Tavares v. Sam's Club - 9760092   Amended Final Decision

Commission on Human Rights and Opportunities, ex rel. Cori Tavares, Complainant

v.

A Public Hearing on the above-captioned matter was held on October 26, 1999 at

9:30 a.m. Respondent and its counsel appeared, along with their two witnesses. Commission counsel appeared one-half hour after the Public Hearing was scheduled to commence. Neither Complainant nor her counsel appeared at the Public Hearing and thus, no evidence was presented in support of the Complainant’s case. No parties or counsel had requested permission to be excused from the Public Hearing and, hence, no one was excused from appearing at the Public Hearing. Therefore, I dismissed this matter on the record and granted Respondent’s oral motion for sanctions to be imposed on the Complainant’s counsel and Complainant. This decision merely summarizes my oral decision made on the record.

The Complainant is Cori Tavares. She resides at 57 Ashford St., West Haven, CT 06516. The Commission on Human Rights and Opportunities is located at 21 Grand St., Hartford, CT 06106. The Respondent is Sam’s Club, Wal-Mart Stores Inc. located at 2 Boston Post Rd., Orange, CT 06477.

On September 10, 1996, Cori Tavares ("Complainant") filed a complaint with the Commission on Human Rights and Opportunities ("the commission") alleging that her employer, Sam’s Club ("Respondent"), discriminated against her in terms and conditions of employment in that she was not promoted and was constructively discharged based on her race, African American, and color, brown, in violation of General Statutes § 46a-60 (a) (1), Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C 2000e, and the Civil Rights Act of 1991 as protected by 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 to public hearing on July 14, 1997, in accordance with General Statutes §46a-84(a). All statutory and procedural prerequisites necessary for the holding of the public hearing have been satisfied and this complaint is properly before the human rights referee for decision.

1. On May 4, 1999, all parties were ordered to appear at the Public Hearing scheduled for October 26, 27 and 28, 1999 and to appear at a pre-hearing conference on September 16, 1999. Complainant’s counsel also was ordered to file a witness list with the Office of Public Hearings before the date of the pre-hearing conference.
2. On September 15, 1999, Complainant’s counsel filed a motion to continue the pre-hearing conference. The motion did not comply with the order of May 4, 1999 and the procedural guidelines of the Office of Public Hearings because it did not provide three alternative dates to reschedule the pre-hearing conference.

   Notwithstanding the non-compliance, the motion was granted and a notice was sent to the Complainant’s counsel requesting that he provide three alternative dates to reschedule the pre-hearing conference.

3. On October 5, 1999, the Office of Public Hearing still had not received a response from Complainant’s counsel providing three alternative dates to reschedule the pre-hearing conference. Therefore, the undersigned Presiding Referee rescheduled the pre-hearing conference for October 15, 1999 (eleven days before the Public Hearing).
4. On October 15, 1999, a pre-hearing conference was held via telephone at the request of Respondent’s counsel in which all parties participated. Complainant’s counsel still had not filed a witness list with the Office of Public Hearings as previously ordered. Complainant’s counsel made an oral motion to continue the Public Hearing due to a scheduling conflict. At the request of the undersigned Presiding Referee, the Complainant’s counsel faxed to the Office of Public Hearings a written motion to continue and a letter dated January 25, 1999, which included the names of witnesses. Respondent’s counsel faxed an objection to the motion to continue. The motion to continue was denied.
5. On October 20, 1999, Complainant’s counsel filed a motion to stay the proceedings. That motion also was denied.
6. On October 22, 1999, Complainant’s counsel filed a motion for recusal of the Presiding Referee. That motion was denied.
7. On October 25, 1999, Complainant’s counsel filed via facsimile with the Office of Public Hearings a copy of a Notice of Right to Sue ("Notice") from the Equal Employment Opportunity Commission. The Office of Public Hearings contacted the Complainant’s counsel and inquired as to the reason he was filing said Notice and whether he would like a Withdrawal of Complaint form faxed to him in order to fill it out and file it with Office of Public Hearings. Complainant’s counsel adamantly stated "no" and that he did not intend to withdraw the complaint and planned to appear the next day, October 26, 1999 at the Public Hearing.
8. On October 25, 1999 at 4:00 p.m., the Office of Public Hearings contacted the court reporter and confirmed services for the next day at 9:30 a.m.
9. On October 25, 1999, Respondent’s counsel also received the Notice and contacted Complainant’s counsel to inquire as to whether he was withdrawing the complaint. Complainant’s counsel informed Respondent’s counsel that he was not withdrawing the complaint and would be at the Public Hearing on October 26, 1999 at 9:30 a.m.
10. Respondent’s counsel relied on said representation by Complainant’s counsel and began travel on October 26, 1999 at 6:45 a.m. from New York City to appear timely at the Public Hearing at 9:30 a.m.
11. On October 26, 1999 at 6:50 a.m., Complainant’s counsel faxed to the Office of Public Hearings and all parties a letter stating that "[t]he above-captioned matter is hereby withdrawn from the CHRO". The letter was not in the form of a motion and therefore was not a request to withdraw the complaint nor did it include a signed representation by Complainant that she was knowingly and voluntarily withdrawing the complaint.
12. The Office of Public Hearings does not begin filing documents until 8:30 a.m. and no one was in Respondent’s counsel’s office until 9:00 a.m. to receive the letter from Complainant’s counsel.
13. Complainant’s counsel made no attempts to verify that his failure to appear was acceptable or approved by the undersigned Presiding Referee.
14. Complainant’s counsel decided not to appear at the Public Hearing without consideration or respect for the public hearing process or the other parties involved. Complainant’s counsel caused the Respondent’s counsel to incur unnecessary costs by having to travel from New York and appear before this tribunal, and caused the Office of Public Hearings to incur the cost of the court reporter for a case that Complainant’s counsel was not pursuing.
15. Respondent’s attorneys fees are three hundred dollars an hour ($300.00), with a discount given to Sam’s Club, Wal-Mart Stores Inc. The court reporter fees are sixty-five dollars ($65.00) a day.

The complaint is hereby DISMISSED and sanctions are imposed on the Complainant’s counsel in the amount of one thousand five hundred dollars ($1,500.00) to be paid to the Respondent’s counsel representing the cost incurred of approximately eight hours at one hundred eighty-seven dollars and fifty cents ($187.50) an hour for travel to and from the Public Hearing including time spent at the Public Hearing. Complainant’s counsel shall pay sixty-five dollars ($65.00) to the Office of Public Hearings (check made payable to Treasurer State of Connecticut) for incurring the cost of the court reporter for one day at the Public Hearing.

SO ORDERED this ____ day of November, 1999 at Hartford, Connecticut.

______________________________

Hon. Donna Maria Wilkerson

Presiding Human Rights Referee

c.: Attorney Regina M. Hopkins
Assistant Commission Counsel
Commission on Human Rights and Opportunities
21 Grand St.
Hartford, CT 06106

Attorney Caleb Pilgrim
1404 Walley Ave., 2^nd Floor
New Haven, CT 06515

Cori Tavares
57 Ashford St.
West Haven, CT 06516

Attorney Barry Asen
Attorney Gregory B. Reilly
Attorney Patricia Le Goff