Commission on Human Rights and Opportunities

Brelig v. F & L Inc., dba Luciano's Boathouse Restaurant

Brelig v. F & L Inc., dba Luciano's Boathouse Restaurant

CASE NO. 9540683

Commission on Human Rights and Opportunities ex rel. Brelig, Diana Lee Complainant 

v.

F & L Inc., d/b/a Luciano’s Boathouse Restaurant, Respondent

February 2, 2000

FINAL DECISION

I Preliminary Statement

A Hearing in Damages ("Hearing") on the above-captioned matter was held on December 13, 1999 at 1:00 p.m. pursuant to an Order of Default dated October 15, 1999 against the Respondents for failure to answer the complaint. The Order of Default established the liability of the Respondent for the discrimination against the Complainant. The Complainant appeared pro se. Attorney C. Joan Parker appeared on behalf of the Commission on Human Rights and Opportunities ("Commission"). The Respondent did not appear at the Hearing. Since liability has been determined, I will only address damages. The Complainant requested an award of back pay of $34,196.44 plus 10% pre-judgment interest and an order for the Respondent to cease and desist from any further discriminatory actions, or retaliation against the Complainant or any member of her family for prosecuting the complaint.

II Parties

The Complainant is Diana Lee Brelig who resides at 275 Essex Road, Westbrook, CT 06498. The Commission is located at 21 Grand St., Hartford, CT 06106. The Respondent is F & L Inc., d/b/a Luciano’s Boathouse Restaurant located at 516 Boston Post Road, Westbrook, CT 06498.

III Procedural History

On April 12, 1995, Diana Lee Brelig ("Complainant") filed a complaint with the Commission alleging that Luciano Mase, owner and president of F&L Inc., d/b/a Luciano’s Boathouse Restaurant discriminated against her in the terms and conditions of employment because of her sex, and that she was sexually harassed, paid a different rate of pay, and retaliated against, in violation of General Statutes § 46a-60(a)(1) et seq. and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C 2000e and the Civil Rights Act of 1991 as enforced through General Statutes § 46a-58(a). The Commission investigated the allegations of the complaint affidavit, found reasonable cause to believe that discrimination had occurred, and attempted to conciliate the matter. After conciliation failed, the complaint was certified on December 17, 1998 to public hearing in accordance with General Statutes § 46a-84(a). I entered an Order for Default on October 15, 1999. The Hearing was held on December 13, 1999 and resulted in an award of damages for back pay, interest and other relief. This decision confirms the previously ordered decision on the record and additionally awards post-judgment interest to the Complainant. All the statutory and procedural prerequisites necessary for the Hearing have been satisfied and this complaint is properly before me for a decision.

IV Procedural Facts
  1. On January 6, 1999, the Notice of Public Hearing was mailed to all parties notifying them that a public hearing would commence with a hearing conference to be held on January 21, 1999 at 10:00 a.m.
  2. On July 16, 1999, the Commission filed a Motion to Default the Respondent, for failure to file a written answer. On August 24, 1999, I granted the default and ordered the Hearing to be held on October 13,1999.
  3. On August 2, 1999, the Respondent attempted to file an answer by filing a copy of the reasonable cause finding. The Office of Public Hearings ("OPH") sent the Respondent a Notice of Return of Documents along with the document filed requesting that the Respondent file an answer that comports with the statutes and regulations.
  4. On August 19, 1999, Attorney Parker filed a Motion to Amend the complaint essentially substituting the Respondent, F&L Inc. for Luciano’s Boathouse Restaurant. On September 20, 1999, I granted the Motion to Amend Complaint.
  5. On August 27, 1999, the Respondent attempted to file an answer that was not signed, not under oath pursuant to statute and thus did not comport with the regulations. Again, the OPH sent the Respondent a Notice of Return of Documents along with the document filed.
  6. On September 17, 1999, the Commission filed a Motion to Default the Respondent for failure to file an answer. On October 15, 1999, I granted the Motion for Default and ordered the Hearing be held on December 13, 1999 at 1:00 p.m.
  7. The Respondent was given proper notice of the complaint, the Motion for an Order of Default, the Order of Default, and the Notice of the Hearing in Damages.

V Findings of Fact
  1. The liability of the Respondent for violations of law alleged in the complaint was established pursuant to the Order of Default.
  2. The Respondent discriminated against the Complainant in regard to her sex, paid her a different rate of pay, sexually harassed her and retaliated against her in the course of her employment.
  3. The Complainant began working at the Respondent’s restaurant in June, 1993. She worked forty hours a week at $3.29 per hour and also received tips that amounted to $500 a week. Tr. at 10-11 and 34-36.
  4. The Complainant’s annual income at the Respondent’s restaurant is $26,000. Tr. at 41-42.
  5. In April, 1994, as a result of a relationship between the Respondent and another waitress, the Respondent reduced the Complainant’s work hours to between twenty-two and twenty-five hours per week. Tr. at 12.
  6. In September 1994, the Respondent reduced the Complainant’s work hours again to between ten and twelve hours per week. Tr. at 12.
  7. On April 1, 1995, the Complainant quit working at the Respondent’s restaurant and immediately obtained employment at Oliver’s Tavern, a.k.a. Bern, Incorporated, Victorian House. Tr. at 13
  8. The Complainant initially worked twenty-five hours per week at Oliver’s Tavern because she was not allowed more hours until she gained seniority. Tr. at 14.
  9. Approximately one year later, the Complainant was given additional work hours, at times increasing to thirty-five hours per week. Tr. at 15.
  10. In January 1997, the Complainant quit working at Oliver’s Tavern and obtained employment as an administrative assistant at Infiltrator Systems. Tr. at 15.
  11. The income that the Complainant earned at Infiltrator Systems exceeded the income she had earned from the Respondent and therefore she is not claiming damages after January, 1997. Tr. at 15 and 54.
  12. The Complainant’s income for the year ending 1994 from the Respondent was $23,750. Tr. at 19 and 36, Commission Exhibit 1.
  13. Due to Respondent’s discrimination, the Complainant earned $2,250 less in 1994 than she would have earned which is $26,000 minus $23,750. Tr. at 42.
  14. The Complainant’s income for the year ending 1995 from the Respondent’s restaurant was a total of $2,291.75 which is $851.75 plus $1,440 in tips. Tr. at 38-39 and 43 and Commission Exhibit 2.
  15. The Complainant’s income from Oliver’s Tavern for the year ending 1995 was $7,271. Tr. at 23 and Commission Exhibit 3.
  16. The Complainant’s total income for 1995 was $9,492.46 that is $16,507.54 less than the income of $26,000 which she would have received from the Respondent. Tr. at 44.
  17. The Complainant’s income from Oliver’s Tavern for the year ending 1996 was $10,561.10. Tr. at 24, 44 and Commission Exhibit 4 and 5.
  18. In 1996, the Complainant made $15,438.90 less than the income of $26,000, which she would have made had she continued working at the Respondent’s restaurant. Tr. at 45.
  19. The Complainant’s total monetary loss for the years 1994, 1995 and 1996 is $34,196.44 which is the amount she would have made but for the Respondent’s discrimination. Tr. at 45-46.

VI Discussion

The issue before me is to decide how much to award the Complainant for back pay. The Order of Default in this case established that the Respondent violated General Statutes §§ 46a-58(a), 46a-60(a)(1), 46a-60(a)(4), 46a-60(a)(8) and Title VII of the Civil rights Act of 1964, as amended, 42 USC § 2000e and the Civil Rights Act of 1991. General Statute § 46a-86(b) expressly authorizes the presiding Human Rights Referee to award compensatory damages and to order such relief as is necessary to eliminate the discriminatory practice and make the complainant whole. The presiding Human Rights Referee also is authorized to award back pay to a Complainant, who has suffered employment discrimination, in order to make her economically whole. Commission on Human Rights and Opportunities, ex rel. Isabel Gomez v. United Security Inc., No. 9930490, p. 5 (Jan. 28, 2000), citing Silhouette Optical Limited v. Commission on Human Rights and Opportunities, Superior Court, Judicial District of Hartford/New Britain at New Britain, Docket No. 92-520590, pp. 13, 16-17 (January 27, 1994). The amount of back pay awarded must be reduced by the amount that the Complainant has earned through reasonable mitigation. See General Statutes § 46a-86(b).

The Respondent’s liability for back pay begins when the discriminatory act causes economic injury. The period during which the Respondent is liable for back pay ends when the Complainant obtains a comparable or higher paying job. Commission on Human Rights and Opportunities, ex rel. Isabel Gomez v. United Security Inc., supra, 5, citing Harkless v. Sweeney Independent School District, 466 F. Supp. 457, 469 (S.D. Tex) aff’d 608 F.2d 594, 22 FEP1571 (5th Cir. 1979).

General Statute § 37-3a authorizes the Human Rights Referee to award prejudgment interest on the back pay award. The award of interest on back pay is within the discretion of the Human Rights Referee. See Silhouette Optical Limited v. Commission on Human Rights and Opportunities, Superior Court, Judicial District of Hartford/New Britain at New Britain, Docket No. 92-520590, pp.21-22 (January 27, 1994).

I find the Complainant extremely credible and that her testimony is supported by the documentary evidence. The Complainant earned $500 per week at the Respondent’s restaurant in 1993. Tr. at 10-11, 34-36. The Complainant’s total annual salary was $26,000.00. After leaving the employment of the Respondent, the Complainant mitigated her damages by obtaining employment with Oliver’s Tavern and Infiltrator Systems. In 1994, the Complainant earned $23,750.00 from the Respondent due to the discrimination and the decrease in hours. Tr. at 19, 36 and Commission Exhibit 1. In 1995, the Complainant earned $2,291.75 from the Respondent and $7,200.71 from Oliver’s Tavern. Tr. at 23, 38-39, 43 and Commission Exhibit 2-3. In 1996, the Complainant earned $10,561.10 from Oliver’s Tavern. Tr. at 24, 44 and Commission Exhibit 4-5. In 1997, the Complainant obtained employment from Infiltrator Systems and her earnings exceeded the earnings, which she would have made at the Respondent’s restaurant, and therefore she is not claiming damages from 1997 through the date of this decision. Tr. at 15, 54. In total, the Complainant earned $43,803.46 in mitigation, which subtracted from $26,000 per year for three years amounts to $34,196.44 in damages.

Therefore in confirming my order on the record at the Hearing, I order $34,196.44 in back pay damages plus 10% pre-judgment interest of $3,419.64 for a total award of $37,616.08 plus post-judgment interest. The back pay award is calculated as follows:

BackPay

1994:

$500/per week x 52 weeks = $26,000.00/per year
Minus mitigation: $23,750.00
1994 lost wages $2,250.00

1995:

$500/per week x 52 weeks = $26,000.00/per year
Minus mitigation: $9,492.46
1995 lost wages $16,507.54

1996:

$500/per week x 52 weeks = $26,000.00/per year
Minus mitigation: $10,561.10
1996 lost wages $15,438.90

Total Lost wages $34,196.44
plus 10% pre-judgment interest $3,419.64

Total Back Pay award $37,616.08

ORDER
  1. The Respondents shall cease and desist from any further discriminatory practices.
  2. The Respondent shall not retaliate against the Complainant or any member of her family for prosecuting this complaint.
  3. The Respondents shall pay to the Complainant $34,196.44 for back pay plus pre-judgment interest of $3,419.64.
  4. The Respondent shall pay to the Complainant statutory post-judgment interest at the rate of 10% per annum from the date of this decision.

SO ORDERED this ____ day of February, 2000 at Hartford, Connecticut.

______________________________

Hon. Donna Maria Wilkerson
Presiding Human Rights Referee

c.: C. Joan Parker, Assistant Commission II CCHRO
21 Grand St.
Hartford, CT 06106

Luciano Mase, President
F&L Inc.
111 Bank St.
New London, CT 06320

Luciano Mase, President
516 Boston Post Road
Westbrook, CT 06498

Diana Lee Brelig
275 Essex Road
Westbrook, CT 06498

Ann Galer-Pasternak
CHRO
21 Grand Street, 3rd Floor
Hartford, CT 06106

Raymond Pech
Deputy Commission Counsel
CHRO
21 Grand Street, 4th Floor
Hartford, CT 06106