In a majority decision, the Supreme Court of Hawaii has affirmed a decision by the Hawaii Civil Rights Commission (HCRC), which held that a student manager for the University of Hawaii basketball team and the university were liable for a racial slur the student manager directed at a fan during a game.
Specifically, the court held that the manager was an agent for the university and was acting within the scope of his authority when he inflicted the verbal insult..
The incident occurred on February 18, 1995 during a UH men’s basketball game. The manager, who was the son of head coach Riley Wallace, was sitting toward the end of the bench. Behind him was a fan, the plaintiff, who was becoming increasingly frustrated with the decisions of the head coach.
The fan began heckling the coach, calling him a “dinosaur,” alleging that he didn’t know what he was doing, claiming he didn’t know how to “coach talented players,” among other things.
The younger Wallace grew progressively irritated. First, he notified Rich Sheriff, the arena manager, but Sheriff deemed the remarks were not “offensive” and did nothing. The situation exploded with about two minutes left in the game when the fan yelled to the coach that he “should pack (his) bags and go already.”
At that, the younger Wallace turned to the fan and said: “Shut up you fucking nigger! I am tired of haring your shit! Shut your mouth or I’ll kick your ass!”
The fan: “Oh yeah, punk, come over and try it! You see me all the time, what’s the problem?”
Moving within a few feet of the fan, Wallace issued another verbal challenge: “Just shut up, nigger, or I’ll kick your ass.”
The fan: “Oh yeah, you and who else?”
Before the confrontation could turn physical, the stadium manager stepped in and Wallace left for the locker room. But the plaintiff turned around to see who had heard the exchange, in search of witnesses. The elder Wallace, who had not heard the conversation, sought to smooth things over with the plaintiff, but the plaintiff would have none of it.
In fact, the plaintiff filed a formal complaint with Honolulu Police Department, but the police department determined that the complaint was civil in nature. While the plaintiff contemplated his options, Hawaii AD Hugh Yoshida became an intermediary of sorts, setting up a meeting between the coach, his son and the coach’s wife. Both sides seemed to reach an agreement to move on.
However, the situation became inflamed again when Wallace told his team about the incident, including the racial slur that was used. One of the African American members of the team contacted the plaintiff at his home and said he was upset that the manager had not been disciplined and that the coach had told the team that they weren’t to speak to the plaintiff.
This incident enraged the plaintiff who again met with independently with the coach and AD, asking that they suspend the younger Wallace. On August 17, 1995, the plaintiff filed a complaint with the HCRC. The plaintiff was successful in obtaining relief as the examiner found that while Wallace was not a UH employee, he was an agent of the university, which was determined to be liable on a theory of respondeat superior. Wallace was found to be personally liable. The examiner awarded $20,000 to the plaintiff to be paid jointly by the university and Wallace. It also implemented civil penalties of $500 against the younger Wallace and $1,000 against the university.
The ruling was appealed to the state courts, where a panel of appellate judges affirmed, finding that Wallace was an agent of the university and was acting within the scope of his authority as an agent. The case was then appealed to the state’s Supreme Court.
Handbook Created Agreement Between Wallace, University
In its review, the high court Wallace’s alleged status as an agent and his specific actions. It concluded specifically that “an agency relationship between UH and Wallace was created” when Wallace endorsed a specific code associated with his responsibilities in the handbook. “The hand book regulated Wallace’s conduct as a student manager. Wallace was thus subject to control by UH.”
The court added that the defendant was also acting within the scope of his responsibilities, noting that “it was foreseeable that Wallace would have some interaction with the public at games while acting in this capacity. This public interaction was described by UH as part of Wallace duties.
Two judges did dissent from the majority’s opinion, focusing on the majority’s contention that it was within Wallace’s scope of responsibilities to “control the crowd at basketball games.”
They wrote that Wallace was supposed to be focused “on the bench.” He was not “authorized” to yell “racial slurs.” State of Hawaii, University of Hawaii; and Rob Wallace v. Eric White, No. 22379
Sup. Ct. Hawaii, 9/12/03
