0220220, Hansen v. City of Bridgeport, Memo of Decision
CHRO NO. 0020220
Commission on Human Rights and Opportunities ex rel. Hansen, Joan B. Complainant
W.E.T. National Relocation Services, and the City of Bridgeport Respondents
November 14, 2001
MEMORANDUM OF DECISION
I Preliminary Statement
The Public Hearing ("Hearing") on the above-captioned matter was held on October 16, 2001, pursuant to a Conference and Summary Order dated May 30, 2001. Michael Agress, Assistant Commission Counsel II, appeared on behalf of the Commission on Human Rights and Opportunities ("Commission"). Joan B. Hansen ("Complainant") appeared pro se. The Respondent, W.E.T. National Relocation Services ("Respondent") did not appear. The issues addressed in this decision are: 1) whether the Respondent wrongfully discriminated against the Complainant when it terminated her employment, and if so, 2) whether the Complainant is entitled to any damages or other relief.
For the reasons set forth below, judgment is entered in favor of the Complainant. Damages are awarded in the amount of $14,493.00 for back pay, plus 10% prejudgment interest of $1,449.00 and postjudgment interest at 10% per annum, to be paid on the delinquent payment with other relief as set forth herein.
The Complainant, Joan B. Hansen resides at 118 Old Stratfield Road, Fairfield, Conn. 06430. The Commission is located at 21 Grand St., 4th Floor, Hartford, CT 06106. The Respondent, W.E.T. National Relocation Services, is located at 6620 Eli Whitney Drive, Columbia, MD 21046 and 9412 Lowtide Court, Las Vegas, NV 89117.
III Procedural History
On December 23, 1999, Joan B. Hansen filed a complaint affidavit ("complaint") with the Commission alleging that W.E.T. National Relocation Services and the City of Bridgeport, discriminated against her in the terms and conditions of her employment and terminated her employment because of her age, 66, in violation of General Statutes § 46a-60(a)(1); and the Age Discrimination in Employment Act ("ADEA") of 1967, 29 U.S.C. 621-634 as enforced through General Statutes § 46a-58(a). The Commission investigated the allegations of the complaint, 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 April 16, 2001, in accordance with General Statutes § 46a-84(a). On May 9, 2001, the Office of Public Hearings ("OPH") sent to all parties of record the Original Notice of Public Hearing along with a copy of the complaint. The Respondent filed an answer to the complaint on June 12, 2001. On September 28, 2001, the City of Bridgeport filed a motion to dismiss the complaint against it. There being no objection, the motion was granted on October 12, 2001. The Hearing was held on October 16, 2001. All statutory and procedural prerequisites to the Hearing were satisfied and this complaint is properly before the undersigned Human Rights Referee for decision. The jurisdictional matters regarding this complaint were satisfied as the record herein establishes. Pursuant to General Statutes § 4-180, the record closed on October 17, 2001. No briefs were scheduled to be filed.
IV Findings of Fact
- The Complainant was born on July 3, 1933 and was sixty-six years of age at the time of the filing of the complaint. See Complaint and Transcript page/s ("Tr.") 6.
- The Complainant is over 40 years of age. Id.
- The Respondent is a consultant who contracted with the City of Bridgeport to serve as a relocation coordinator for the Steel Point Redevelopment Project and to manage the relocation duties as set forth in the agreement. CHRO Ex. 25 and Tr. 4.
- The Complainant began employment with the Respondent approximately on July 24, 1999 as a relocation coordinator and had been employed approximately three months at the time of the filing of the complaint. Tr. 4.
- There were six to seven other relocation coordinators employed with the Respondent who were all younger than the Complainant. Tr. 6-7.
- The Respondent employed less than twenty employees nationwide. See Complaint, paragraph 1 and Answer, paragraph 1.
- On October 29, 1999, the Respondent terminated the Complainant’s employment via a letter, which gave no reason for the termination. CHRO Ex. 2 and Tr. 11-13. Subsequently, the Complainant spoke with Cassaundra Williams ("Williams"), the Respondent’s owner, who stated that the reason was because she didn’t relocate a certain number of clients. See Answer, paragraph 4 and Complaint, paragraph 3.
- Williams called the Complainant "Estelle Getty", who portrayed an 82 year old character on a television show entitled Golden Girls which depicted Estelle Getty living with her daughter and her daughter’s friends. The Respondent admitted to this. Tr. 7-9 and Answer, paragraph 4.
- Williams’ son also ridiculed the Complainant by making comments about her age and constantly questioning her ability to do the work (i.e. "can you handle it, Joan; must be tough for someone your age"). Tr.7.
- The Complainant never received any criticism or oral or written warnings regarding her work performance. Tr.13.
- The Respondent periodically wrote on the Complainant’s pay stub envelopes that Complainant was doing a good job. Tr.14-15.
- The duties for the relocation coordinator position were: to assist with finding homes for residents displaced by the Steel Point Redevelopment Project; to communicate with residents via telephone or in person; to communicate with providers of housing; to process claim forms for payment; to assist with mail-outs; answer incoming calls; and to perform clerical functions. CHRO Exhibit 1 and Tr.17-18.
- The Complainant was qualified for the position and performed her duties satisfactorily. She possessed prior clerical work experience; she possessed communication skills and; she previously worked for NASE as an insurance agent communicating with customers selling health insurance and using the telephone. She also worked at Singer Corporation in the mailroom, handling mail. Tr. 21-22.
- The other relocation coordinators remained employed with the Respondent after the Complainant was terminated and some even received permanent positions. Tr. 24-25 and 31-32.
- The Respondent paid the Complainant $12.00 an hour for an eight-hour day. She received no benefits, paid sick time, paid holidays or vacation. Tr. 25.
- The contract between the Respondent and the City of Bridgeport lasted until September 30, 2000. CHRO Exhibit 25 and Tr. 50.
- In November 1999, the Complainant obtained part-time work with International Coding until the end of December 1999 and was paid $760.00. CHRO Exhibit 22 and Tr. 32-34.
- The Complainant next worked at JV precision Machine Co. from February 28, 2000 until March 16, 2000 and was paid $915.00. CHRO Ex. 3, 23 and Tr. 35-36.
- The Complainant next worked part-time at Royal Flush from March 27, 2000 until October 27, 2000 and was paid $6,432.25. The amount paid to the Complainant through September 30, 2000 was $5,720.00. Prayer for Relief; CHRO Ex. 4 and Tr. 37-38.
- The Complainant sought full-time employment by faxing resumes to various companies. CHRO Ex. 24 and Tr.39.
- The Complainant is seeking damages from October 29, 1999 until the contract between the City of Bridgeport and the Respondent expired on September 30, 2000. CHRO Ex 25 and Tr.48.
- The Complainant would have been paid $21,888.00 had she not been terminated. She was paid $7,395.00 by other employers in mitigation of her damages. Prayer for Relief; CHRO Ex. 3, 4, 22, and 23.
The issue is whether the Respondent violated General Statutes § 46a-60(a)(1) and the ADEA, when it terminated the Complainant’s employment. First, the Complainant’s claim of age discrimination pursuant to the ADEA, 29 U.S.C. 621-634 is dismissed. Pursuant to 29 U.S.C. 630, "the term employer means a person engaged in an industry affecting commerce who has twenty or more employees for each working day…" The Respondent did not employ twenty or more employees and therefore, the ADEA is not applicable. FF at 6.
It is well established that Connecticut’s anti-discrimination statutes are coextensive with the federal law. In that regard, reference will be made to the prevailing federal case law that is used by our state courts. See State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn 464 (1989). "Connecticut has adopted the McDonnell Douglas-Burdine model for analyzing employment discrimination claims." Delgado v. Achieve Global F/K/A Learning International, Inc. 2000 WL 1861853*5; See also Levy v. Commission on Human Rights & Opportunities, 236 Conn. 96, 107 (1996); Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-56(1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). The McDonnell Douglas-Burdine model requires that a plaintiff first establish a prima facie case by showing that 1) she belongs to a protected class; 2) she was qualified for the position in question; 3) despite her qualifications, she suffered an adverse employment decision; and 4) the decision was made under circumstances that give rise to an inference of discrimination. Levy v. Commission on Human Rights & Opportunities, supra, 236 Conn. 107; See also Denault v. Connecticut General Life Ins. Co., Superior court, judicial district of Ansonia/Milford at Milford, Docket No. 050418 (June 29, 1999) (Corradino, J.)(noting that the Second Circuit Court of Appeals uses this variation of the prima facie test in discriminatory discharge cases).
"Circumstances contributing to a permissible inference of discriminatory intent may include…the employer’s criticism of the plaintiff’s performance in ethnically degrading terms… or its invidious comments about others in the employee’s protected group…or the more favorable treatment of employees not in the protected group… or the sequence of events leading to the plaintiff’s discharge…[or] the timing of the discharge…"Delgado, supra, 2000 WL 1861853 *6 citing Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir.1994).
The Complainant has the burden of proof to present evidence of a prima facie case of discrimination and once that is satisfied, the Respondent has the burden of production to proffer a legitimate nondiscriminatory reason and, if the Respondent satisfies that burden, then the Complainant has a second burden to present evidence that the proffered legitimate reason/s "were not the true reasons, but were a pretext for discrimination. That is, the plaintiff may attempt to establish that he was the victim of intentional discrimination by showing that the employer’s proffered explanation is unworthy of credence." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000) citing Texas Dept. of Community Affairs v. Burdine, supra, 450 U.S 252-253. "A plaintiff’s prima facie case [as defined in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 36 L.Ed. 2d 668, and subsequent decisions], combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000).
The Complainant is over the age of forty and she was 66 years of age at the time of the alleged discriminatory act, thus in a protected class. Finding of Fact/s ("FF") at 1. The Complainant worked as a relocation coordinator. FF at 4. To be qualified, the Complainant need only meet the minimum qualifications for the job to establish a prima facie case. Owens v. New York City Housing, 934 F.2d 405 (2d Cir. 1991) citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). The Complainant was qualified for the position of relocation coordinator and was performing her duties in a satisfactory manner. FF at 10, 11 and 13. She possessed the minimum qualifications that were necessary to qualify her for the position of relocation coordinator because she had prior clerical work experience; she had communication skills; and she previously worked for NASE as an insurance agent communicating with customers, selling health insurance and using the telephone. FF at 13. She also worked at Singer Corporation in the mailroom, handling mail. Id.
Despite being qualified, on October 29, 1999, the Respondent terminated the Complainant’s employment, and at the time of termination, provided no reason for the termination. FF at 7. Other relocation coordinators who were younger than the Complainant remained employed with the Respondent and eventually received permanent positions. FF at 5 and 14. The Respondent’s owner, Williams called the Complainant, "Estelle Getty" who is a television character, 82 years of age. FF at 8. Williams admitted to referring to the Complainant as Estelle Getty. Id. and See Answer, paragraph 4. William’s stated in the answer that she considered this an affectionate way of referring to the Complainant. Answer, paragraph 4. Without additional evidence by way of testimony from the Respondent, I do not find the Respondent credible and therefore, do not believe that the reference was intended to be endearing. Williams’ son made comments to the Complainant regarding how much work she could handle due to her age. FF at 9. These circumstances surrounding the termination give rise to an inference of discrimination. Thus, the Complainant has met her burden of proving a prima facie case.
Next, the Respondent must put forth a legitimate nondiscriminatory reason for terminating the Complainant. On June 12, 2001, the Respondent filed an answer in which it denied that the Complainant was terminated due to her age. Answer, paragraph 4. It stated that the Complainant failed to move or relocate a certain number of clients. Id. and FF at 7. On October 17, 2001, the Respondent filed correspondence with the OPH addressed to the undersigned presiding referee. The correspondence stated new information, which was not submitted at the Hearing, and did not mention the Respondent’s proffered reason for the termination. It did state again that William’s believed her referral to the Complainant as Estelle Getty was an affectionate reference. I am not able to consider the new information or determine if any of the information in the correspondence was credible because it was not subject to cross-examination. Next, the Complainant presented evidence to show that the Respondent’s proffered reason for the termination (that she didn’t relocate a certain number of people) was false. She testified that she never received negative criticism regarding her work performance and that she received notes on her pay stubs stating that she was doing a good job. FF at 10-11. The Respondent did not provide evidence to rebut the Complainant’s testimony.
For all of the foregoing reasons, I find that the Complainant is credible, has satisfied her burden of proving a prima facie case and rebutting the Respondent’s proffered reason. Therefore, Respondent is liable pursuant to state law for age discrimination against the Complainant.
VI Damages and Relief
Pursuant to General Statutes § 46a-86(b), the Presiding Referee has the authority "to order the hiring or reinstatement of employees, with or without back pay." The Connecticut Supreme Court has further stated that "the victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is he has a right to be restored to the position he would have attained absent the unlawful discrimination…such an order for relief may include retroactive and prospective monetary relief…where prohibited discrimination is involved the hearing officer has not merely the power but the duty to render a decree which will, so far as possible, eliminate the discriminatory effects of the past as well as bar like discrimination in the future." State v. Commission on Human Rights and Opportunities, supra, 211 Conn. 478; Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 10 Conn. L. Rpt No. 19, 599 (Feb. 28, 1994)(Superior Court, J.D. of Hartford/New Britain, CV92-520590). Consistent with federal law, the goal of the state courts and this tribunal is to make the complainant whole and put her in the position she would have been in absent the discriminatory conduct. Landgraf v. USI Film Prods., 511 U.S. 244, 254 (1994).
General Statutes § 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. Silhouette Optical Limited v. Commission on Human Rights and Opportunities, supra, 10 Conn. L.Rpt No. 19, 599.
The Commission has requested the amount of $14,493.00 on behalf of the Complainant for total back pay damages. See Prayer for Relief. The Complainant worked as a relocation coordinator for only the time of the contract between the Respondent and the City of Bridgeport, which lasted until September 30, 2000. FF at 4 and 16. The Complainant was paid $12.00 an hour for an eight-hour day. FF at 15. The Complainant is requesting back pay damages from the time she was terminated until the last day of the contract, which she would have worked absent the discrimination. The time frame is November 1, 1999 until September 30, 2000. FF at 21. The total of days calculated for this time frame is 228 days at $96.00 per day ($12.00 an hour multiplied by an eight-hour day). See Prayer for Relief. The total amount of back pay is $21,888.00. Id.
The amount of the back pay award must be reduced by the amount that the Complainant has earned through reasonable mitigation. See General Statutes § 46a-86(b). Commission on Human Rights and Opportunities, ex rel., Brelig v. F&L Inc., d/b/a Luciano’s Boathouse Restaurant, CHRO No. 9540683, at 7, Feb. 2, 2000 (Referee Wilkerson). The Respondent has the burden to prove that the Complainant failed to mitigate her damages. Ann Howard’s Apricot Restaurant v. CHRO, supra, 237 Conn. 229. It is in the discretion of the Presiding Referee to determine whether the Complainant took reasonable efforts to mitigate. See Ann Howard’s Apricot Restaurant v. CHRO, 237 Conn. 209, citing Vespoli v. Pagliarulo, 212 Conn. 1, 3, 560 A.2d 980 (1989). No evidence was presented by the Respondent in opposition to the Commission’s claim for damages or the Complainant’s amount of mitigation and efforts to mitigate.
The Complainant testified that she obtained three jobs after being terminated by the Respondent. She worked at International Coating and was paid a total of $760.00. FF at 17. She then worked at JV Precision and was paid $915.00. FF at 18. Lastly, she worked at Royal Flush and was paid $5,720.00 from March 27, 2000 until September 30, 2000. FF at 19. The Complainant also testified that she diligently sought work by contacting a number of prospective employers and sending her resume to them via facsimile. FF at 20 and CHRO Ex. 24. Thus, I find that the Complainant has mitigated her damages in the amount of $7,395.00. Prayer for Relief. The total amount of back pay damages after subtracting mitigation amounts to $14,493.00. Id.
The Respondent violated General Statutes § 46a-60(a)(1), as enforced through General Statutes 46a-58(a) by terminating the Complainant’s employment because of her age. The Complainant is entitled to an award of back pay, with 10% interest, prejudgment and postjudgment along with other relief as ordered hereinafter.
VIII Orders of Relief
Dated this _______ day of November 2001 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut.
The Honorable Donna Maria Wilkerson
Presiding Human Rights Referee
C: Joan B. Hansen
Michael S. Agress, Assistant Commission Counsel II
Atty. Raymond Pech, Deputy Commission Counsel