Islandair

minimum

believe

states

draft

who

complainant’s

August

Answers

pilots

To

by

hiring

meet

(Ex.

states

vision

corrected

that

President

the

unsigned

someone

is

answer

he

of

pilot

46)

Aloha

199129

that

dated

that

did

the

to

in in After December 1998 IslandAir claimed that its policy was not established until the end of September 1991 and did not exist prior to that date. (Tr. at 464—466) On January 27, 1999 it amended its answers to interrogatories to reflect this change and to allege that Complainant was not hired in 1990 because he had not timely applied. (Tr. at 496-497; Ex. 48) Wing, the IslandAir director of administration, testified that he prepared the draft answers (Ex. 46) based on information provided by Patricia Pedro, IslandAir’s manager of human resources. (Tr. at 488—490) Pedro at first denied that she aided Wing in preparing the draft responses to interrogatory numbers 3, 10 and 17. (Tr. at 802—807, 809—810) She later admitted that she assisted Wing with these interrogatories by “finding information”. Specifically, Pedro testified that she spoke to Ernst about interrogatory #3 and that Ernst provided the information in the draft response. (Tr. at 808, 812—813) Pedro then contradicted herself and testified that Ernst did not provide this information and that she and Wing somehow put the answer together. (Tr. at 813-815) Wing testified that he changed the draft answers solely based on discussions with IslandAir’s counsel, who became aware of new facts. The changes were not based on any records or further discussions with Pedro or any other IslandAir employees. (Tr. at 490—491, 494-495, 502—503, 507—509) Other IslandAir managers were also not forthright. During his deposition, Ernst confirmed that Complainant timely applied for the

November 1990 ground school class but could not give a reason why

— 47 — Complainant wasn’t considered. (Tr. at 686—637; Ex. 80 p. 47-48) Later at the Contested case hearing Ernst testified that Complainant probably wasn’t Considered because he interviewed poorly with Dickey. (Tr. at 656—658) Cabrinha, who as president of IslandAjr conducted an internal investigation of Complainant’s discrimination charge, incredibly testified that he never determined why Complainant was not hired. (Tr. at 461-463) Given the above, I conclude that Respondent IslandAjr deliberately attempted to cover up and Conceal its discriminatory conduct. Complainant should therefore be awarded punitive damages, the amount to be determined after the Commission’s final decision in this case.

6. Attorneys’ Fees and Costs Pursuant to H.R.s. § 368-17(a) (9) the Commission may order payment to the Complainant of all or a portion of the costs of maintaining an action, including reasonable attorneys’ fees and expert witness fees. However, attorneys’ fees cannot be awarded in addition to Punitive damages; rather they must constitute the whole of the punitive damage award or be accounted for as a portion of the total punitive damage award. 85 Haw. 19, 35, 936 P.2d 655 (1997) ; Rornero v. Hariri, 80 Haw. 450, 459—460, 911 P..2d 85 (1996) . I therefore recommend that Complainant should be awarded his reasonable costs, the amount to be submitted and determined after the Commission’s final decision in this case. Complainant should also be awarded his reasonable attorneys’ fees, the amount to be submitted and determined after the Commission’s

— 48 —

Respondent

punitive

maintains

final

Respondent hinder Ninth pilots

certificates.

disability Respondent this

full

(9th

At 7.

b) Finally,

d)

e) c) a)

Cir.

FAA

policy.

decision

Circuit

his

who

the

damages

medical

Other

policy; disability; to cease

post class

press publish

circulation one adopt

formally

1997)

a

IslandAir

IslandAir

within

to

ability

contested

have

policy

consider

the

newspaper

cease

stated

such

(Tr.

in

medical and

Equitable

statement

a

I

awarded.

Executive

I

approval

the

vision and

90

this

desist

written

therefore to

also

train

policy

at

and

of

to

to:

days

that

results

case

in

and/or

safely

495)

adopt

certificates

published

case,

not

desist

Honolulu,

recommend.

waivers

Relief

after

provided

from

all

to

and

hearing,

because

Director

non—discrimination

considering

In

an

hire recommend

—

of

pilot

fly,

if

procedures

its

management

49

from

non-discrimination

Aloha

the

this

such

in

to monocular

—

policy

Hawaii.

his

Complainant

by

asks

Wing

planes.

finat

that

and

implementing

the

contested

their

IslandAir

the

fees

monocular

that

waivers

that

testified

and/or State

and

at

decision

the

Commission

personnel

exceed

pilot

first

the

all

practice

the

128

and

Commission

Pied

case

Inc.

policy

for

hiring

Commission

job

Commission

vision

F.3d

and

policy

who

having

that

in

class

the

their

had

hearing

v.

sites;

in

maintaining

this

about of

have

1301,

amount

monocular

Tseu,

IslandAir

based

does

at

refusing

received

based

medical

vision;

general

direct

case.

order

order

least first

in such

1303

the

not

of

on

on

a I

H.R.S.

Pied

violated

Commission IV.

circulation

newspaper

it IslandAir’s

90

policy

adopting

formal also

days

to

2.

1.

For as

Based

RECO!MENDED

I

The

recommend

§

publish

on

believe

a

training

of

368—17,

the H.R.S.

August

would

Respondent class.

Pied

Respondent

pilot

such

Commission

employee

published

find

on

its

in

non-discrimination

violation

the

policy.

as

have

the

adoption.

on

the

that

and

§

that

the

31,

ORDER

for

378-2

a

matters

the

bulletin

City

conclude earned

to

attached

Commission

IslandAir

the

should

1990 the

in

all

first

basis

found

pay

when and

the best

Commission

management

set

as

—

Complainant

boards

County

—

of

also that

officer

above,

it

August

a Public

State

way

50

to

forth

policy

should

his

first

failed

— Respondent

immediately

direct

throughout

to

of

disability.

I

of

above,

direct

Notice

in

officer 31, personnel

publicize

Honolulu.

recommend

to

order:

back

to

Hawaii

the

the

Respondent

1995,

hire

pay

I

Respondent

Aloha (Attachment

next with

public

its

employ

recommend

Complainant

having within

this

in

that

a

work

IslandAir

ground

IslandAir

the

captain

is

to

decision

pursuant

Complainant

sites

amount

90

to

a

to

post

that 1)

general

school

require

days conduct

Bruce within

with

from

Inc.

in

such the

he

to

and

of a IslandAir from August 31, 1995 — August 31, 1998 and as a first officer with a national airline from August 1998 to his placement in an IslandAir ground school class. This amount should include benefits he would have received and should be offset by any amounts Complainant earned and the value of any benefits he received from August 31, 1990 to the date of his placement. The amount should be adjusted to account for income taxes and should include prejudgment interest at the rate of 10% per annum until the date of the Commission’s final decision. 3. Respondent to pay Complainant the difference between his salary as a first officer with IslandAir and what he would earn as a first officer with a national airline until Complainant obtains a first officer position with a national airline or until he reaches age 60. 4. Respondent to pay Complainant $150,000 as damages in compensation for injury to his feelings, emotions and mental well-being. 5. Respondent to pay Complainant punitive damages, the amount to be submitted and determined at a later hearing. 6. Respondent to pay Complainant his reasonable costs, to be submitted and determined at a later hearing, and his reasonable attorney’s fees and costs, to be submitted and determined at a later hearing if such fees exceed the amount of punitive damages awarded.

— 51 — APPENDIX A

On August 22, 1991 Complainant Bruce Pied filed a complaint against Aloha IslandAir, Inc. (hereinafter “IslandAir”) alleging disability discrimination. On October 12, 1994 Complainant filed a second complaint against IslandAir alleging disability discrimination and retaliation. On December 13, 1994 IslandAir filed an action in the U.S. District Court for the District of Hawaii seeking declaratory and injunctive relief that the Airline Deregulation Act preempted the disability discrimination provisions of H.R.S. Chapter 378. On July 13, 1995 the District Court granted IslandAir’s motion for summary judgment, concluding that the Airline Deregulation Act preempts the application of the disability discrimination provisions of H.R.S. Chapter 378 to IslandAir’s pilot applicants, and permanently enjoined Executive Director from applying the disability provisions of H.R.S. Chapter 378 to IslandAir’s pilot applicants. On October 14, 1997 the Ninth Circuit Court of Appeals vacated the District Court’s order, holding that the disability provisions of H.R.S. Chapter 378 are not preempted by the Airline Deregulation Act because Complainant’s disability discrimination claim does not raise significant safety concerns. On November 19, 1997 the Executive Director issued a notice of finding of reasonable cause to believe that unlaw discriminatory practices have been committed. On August 6, 1998 the Executive Director sent Respondent Aloha IslandAi.r, Inc. a final

—i

statement

On

as

summarily

Notice

Examiner

order

strike

complaints.

scheduling

Examiner

sought

in

disposition

parte

to

26,

administrative

issued.

conciliation

(H.A.R.)

a

September

the

consolidate

party. 1998

On

On

On

granting

motion

of

the

a

contested

August

September

ruling

issued

of

On

issued

granting

August

Scheduling

12—46—17

motion

conference

of

On

support

August

21,

to

On

demand

Complainant’s

such

September

hearing

the

from

25,

postpone

an

1998

September

a

to

case

24,

Complainant’s

in

Notice

order

18,

25,

two

1998

motion.

of

this

postpone

Conference

letter

Complainant

beyond

FEP

1998

hearing.

Complainant’s

and

1998

cases.

1998,

the

the

Commission

24,

reconsidering

Nos.

of

2,

notices

pursuant

thirty

Petition

the

both

scheduling —

scheduling

Executive

1998

On

Scheduling

1998

WH-5137

ii

the

and

This

Executive

Petition

September

On

filed

—

the

complaints

days

Respondent

Order. of

Commission

as

August

to

motion

for

motion.

Executive

docketing

and

to

a

Director

conference

Hawaii

after

in

conference

Declaratory

Conference,

motion

for

his

Director

6827.

part

18,

26,

was

Declaratory

right

the

On

IslandAir

were

Administrative

1998

1998

issued

and

granted

Director

for

of

also

September

docketing

until

and

to

complaint

filed

intervention

amending

Relief,

the

docketed

the

setting

filed

participate

to

an

on

after

moved

Hearings

Hearings

filed

Relief.

a

rescind

of

25,

August

motion

order

which an

the

were

Rule

the

the

the

for

to

a ex hearing

1998 Department were:

room, Attorney

Respondent.

Complainant’s

scheduling

filed scheduling conference

Complainant’s

contested

was

issued conference

Stipulation Records.

A judgment

February

notice

issued

Respondent

On

On

On

830

his

David

on

on

September

February

January

Cheryl

Punchbowl

and

9,

of

October

scheduling of

conference

case

was

conference

on

the

were

for

F.

1999

hearing

On

Labor

Respondent

Motion

January

retaliation

held

Simons,

filed

motion

proceeding.

September

Tipton,

Protected

issued.

the

25,

8,

5,

St.,

and

24,

on

for on 1998.

a

1999

statement.

parties

conference

statement

22,

October 1999

was

Industrial memorandum

Esq.

room

all

1998

and filed

Intervention

On

30,

Order 1999.

Complainant

claim

held

An

on

four

notices

320,

January

Richard

filed

— the

A

1998 Amended

three

5,

behalf

iii

on

Regarding

on Scheduling

On

statement.

motions

Honolulu,

would

1998

Relations

in

Executive

October

the

memoranda

September

September

motions

29,

opposition

of

M.

as

of

and

Scheduling

filed

Hearings

not

Rand,

hearing

Complainant,

a

1999

was

the

Complainant’s

party.

Hawaii. 2,

Director’s

Conference

for be

a

issued Director

30,

IslandAir

in

the

1998.

parties

19,

Esq. motion

to

litigated

summary

opposition

Examiner

1998

Conference

and

parties

the

199998

Participating

on

that

A

Enforcement

Complainant

agreed

pre-hearirig

for

conference motion.

scheduling

filed

behalf

Order

filed

Tax

judgment.

day.

granted

filed at

summary

in

to

Order

that

the

its

its was the

the

of

On

A

a

Tamara

of

behalf

on

on

other’s

Complainant

and

was

to

February

Tarnara

judgment

of

on

Esq.

participating

room,

A

February

Respondent

of

motions.

the

February

hearing

behalf

Respondent’s

behalf

Complainant’s

Complainant

held.

the

On

The

on

M.

hearing,

830

of

M.

motions

February

behalf

hearing,

parties

Gerrard,

on

9,

11,

Gerrard,

the

of

of

The

On

Punchbowl

on

filed

16,

and

all

1999.

the

Complainant,

1999

February

Executive Executive

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on on motions in lirnine. The contested case hearing on this matter was held on February 16, 17, 18, 19, 22, 23, 26 and March 2, 1999 at the Hawaii Civil Rights Commission conference room, 830 Punchbowl Street, room 411, Honolulu, Hawaii pursuant to H.R.S. Chapters 91 and 368. Complainant was represented by David F. Simons, Esq. and Complainant Pied was present during portions of the hearing. The Executive Director was represented by Enforcement Attorney Cheryl

Tipton. Respondent IslandAir was represented by Richard M. Rand,

Esq. and Tamara M. Gerrard, Esq. On February 18, 1999 the parties filed a Stipulation Regarding Executive Director’s Position on Complainant’s Disability. On February 23, 1999 Complainant orally moved to amend his first complaint to allege a failure to hire from the period August 1990 through August 1994. On February 24, 1999 the Executive Director filed a joinder in the motion and Respondent filed a memorandum in

opposition to the motion. A hearing on the motion was held on February 26, 1999 and at the conclusion of the hearing, the Hearings Examiner orally granted the motion. The parties were granted leave to file post—hearing briefs.

On March 23, 1999 the parties filed post—hearing briefs. On March 29, 1999 Respondent IslandAir filed a motion to reopen the record to receive the testimony of Tony Rogers. By letter dated April 16, 1999 this Hearings Examiner notified the parties that she planned to reopen the hearing to take the -v

briefs.

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Esq.

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and

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the

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testimony

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on

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Patricia

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Hearings

1999

Cheryl and

behalf

Rand,

The

for

the

91

at

on A ______

ATTACHMENT 1

PUBLIC NOTICE published by Order of the HAWAII CIVIL RIGHTS COM’1ISSION DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS STATE OF HAWAII

After a full hearing, the Hawaii Civil Rights Commission has found that Aloha IslandAir, Inc. violated Hawaii Revised Statutes Chapter 378, Employment Discrimination, when it failed to hire an applicant for a pilot position because of his disability (monocular vision) . (William D. Hoshijo, Executive Director, on behalf of the complaint filed by Bruce A. Pied and Bruce A. Pied vs. Aloha IslandAir, Inc., Docket Nos. 98—007-E—D and 98-008—E--D—RET, [date of final decision] 1999) The Commission has ordered us to publish this Notice and to: 1) Immediately hire that applicant as a first officer in the next ground school class 2) Pay that applicant back pay in the amount he would have earned (including benefits) if he had been hired in August 1990 3) Pay that applicant front pay (the difference in the amount he earns as a first officer with Aloha IslandAir, Inc. and in the amount he would earn as a first officer with a national airline) 4) Pay that applicant a monetary award to compensate him for emotional injuries he suffered 5) Pay that applicant punitive damages 6) Pay that applicant his reasonable costs and attorneys’ fees, if such fees exceed the amount of punitive damages awarded 7) Cease and desist from implementing and maintaining a policy of refusing to consider and/or hire monocular applicants who have FAA first class medical certificates with vision waivers 8) Develop a written non discrimination policy based on disability, conduct training on such policy and post such policy on employee bulletin boards.

DATED: By Authorized Agent for Aloha IslandAir, Inc.