Ramseur v. Colonial Chimney and Masonry, Inc. - 0440130, Final Decision
CHRO No. 0440130
Fed No. 16aa400024
Commission on Human Rights and Opportunities ex rel. :
Colonial Chimney & Masonry, Inc.
November 28, 2005
On September 19, 2003, Cecil Ramseur ("complainant"), now of Westerly, Rhode Island, filed an affidavit of illegal discriminatory practice ("complaint") with the Commission on Human Rights and Opportunities ("commission"). In his complaint, he alleged that Colonial Chimney & Masonry, Inc. ("respondent"), of Stonington, Connecticut, his former employer, illegally discriminated against him in violation of the federal Age Discrimination in Employment Act ("ADEA") and General Statutes § 46a-60(a)(1) when it terminated his employment because of his age.
For the reasons stated herein, the respondent is found to have illegally discriminated against the complainant and the complainant is awarded relief as set forth herein.
I. PROCEDURAL HISTORY
Filed on September 19, 2003, the complaint was retained for investigation by the commission after its merit assessment review. On June 29, 2005, the investigator issued his finding that, after preliminary investigation, there was reasonable cause to believe that an unfair practice had been committed as alleged in the complaint and certified the complaint to the attorney general and the commission's executive director. Thereafter, the undersigned was appointed as the presiding human rights referee in this case. The parties were notified that a hearing conference would be held on July 28, 2005.
At that conference, the commission and the complainant appeared; however, the respondent did not appear and also failed to file an answer as required by General Statutes § 46a-84(f) and section 46a-54-86a of the Regulations of Connecticut State Agencies. On August 19, 2005, the commission filed and served a motion to default the respondent for its failure to appear and failure to file an answer. The respondent did not file a response to the motion. The commission's motion was granted on September 1, 2005 and a hearing in damages scheduled for September 29, 2005 pursuant to § 46a-84(f) and section 46a-54-88a of the Regulations of Connecticut State Agencies. Notice of the default and hearing in damages was sent by facsimile to the commission and by certified mail, return receipt requested, to the complainant and the respondent. The respondent's certified mail went unclaimed. The complainant and the commission appeared at the hearing in damages; the respondent did not appear.
II. FINDINGS OF FACT
References to testimony are to the transcript page ("Tr.") where the testimony is found. The commission was the sole party to introduce exhibits. Its exhibits are denoted as "CHRO Ex." followed by the exhibit number. The record also includes "all petitions, pleadings, motions and intermediate rulings …." General Statutes § 4-177(d). Allegations in the complaint that were not answered by the respondent are deemed admitted without the need for further proof. Regs., Conn. State Agencies § 46a-54-86a(b).
Based upon the complaint, exhibits, and testimony, the following facts relevant to this decision are found ("FF"):
1. Notice of the entry of default with the date, time and place of the hearing in damages ("notice") was sent to the respondent by certified mail, return receipt requested.
2. The United States Postal Service made three attempts to deliver the notice to the respondent. The respondent failed to claim the notice.
3. The respondent employs more than three but fewer than 20 people. (Tr. 49-50.)
4. Jason Booker ("Booker") is the respondent's president. (Tr. 9; Complaint.)
5. The respondent hired the complainant on or about July 5, 2003. (Complaint.)
6. The respondent terminated the complainant's employment on August 25, 2005. (Tr. 9; Complaint.)
7. In terminating the complainant, Booker told the complainant that he was too old for the job. (Complaint.)
8. At the time of his termination, the complainant was 50 years old. (Complaint.)
9. During his employment with the respondent, the complainant's job performance and attendance were excellent. (Complaint.)
10. At the time of his termination, the complainant was earning $11.00 per hour and working an average of 40 hours per week for a total income of $440.00 per week. (Tr. 6.)
11. The complainant does not seek reinstatement to his former position with the respondent. (Tr. 50-51.)
12. At the time of the hearing in damages, the complainant was earning $12.00 per hour. (Tr. 42.)
13. Between the date of his discharge from employment, August 25, 2003, and the date of the hearing in damages, September 29, 2005, the complainant would have earned $47,960.00 from the respondent, at the rate of $440 per week for 109 weeks.
14. Between the date of his discharge from employment and the date of the hearing in damages, the complainant mitigated his damages in the amount of $12,424.01 through receipt of unemployment compensation from the State of Connecticut; self-employment; and employment at Special Operations, Learn, Inc., Innovative Building, Inc., and Stonington Behavioral, Inc. as follows:
(a) The complainant received $2,352.00 in unemployment compensation benefits from the State of Connecticut. (Tr. 13, Commission's calculation of damages.)
(b) The complainant had income of $532.00 in earnings from Special Operations, Inc. as a security officer. (Tr. 17, 31, 46; CHRO Ex. 3.)
(c) The complainant had income of $2,355.69 in earnings from Learn, Inc. (Tr. 32, 46; CHRO Exs. 2, 3.)
(d) The complainant had income of $534.00 in earnings from Innovative Building, Inc. (Tr. 46; CHRO Ex. 3.)
(e) The complainant had income of $3,123.32 in earnings from Stonington Behavioral, Inc. (Tr. 46; CHRO Ex. 3.)
(f) The complainant had net earnings through self-employment, after the deduction of reasonable and necessary expenses related to the purchase of materials and travel, of $3527.00 (Tr. 11-13; Commission's calculation of damages.)
A. Service of notice
As a procedural matter, it should be noted that the respondent's failure to claim the certified mail containing notice of the default and hearing in damages does not deprive the commission of its ability to proceed with the hearing in damages. Rogers v. Commission on Human Rights and Opportunities, 195 Conn. 543 (1985). According to the U. S. Postal Service's notations on the returned unclaimed mail, it made three unsuccessful attempts to deliver the notice to the respondent. The attempts were unsuccessful because the respondent failed to claim the mail. "The [respondent's] own inaction in response to actual notice [of the attempted deliveries] cannot be made the basis of a claim that he was not afforded due process." Id., 548.
B. Section 46a-60(a) claim
General Statutes § 46a-60(a) provides in relevant part that "It shall be a discriminatory practice in violation of this section: (1) For an employer, by the employer or the employer's agent, except in the case of a bona fide occupational qualification or need, to refuse to hire or employ or to bar or to discharge from employment any individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment because of the individual's race, color, religious creed, age …."
Held pursuant to the entry of an order of default, this hearing in damages is limited to determining the relief necessary to eliminate the discriminatory practice and make the complainant whole. § 46a-84(f); Regs., Conn. State Agencies § 46a-54-78a(b)(5). The presiding officer is authorized to award relief including (1) retroactive and prospective monetary relief (back pay and front pay), State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989); (2) prejudgment and postjudgment compounded interest on the award of front and back pay, Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 604 (February 28, 1994); and (3) ordering the respondent to pay to the commission the amount of unemployment compensation or welfare assistance paid to the complainant, which the commission shall then transfer to the appropriate state or local agency. General Statutes § 46a-86(b).
In the present case, the entry of the order of default, as well as the uncontradicted testimony by the complainant that Booker told him he was being terminated because of his age, establish the respondent's liability for terminating the complainant's employment because of his age in violation of § 46a-60(a)(1). (FF 1,7.)
With respect to the relief necessary to make the complainant whole, the complainant and the commission seek the following: emotional distress damages, back pay, overtime, prejudgment and postjudgment interest, an order requiring the respondent to attend intensive and on-going diversity training courses, and an order requiring the respondent to post Commission posters at all of its facilities. (Commission's calculation of damages.)
In October 2004, the respondent offered to reinstate the complainant. Although an offer of reinstatement can in some situations terminate the accrual of damages, in this case the complainant reasonably declined reinstatement. Based on the credible testimony of the complainant (Tr. 34-35, 44, 50-55), I find that the animosity of Booker toward the complainant based on his age, and unrelated to the filing of this complaint, reasonable excuses the complainant's decision not to accept reinstatement. Therefore, the complainant is awarded back pay for the period from August 25, 2003, the date of his termination, to September 29, 2005, the date of the hearing in damages, in the amount of $35,535.99 based on the earnings the complainant would have received had he remained employed by the respondent ($47,960.00), less the amount he earned through reasonable attempts at mitigation ($12,424.01)(FF 10, 13, 14.). The date of the hearing in damages, rather than the date of judgment, is used as the benchmark in this case because at the time of the hearing the complainant was employed and his current wages are comparable to what he would have been paid had he remained employed with the respondent. (FF 10, 12.)
The complainant is not awarded front pay as his current wages are comparable to what he would have been paid had he remained employed with the respondent. (FF 10, 12.)
The complainant is not awarded overtime because of his brief employment with the respondent and the inconsistency of his overtime during that time. (Tr. 6-8.) Under such conditions, an award of overtime would be speculative.
The complainant is entitled to prejudgment and postjudgment interest on the award of back pay at the rate of 10% per annum, compounded annually, from August 25, 2003 until the complainant receives full payment.
The respondent is legally obligated to pay to the commission the amount of unemployment compensation paid to the complainant totaling $2,352.00.
C. Section 46a-58(a) and ADEA claim
The complainant alleged that the respondent violated the ADEA, thereby violating General Statutes § 46a-58(a), and sought emotional distress damages pursuant to §§ 46a-58(a) and 46a-86(c). However, the commission does not have jurisdiction of this claim under § 46a-58(a) for two reasons. First, § 46a-58(a) does not enumerate age as a protected class. Second, the respondent is not subject to the ADEA because it employs fewer than 20 people. (FF 3.) Therefore, the complainant is not awarded emotional distress damages.
IV. CONCLUSION OF LAW
1. The respondent was given legally sufficient notice of the Notice of Hearing in Damages Pursuant to an Order of Default.
2. The entry of default established the respondent's liability for violation of § 46a-60(a)(1).
3. The complainant established by a preponderance of the evidence that the respondent illegally discriminated against him on the basis of his age in violation of § 46a-60(a)(1).
4. As provided by law, the complainant is entitled to the relief necessary to make him whole. Said relief includes back pay, prejudgment interest and postjudgment interest.
5. As provided by law, the respondent must reimburse the State of Connecticut for unemployment compensation paid to the complainant.
6. The commission does not have jurisdiction over the ADEA claim.
7. Because the commission does not have jurisdiction over the ADEA claim, the complainant is not entitled to emotional distress damages.
V. ORDER OF RELIEF
1. The respondent shall pay the complainant the sum of $35,535.99 as back pay for the period of August 25, 2003 to September 29, 2005.
2. The respondent shall pay the complainant prejudgment and postjudgment interest at the rate of 10% per annum, compounded annually, on the back pay award of $35,535.99, and any outstanding balance, from August 25, 2003 until paid in full.
3. Pursuant to § 46a-86(b), the respondent shall pay to the commission $2,352.00, representing the unemployment compensation amount paid to the complainant. The commission shall then transfer such amount to the appropriate state agency.
4. The respondent shall cease and desist from discriminating against present and future employees and applicants for employment on the basis of age and all other protected bases.
5. Pursuant to General Statutes § 46a-60(a)(4), the respondent shall not engage in or allow any of its employees to engage in any conduct against the complainant or any party to or participant in these proceedings.
6. Should prospective employers seeking references concerning the complainant ever contact it, the respondent shall provide only the dates of said employment, the last position 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.
7. Pursuant to General Statutes § 46a-54(13), 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.
8. 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.
9. For a period from December 1, 2005 to November 30, 2007, the respondent shall provide the commission with the names and ages of every applicant for employment; the names and ages of every person it hires; and the names and ages of every employee who, voluntarily or involuntarily, leaves its employment.
10. Within 90 days of the issuance of this decision, the respondent shall, at its expense, have its employees (including officers and management) undergo fifteen hours of diversity training by a service provider approved by the commission. The service provider shall notify the commission of those who attended and completed the training.
Hon. Jon P. FitzGerald
Presiding Human Rights Referee
Mr. Cecil Ramseur
Colonial Chimney & Masonry, Inc.
Cheryl A. Sharp, Esq.
Connecticut Department of Labor