9920353, Rose v. Payless Shoesource, Final Decision
Commission on Human Rights and Opportunities, ex rel. Sheron Rose, Complainant
Payless Shoesource, Inc.
November 1, 1999
AFTER HEARING IN DAMAGES
On April 12, 1999, Sheron Rose ("complainant") filed a complaint with the Commission on Human Rights and Opportunities ("commission"). The complainant alleged that Payless Shoesource, Inc. ("respondent") illegally discriminated against her in violation of General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4), and Title VII of the Civil Rights Act, 42 U.S.C. 2000e, et seq. She alleges that she was retaliated against and terminated from her employment by the respondent on the basis of national origin and ancestry, and for having previously opposed a discriminatory employment practice. For the reasons stated herein, the respondent is found to have discriminated against the complainant. Relief is ordered as set forth herein.
The complainant is Sheron Rose, of 86 Locust Street, Bridgeport, Connecticut. The Commission on Human Rights and Opportunities is located at 21 Grand Street, Hartford, Connecticut. The respondent is Payless Shoesource, Inc., with a store located at 411 Barnum Avenue Cutoff, Stratford, Connecticut.
II PROCEDURAL HISTORY
The complaint was filed on April 12, 1999. On July 12, 1999, the Deputy Director for Enforcement, duly authorized, entered an "Entry of Default Order and Notice of Public Hearing" against the respondent pursuant to General Statutes § 46a-83. Pursuant to §§ 46a-83 and 46a-84 the undersigned was appointed as the presiding officer to determine the relief necessary to eliminate the discriminatory practice complained of and make the complainant whole. Notice was given that a hearing was scheduled for September 14, 1999. On September 14, 1999 the hearing was held. The complainant and the commission appeared to prosecute the action. The respondent did not appear.
III FINDINGS OF FACT
In any hearing in damages upon default, the hearing is limited to the relief necessary to eliminate the discriminatory practice and make the complainant whole. Based upon the complaint, exhibits, and testimony, the following facts relevant to this decision are found:
- All procedural, notice, and jurisdictional prerequisites have been satisfied and this matter is properly before this presiding officer to hear the complaint and render a decision.
- The complainant is a member of one or more protected classes, in that she is of Jamaican origin and ancestry, and she opposed a discriminatory practice committed by the respondent.
- The respondent employs at least fifteen people.
- The complainant began working for the respondent on or about March 1995. She worked in various locations until August 1997 when she became the manager of its store located at Barnum Avenue Cutoff, Stratford, Connecticut.
- In July or August of 1998, the store incurred shortages of both merchandise and cash. The complainant reported the shortages to her supervisors and also reported that cash shortages occurred when Kerry Grant, a non-Jamaican, worked the cash register. The respondent did not immediately investigate the matter.
- In October 1998, the respondent sent employees named Sal (surname unknown), an investigator; Tom Coulter, an assistant district manager; and Pat Bly, a training supervisor; to investigate the lost merchandise.
- In October 1998, the respondent employed two other Jamaican workers at its Barnum Avenue store, Shelleann Nelson and Joan Jarrett.
- During October 1998, Sal, Coulter, and Bly repeatedly interviewed the complainant about Nelson and Jarrett regarding the lost merchandise. The complainant was not asked similar questions regarding non-Jamaican employees.
- During the investigation, Coulter, in referring to Jarrett, said "she can’t even speak proper English" and encouraged the complainant to terminate Jarrett’s employment.
- In October 1998, Bly instructed the complainant to reduce the working hours of Nelson and Jarrett to three hours each per week. The complainant refused. As a result of the complainant’s refusal, the respondent transferred Christine Heady, who is non-Jamaican, from its Trumbull, Connecticut store to the Barnum Avenue Cutoff store. Bly and Coulter then instructed the complainant to assign Heady a large part of the limited weekly hours, thereby reducing the hours of Nelson and Jarrett.
- In December 1998, Coulter told the complainant to suspend Nelson as a result of the loss prevention investigation. The complainant saw no evidence to support this claim as Nelson was on maternity leave for the bulk of the time period that was audited.
- On December 19, 1998, the complainant went on a pre-approved vacation that was scheduled to last until January 8, 1999. She contacted Bly to advise her that she would be unable to return to work on January 8, 1999 but would return on January 11, 1999. Bly had no objection. However, when complainant returned to work, she discovered that she had been scheduled to work four days at 12-hour shifts. The complainant’s hours had never been scheduled that way before.
- On Tuesday, January 19, 1999, the complainant was terminated for falsifying her time sheet for Saturday, January 16, 1999. Because time sheets must be submitted on Saturdays or else the employees would not be paid for that week, the complainant historically had estimated her Saturday hours, sometimes overestimating and sometimes underestimating the time she would work. The Saturday estimation had never been a problem in the past. Also, the complainant was a salaried employee, regardless of the number of hours she actually worked.
- At the time of her termination, the complainant was earning $548.08 per week gross.
- The complainant collected unemployment compensation from February 26, 1999 to July 11, 1999 that totaled $6,204.
- The complainant, after reasonable diligence, began work as a teller with People’s Bank on June 22, 1999. She earns $360 per week gross.
- The complainant’s mitigation from the date of termination, January 19, 1999, to the date of the public hearing, September 14, 1999, totaled $10,524, which includes $6,204 in unemployment compensation benefits. Had the complainant remained employed by the respondent, her income from this same period would have totaled $18,634.72, based upon $548.08 per week for 34 weeks. The difference between what her income from the respondent would have been and her actual mitigation represents a loss to the complainant of $8,110.72.
- The complainant’s reasonably anticipated income from the date of the public hearing, September 14, 1999, to December 31, 2000 is $24,120, based on $360 per week for 67 weeks. Had she remained employed by the respondent, her income for this same period would reasonably have totaled $36,721.36, based on $548.08 per week for 67 weeks. The difference between what her income from the respondent would have been and her likely mitigation represents a loss to the complainant of $12,601.36.
- Given the animus and suspicion exhibited by the respondent toward its employees of Jamaican ancestry, reinstatement is not a viable alternative.
A APPLICABLE STATUTES AND REGULATIONS
Upon the entry of a default order by the executive director or designee, the presiding officer is authorized to issue an order eliminating the discriminatory practice complained of and making the complainant whole. General Statutes § 46a-83(i); Regs., Conn. State Agencies § 46a-54-95(d). Allegations in the complaint that are not answered by the respondent are deemed admitted without the need for further proof. Regs., Conn. State Agencies § 46a-54-94(b).
B APPLICABLE CASE LAW
The presiding officer is authorized to award back pay and front pay. Silhouette Optical Limited v. Commission on Human Rights and Opportunities, Superior Court, Judicial District of Hartford/New Britain at New Britain, CV 92-520590, pp. 13, 16-17 (January 27, 1999); State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989). The award of front pay must be limited to a reasonable time period and supported by the evidence. Torosyan v. Boehringer Ingelheim Pharmaceuticals, Inc., 234 Conn. 1, 33-34 (1995).
The respondent was given legally sufficient notice of the Notice of Hearing in Damages Pursuant to an Order of Default (Exhibit 5; Transcript 9-10).
The deputy director for enforcement had the authority to enter the "Entry of Default Order and Notice of Public Hearing" pursuant to General Statutes § 46a-83.
The entry of default established the respondent’s liability for violation of General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4).
The award of front pay through December 31, 2000 is reasonable in time and supported by the evidence. In addition to working full-time, the complainant is currently a part-time student. She is majoring in accounting and expects to graduate in December 2000 (Transcript, 27-28). A degree in accounting will increase her employment potential (Transcript, 28) and income potential. Because the complainant is currently limited in her employment options due to her student status, because her student status is of limited duration, and because her reinstatement is not a viable alternative, the award of front pay in this case is appropriate and reasonable.
The commission’s request to include bonuses totaling $300 in the back pay award is not supported by the evidence. The complainant testified that the bonus depends on sales and can range between $100 to $500 (Tr., 14). Given its speculative nature, awarding the bonus would be inappropriate.
V CONCLUSION OF LAW
The respondent illegally discriminated against the complainant on the basis of her national origin and ancestry, and her opposition to a discriminatory employment practice in violation of General Statutes §§ 46a-60(a)(1) and 46a-60(a)(4).
VI ORDER OF RELIEF
The respondent shall pay the complainant the sum of $8,110.72 as back pay. Pursuant to General Statutes § 46a-86(b), the respondent shall pay to the commission $6,204, representing the unemployment compensation amount paid to the complainant. The commission shall then transfer such amount to the appropriate state or local agency.
The respondent shall also pay the complainant the sum of $12,601.36 in front pay for the period of September 14, 1999 to December 31, 2000.
Pursuant to General Statutes § 37-3a, postjudgment simple interest is awarded on the $20,712.08 net award of back and front pay. Said interest shall accrue on the unpaid balance at the rate of 10% per annum from the date of this decision.
The respondent shall provide the complainant with a standard letter of employment stating dates of employment, position(s) held, and rate(s) of pay regarding the complainant’s employment with the respondent.
The respondent, should prospective employers seeking references concerning the complainant ever contact it, will provide only the dates of said employment, the last position(s) held, and rate(s) of pay. In the event additional information is requested in connection with any inquiry regarding the complainant, the respondent shall require written authorization from the complainant before such information is provided, unless required by law to provide such information.
The respondent shall post in prominent and accessible locations, visible to all employees and applicants for employment, such notices regarding statutory antidiscrimination provisions as the commission shall provide. The notices shall be posted within three working days of their receipt.
The respondent shall cease and desist from all acts of discrimination prohibited under federal and state law and shall provide a nondiscriminatory work environment pursuant to federal and state law.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
C: Ms. Sheron Rose
Atty. Raymond P. Pech
Payless Shoesource, Inc.