Appeal from Decision of Norwalk Human Relations Commission

STATE OF CONNECTICUT

COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

Vilma Pineda,                                                       Appeal of       

Appellant                                                             NHRC Case No. 195-00B

v.                                                                

Custom Image Embroidery Co.,
Sheldon Penn, and Norwalk
Human Relations Commission,                          June 14, 2001

Appellees

RULING ON APPEAL FROM DECISION OF NORWALK HUMAN RELATIONS COMMISSION

I. INTRODUCTION

    On January 12, 2001, the Commission on Human Rights and Opportunities (CHRO) received an appeal filed by appellant, Vilma Pineda (Pineda), pursuant to Conn. Gen. Stat. § 7-148l and Regulations of Connecticut State Agencies (Regulations) §§ 46a-54-127 et seq. Pineda appeals from a decision of the Norwalk Human Relations Commission (NHRC) dated December 12, 2000, and mailed on December 14, 2000¹.  On March 2, 2001, the NHRC forwarded to the CHRO the certified record, which arrived on March 7, 2001.

II. PARTIES

Appellant

Vilma Pineda
32 Chestnut Street, First Floor, Norwalk, Connecticut 06854;

Appellees

The NHRC

                Commissioners Art Scialabba, Chairman; Joanne Romano;
                Mariusz Kossarsky; Steve Papadakos; Barbara A. Amodio; Ruthie Brown;
                and Sonja Devitt, Director.
                NHRC, 125 East Avenue, P.O. Box 5125, Norwalk, Connecticut 06856.

                And

III. JURISDICTION

    The CHRO has jurisdiction over this appeal in accordance with Conn. Gen. Stat. § 7-148l and Regulations § 46a-54-127. Regulations § 46a-54-127 provides:

The timely filing of this appeal occurred on January 12, 2001, within thirty days of the December 14, 2000 mailing of the decision of the NHRC.

    Moreover, Pineda timely filed her discrimination complaint with the NHRC. In her complaint, Pineda averred ongoing, continual sexual harassment during her employment with Custom Image Embroidery Company (CIEC), culminating in the January 6, 2000 termination of her employment for rejecting sexual advances of Sheldon Penn (Penn), president of CIEC.  She filed the NHRC complaint on January 15, 2000.

    Accordingly, this appeal is ripe for decision by the CHRO.

IV. ISSUES ON APPEAL

    Pineda has framed the issues on appeal in her appeal petition. Thus, the CHRO's review of the decision and the underlying procedings is limited to these issues.

    1) Did the NHRC err in awarding Complainant only $2,500 for eliminated overtime?

    2) Did the NHRC err in not awarding Complainant front pay since she was fired from her job because she objected to defendant's unwelcome sexual advances?

    3) Did the NHRC err in not awarding Complainant compensatory damages for pain, suffering, physical and emotional distress, embarrassment, humiliation, and loss of enjoyment of life?

4) Did the NHRC err in not awarding Complainant punitive damages?

V. STANDARD OF REVIEW

    Pursuant to the Regulations, the CHRO shall affirm the decision of the NHRC "unless it is found that substantial rights of the appellant have been violated in that the board's decision:

    (1) violates or exceeds the authority the local board has been granted by statute, rule or ordinance;

    (2) is clearly erroneous in view of the record; or

    (3) is arbitrary, capricious or an abuse of or clearly unwarranted exercise of discretion." Regulations § 46a-54-130(c) and § 46a-54-131(d).

    Moreover, the CHRO shall not substitute its judgment for that of the local board. Regulations § 46a-54-130(d).

    The standards governing this appeal are not unlike those for an appeal from an agency decision to the Superior Court under the Uniform Administrative Procedure Act (UAPA). Under the UAPA, the court’s

(Brackets omitted; citations omitted; internal quotation marks omitted.) New England Cable Television Assn., Inc. v. DPUC, 247 Conn. 95, 117-18 (1998).

VI. DISCUSSION

    A detailed recitation of the facts is not necessary because Pineda challenges neither the NHRC’s findings of fact nor its legal conclusion of sexual harassment.  Rather, Pineda’s appeal targets primarily the damage award.  See January 11, 2001 Appeal From Decision of Norwalk Human Relations Commission.  The CHRO summarizes below the factual findings of the NHRC relevant to, and necessary for, resolution of this appeal.

    CIEC hired Pineda in 1995, and her sister Lilia (collectively, "the Pineda sisters") in 1997. For a period of approximately two and one half years, Penn displayed excessive attention toward Pineda.  For example, Penn bought her food, gave her money toward the purchase of a car, touched her, pulled her bra strap, stroked her hair, and asked her to have sex with him.  On a number of occasions, Pineda asked Penn to stop this behavior.  After finally accepting that Pineda was not going to acquiesce in his requests, Penn became unpleasant.  He would irrationally reject her work, and denied her overtime, which previously had been available.

    CIEC experienced a financial downturn in 1998 and 1999.  In December 1999, Penn told his employees that because of lack of profitability there would be no bonuses that year.  He also reported that layoffs were probable.  Penn announced in December 1999 that because of some large orders due for delivery before Christmas, everyone had to work December 24.  Upset by not getting bonuses and having to work on Christmas Eve, the Pineda sisters failed to report to work on December 24. Later, on January 2, 2000, Penn learned that the Pineda sisters were trying to convince another employee, Carmen, to quit.  The Pineda sisters had had interpersonal problems with other employees, which on occasion involved the police.  Ultimately, Penn terminated the Pineda sisters' employment on January 7, 2000.

    Based on these findings, the NHRC found that Penn sexually harassed Pineda.  It did not conclude, however, that the sexual harassment was the basis for the termination of Pineda’s employment.  The NHRC ordered Penn to pay Pineda $2,500.00 in damages.  It also ordered CIEC to post the antidiscrimination notices required by law, and to provide sexual harassment training and education to Penn and all employees.

DECISION

    First, Pineda raises the issue that the NHRC erred in awarding her only $2,500 for eliminated overtime.  The record shows that Pineda had a decrease in income due to a loss of overtime the last several months of her employment.  Thus, the evidence supports an award for loss of overtime resulting from the sexual harassment.  The record is somewhat unclear, however, as to the amount of overtime that would have been available but for the discriminatory conduct.  That the award may have been more (or less for that matter) is irrelevant.  What is relevant is that there was sufficient evidence to support the award of $2,500.  Given the limited scope of review, the CHRO cannot conclude that the dollar amount ordered was clearly erroneous in light of the record as a whole; nor was it arbitrary, capricious, or an abuse of discretion.

    Pineda also argues on appeal that the NHRC erred in not awarding her front pay since Penn fired her because she objected to Penn's unwelcome sexual advances.  The problem with this argument is that it presupposes error in the NHRC’s conclusion that Pineda's termination from her employment was not tied to her rejection of Penn's sexual advances.²  That the CHRO or another factfinder may have reached a different conclusion is of no moment to the resolution of this issue.  The CHRO may not substitute its judgment for that of the NHRC. In view of the record as a whole, the NHRC's conclusion that the termination of Penn's employment was not a result of her rejection of Penn's sexual advances is not clearly erroneous.  Indeed, the NHRC found that Pineda failed to report to work on December 24, was involved in trying to persuade another employee to quit, and had certain interpersonal problems with other employees, which at times required police involvement.  This evidence coupled with the fact that the NHRC had the benefit of viewing the demeanor of the witnesses, is ample support and reason for its conclusion.  Accordingly, because the record supports the NHRC's decision that Pineda was fired for legitimate nondiscriminatory business reasons, an award of front pay was not warranted.

    Pineda next claims that the NHRC erred in not awarding her compensatory damages for pain, suffering, physical and emotional distress, embarrassment, humiliation, and loss of enjoyment of life.³   The short answer to this argument is that CONN. GEN. STAT. § 46a-86(b), as interpreted by the State Supreme Court, does not allow for such damages. Bridgeport Hospital v. CHRO, 232 Conn. 91, 111-12 (1995)(damages for emotional distress and attorney’s fees not authorized under § 46a-86(a) for discriminatory employment practices).  Hence, Pineda's claims for emotional distress and related damages suffer a swift demise under CONN. GEN. STAT. § 46a-86(b).

    Pineda's remaining claims are equally without merit.  The relief sought by Pineda includes not only back pay, front pay, compensatory damages and punitive damages, but also interest, attorney's fees, costs, and a release of jurisdiction in order to commence legal action.  As explained above, punitive damages, and attorney's fees and costs are not compensable under § 46a-86(b) in light of Bridgeport Hospital.

    Awards of interest are within the sole discretion of the factfinder.  Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 144 (2d Cir. 1993) cert. denied, 510 U.S. 1164 (1994); Worthington v. City of New Haven, 1999 WL 958627 *17 (D. Conn. 1999); Silhouette Optical Limited v. Commission on Human Rights and Opportunities; 10 Conn. L. Rpt. No. 19, 599 (February 28, 1994) (Superior Court, J. D. of Hartford/New Britain, CV 92-520590).  Since there is no right to interest, an attack on the amount or lack of an interest award will not lie.

    Lastly, the CHRO cannot grant a release of jurisdiction because there is no complaint pending with the CHRO.  As with any legal action, the choice of forum decision is difficult. Here, Pineda elected to pursue her claim through the NHRC.  There being no complaint pending with the CHRO it is impossible as a matter of law to grant a release of jurisdiction.

VII. CONCLUSION

    Based on the foregoing, the CHRO affirms the decision of the NHRC and, accordingly, dismisses this appeal.

CONNECTICUT COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES

Adopted by a unanimous vote of the commissioners of the commission on human rights and opportunities present and voting at the regular monthly meeting of the commission held on June 14, 2001, at Hartford, Connecticut.

_________________________________________ DATE: June 15, 2001

AMALIA VAZQUEZ BZDYRA,
CHAIRPERSON

1The NHRC dismissed a companion case, Lilia Pineda v. Custom Image Embroidery Co. and Sheldon Penn; NHRC Case No. 196-00B. Lilia Pineda did not appeal the NHRC decision to the CHRO.

²Because Pineda did not appeal the finding regarding her termination, she arguably has waived the right to make the front pay argument. Nothwithstanding this observation, the front pay claim fails on the merits.

3The NHRC's authority to award damages emanates from CONN. GEN. STAT. § 7-148j(3), which references § 46a-86. The NHRC has "the power to hold hearings relating to any allegation of discriminatory practice which it has found reasonable cause to believe has occurred and to issue appropriate orders including those authorized by section 46a-86." Conn. Gen. Stat. § 7-148j(3).