Fragante v. City and County of Honolulu, CIV 83-1129.
| Decision Date | 29 September 1987 |
| Docket Number | No. CIV 83-1129.,CIV 83-1129. |
| Citation | 699 F. Supp. 1429 |
| Parties | Manuel T. FRAGANTE, Plaintiff, v. CITY AND COUNTY OF HONOLULU, et al., Defendants. |
| Court | U.S. District Court — District of Hawaii |
William D. Hoshijo, Esther K. Arinaga, Na Loio No Na Kanaka, Honolulu, Hawaii, for plaintiff.
Richard D. Wurdeman, Corp. Counsel, Gilbert C. Doles, Deputy Corp. Counsel, City and County of Honolulu, Honolulu, Hawaii, for defendants.
FINDINGS OF FACT AND CONCLUSIONS OF LAW AND ORDER
This is an employment discrimination case brought under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972, 42 U.S.C. Sec. 2000e-2 and 2000e-5.
The Plaintiff alleges that Defendants discriminated against him by disparate treatment on the basis of national origin, accent, and race when they denied him employment. The Defendants defend on failure to state a claim and denial of unlawful discrimination.
The Plaintiff, Manuel T. Fragante, is a United States citizen of Philippines national origin. He was born September 27, 1921 in Manila. He was well educated, with honors, in the Philippines. He served as a career officer for 30 years in the Philippines Armed Forces retiring while holding the position of Army Adjutant. Most of Mr. Fragante's schooling, both civilian and military, was conducted primarily in English. After retirement he had subsequent work experience of a supervisorial and administrative nature in Manila, Philippines.
In April, 1981 he and his wife immigrated to the United States where he was naturalized as a citizen in Honolulu, Hawaii in January, 1983, during which period he worked for the Honolulu Community Action Program.
The Defendant City and County of Honolulu is a municipal corporation within the State of Hawaii. Defendants George Kuwahara, Dennis Kamimura, Peter Leong, Kalani McCandless and Eileen Anderson were employed by the City in their respective positions of Assistant Licensing Administrator, Licensing Administrator, Director of the Department of Finance, Secretary to the Licensing Administrator; and Mayor. Presently Peter Leong and Eileen Anderson are no longer employed by the City and Kalani McCandless is deceased.
On November 2, 1981 the City placed an advertisement in the daily newspapers for an employment opportunity as a Clerk SR-8. On November 10, 1981 Plaintiff submitted his application for the advertised position. On December 19, 1981 he took the Civil Service written examination number 043812. He received a grade of 96 and was ranked number 1 on the list of eligibles. 721 applicants took the exam, 371 passed and 350 failed.
Mr. Fragante was one of fifteen applicants certified to the Department of Finance, Motor Vehicles and Licensing Division in response to a request for eligibles dated March 22, 1982 to fill two Clerk SR-8 vacancies. Of those certified Plaintiff was ranked number 1.
The employment announcement posted for the SR-8 position concerning the eligible list and referral stated:
The names of the "top five" qualified applicants with the highest examination grades will be referred to the employing agency in the order of their examination grade and availability for employment according to Civil Service Rules. The employing agency may select any one of the eligibles referred. Those not selected will remain on the list for at least one year for future referrals.
Rule 4.2d of the Civil Service Rules provides, in pertinent part, "an appointment from such certified lists of eligibles may be made without regard to rank order."
Thus, Civil Service certified fifteen applicants for the two positions. The fifteen included the five highest scores including tied scores, transfer, and reemployment applicants who also qualified. Four, including Fragante, chose to be interviewed and five had been interviewed previously. All nine were considered minimally qualified.
On April 6, 1982, Plaintiff reported to the Division of Motor Vehicles and Licensing for a scheduled interview. The interview was conducted by George Kuwahara and Kalani McCandless. Normally, the administrator would participate as a third member of the interview panel, but that did not occur in these interviews.
Kuwahara, a college graduate, regularly conducted interviews for vacancies in the Division and was involved in 50-100 interviews during the three years he was assistant licensing administrator.
Kalani McCandless was the division secretary. She worked under Kuwahara, the number two person in the Division, but as described by the Administrator, Dennis Kamimura, she was "really the office manager rather than a secretary." She had served in almost all of the positions in the Motor Vehicle Division, was a good interviewer and had vast experience as an interviewer and as an employee in the Motor Vehicle Division, having preceded both Kuwahara and Kamimuri in the Division.
The April 6 interview took approximately 10-15 minutes. The interview was informal. There were no written interview questions but it was standard as compared to other interviews then and on previous vacancies. Although standard, the interview lacked formality as to standards, instructions, guidelines, or criteria for its conduct. There was no validation of questions and the interviewers were not formally trained in the process.
After the interview, on the same day, Kuwahara and McCandless scored Plaintiff on an interview rating sheet. The rating sheet was inadequate. Ratings categories were vague, qualitative in nature though reduced to qualitative terms, non-correlative, and not clearly job related nor well defined. Dr. James Kirkpatrick, an Industrial Psychologist, termed it seriously flawed. He testified that written tests are acceptable and reliable. But that the interview and the rating system were entirely subjective and did not meet federal or any acceptable standards of collective decision making. He did not have any familiarity with the activities of the license bureau and never talked to Fragante.
After all those certified had been interviewed, including Plaintiff, Kuwahara and McCandless reviewed the scores which in reference to Plaintiff had noted "Very pronounced accent, difficult to understand," and They discussed the applicants in relation to the job demands and decided by consensus on their recommendations to the Finance Director, Peter Leong.
In a written recommendation dated April 13, 1982, Kuwahara requested that Melvin Abe and Morris Miyagi be selected for the vacancies, and ranked Plaintiff third among the four applicants interviewed. He was described as follows:
3. Manuel Fragante — Retired Phillipine (sic) army officer speaks with very pronounced accent which is difficult to understand. He has 37 years of experience in management and administration and appears more...
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Fragante v. City and County of Honolulu
...because of his national origin. Finding no proof of a discriminatory intent or motive by the defendant, the court dismissed Fragante's complaint, 699 F.Supp. 1429, and he appeals. We have jurisdiction under 28 U.S.C. Sec. 1291, and we In April 1981, at the age of sixty, Fragante emigrated f......