Elizabeth Downes v. zUniversity.com, Inc. - Final Decision
CHRO No. 0120366
Fed. No. 16aa12200
Commission on Human Rights & Opportunities ex. rel. Elizabeth Downes
September 12, 2003
The pro se Complainant is Elizabeth Downes and she resides at 2179 Hill Avenue, Altadena, California 91001. Attorney Raymond Pech represented the Commission which is located at 21 Grand Street, Hartford, Connecticut 06106. The Respondent is zUniversity.com, Inc. The Respondent's agent for service is Attorney Judy Ferris, Gregory & Hoenemeyer, 660 Steamboat Road, Greenwich, CT 06830.
II. Procedural History
The Complainant filed her complaint with the Commission (CHRO Exhibit 1) on April 16, 2001. Her allegations included claims that the respondent's termination of her employment was the result of her sex, her familial status and her pregnancy in violation of General Statutes § 46a-60 (a)(1), § 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. The Respondent participated in some of the early post-certification proceedings. Thereafter, the Commission moved for an order of default, which was granted by the undersigned on February 19, 2003.
The Commission filed a motion dated May 23, 2003 requesting that the Complainant participate in the hearing in damages by telephone. This motion was granted. The hearing in damages was held on June 12, 2003. Respondent did not appear at the hearing. Complainant participated telephonically from her home in California. The Respondent received notice that this hearing would proceed on June 12, 2003.
Ms. Downes' testimony was consistent with the information set forth in Exhibit 5, as well as with the allegations set forth in the complaint, and in the Respondent's answer to the complaint and other documents supplied to the Commission by the Respondent (CHRO Exhibits 2, 3 and 4) (Commission's Brief 1 and 2).
III. Findings of Fact
References to testimony are to the transcript page where the testimony is found. References to exhibits are by party designation and number. Based upon a review of the pleadings, the exhibits and the transcript, the following facts relevant to this decision are found:
1. The Complainant was hired as a university manager by the Respondent on
October 8, 1999. (TR 20, 29)
2. When the Complainant was hired, a senior vice president of the Respondent Greg Nedwag, told her that she would receive a performance appraisal at the end of one year and she would be eligible, if her performance rating was favorable, for both a salary increase as well as a bonus. (TR 28, 29, C-5 paragraph 6)
3. Complainant's salary for her first year with the respondent was $50,000.00. (TR 32, C-5 paragraph 4, Commission's Brief 3, 4)
4. Complainant received the promised performance evaluation during October of 2000. She received a positive performance evaluation and she was told she would be receiving both a salary increase and a $10,000.00 bonus. (TR 29, C-5 paragraph 6)
5. Complainant was given a salary increase of $1,250.00 on January 1, 2001 and, therefore, at the time of her termination her annual salary was $51,250.00. (TR 21, 32, C-5 paragraph 5, Commission's Brief 3, 4)
6. Complainant was fired by the Respondent on January 12, 2001.(TR 15, 20, C-5 paragraph 3)
7. The Complainant was never paid the promised $10,000.00 bonus before her termination by the Respondent. (TR 29, 30, C-5 paragraph 6, Commission Brief 3, 4)
8. Within a week of her termination by the Respondent, the Complainant received a document, in the mail entitled "Separation Agreement and General Release of Claims". (TR 25, 26, C-3, C-5 paragraph 6)
9. Some of the terms of this agreement include the following:
· A lump sum severance of three weeks pay ($2,956.73)
· A bonus of $10,000.00
· Pay for all accrued and unused vacation time. (TR 26, 27, 34, C-3 paragraph 1, C-5 paragraph 6)
10. The Complainant never signed the severance agreement. (TR 27, 28,
31, C-5 paragraph 6, Commission's Brief 3,4)
11. The Complainant collected unemployment from the state of California,
where she resides, from January 14, 2001 until July 21, 2001, $230.00 a week for 26 weeks. She received a total of $5,980.00 from unemployment. (TR 22, 23, 24, 25, C-5 paragraph 8,9,10,11,12, C-6, Commission's Brief 3,4)
12. The Complainant thought she was eligible for the $10,000.00 bonus
based on the representations of the Respondent's senior vice president, Greg Nedwag, as well as, her favorable performance evaluation where she was also promised a bonus. (TR 27, 28, 29, 30, C-5 paragraph 6)
13. The Respondent ceased operations on April 15, 2001. (C-5 paragraph
13 Commission's Brief pg. 3)
This is a Hearing in Damages that is being held pursuant to the entry of the Order of Default by the undersigned on February 19, 2003 pursuant to §§ 46a-54-88a(a)(1) and (2), Regulations of Connecticut State Agencies. Complainant's allegations that she was terminated because of her sex, pregnancy and familial status in violation of General Statutes § 46a-60 (a)(1) and § 46a-60(a)(8) and Title VII of the Civil Rights Act of 1964, as amended, 42 U.S. C2000e and the Civil Rights Act of 1991 are deemed to be true for purposed of this hearing. "The hearing shall be limited to the relief necessary to eliminate the discriminatory practice and make the Complainant whole" Regulations of Connecticut State Agencies § 46a-54-88a(2)(b).
"Upon a finding a that a respondent has engaged in a discriminatory employment practice, the presiding officer may order the reinstatement of the complainant, back pay, front pay, the monetary value of lost fringe benefits, prejudgment interest and post-judgement interest. General Statutes §§ 37-3a, 46a-86(b); State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 481 (1989); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, judicial district of Hartford, Docket No. CV 92520590 (January 27, 1994)(10 Conn. L. Rptr. No. 19, 599, 601-04); Commission on Human Rights and Opportunities ex rel. Roberta A. Dacey v. The Borough of Naugatuck, CHRO No. 8330054, 15-16 (August 10, 1999). Awards of back pay and front pay must be reduced by the amount the complainant earned, or could have earned, with reasonable diligence. § 46a-86(b); Silhouette Optical Limited, supra, 10 Conn. L. Rptr. 601-03".
CHRO ex rel. Inessa Slootskin v. John Brown Engineers & Construction,
Inc. CHRO Case No. 9930167, Fed. No. 16a930252, dated April 29, 2003, decided by
Human Rights Referee Jon P. FitzGerald. (pp 12, 13)
The Complainant is seeking back pay of $9,822.54 - 13 weeks salary - plus the $10,000.00 bonus with the addition of pre-judgment and post-judgment interest.
A. Back Pay
The Complainant worked for the Respondent from October 8, 1999 when she was initially hired as a University Manager, until she was terminated by the Respondent on January 12, 2001. The Respondent went out of business approximately in the first quarter of 2001 according to the testimony of the Complainant and representations by the Commission. Complainant testified that the other employees were fired April 15, 2001 because Respondent had ceased operations. Therefore, the Commission on behalf of the Complainant is only seeking damages from January 12, 2001 until April 15, 2001 - a 13-week period. By the Complainant's testimony, her affidavit and the documentary evidence of the unsigned severance agreement, the Complainant was making $51,250.00 per year at the time she was terminated by the Respondent. In the document prepared by the Respondent, $2,956.73 is identified as three-(3) weeks salary. Dividing that figure by three yields a weekly salary of $985.58. Therefore, multiplying the Complainant's weekly salary of $985.58 x 13 weeks equals $12,812.54.
Therefore, the back pay calculation equals $12, 812.54
Bonus payments are a standard component of salary at the Respondent's
company. The Complainant was promised a bonus at her hiring. She was also
offered a $10,000.00 bonus at her performance evaluation. The bonus was never
paid by the Respondent.
Bonus -- $10, 000.00
Total Back Pay and Bonus equals $22,812.54
C. Unemployment Compensation
The Complainant testified that she received unemployment compensation from the State of California where she resides. She also presented a document from the State of California, C-6, which details that she received a total of $5,980.00 in unemployment compensation benefits. She also referred to these benefits in her affidavit. She testified that she began collecting benefits on January 14, 2002 and her benefits ended on July 21, 2002 - a period of 26 weeks. She was paid $230.00 per week. She also testified and stated in her affidavit that she was unable to find employment from the date of her termination, January 14, 2002 through April 15, 2001 when Respondent ceased operations. However, because the Complainant is only requesting 13 weeks of salary as back pay benefits, I am only deducting 13 weeks of unemployment compensation from her back pay benefits. (C-5 paragraph 8,9,10,11,12,13, Commission's Brief 3,4)
California Unemployment Compensation at $230.00 per week x 13 weeks equals $2,990.00.
Complainant's California unemployment benefits must be deducted from her salary pursuant to statute.
Total salary and bonus equals $22,812.54
Minus California Unemployment benefits of $2,990.00 equals $19,802.54
Therefore the adjusted back pay total is $19,802.54
D. Pre-judgment Interest
The awarding of pre-judgment interest is within the discretion of the referee. Saulpaugh v. Monroe Community Hospital, 4 F.3d, 134, 145 (2nd Cir. 1993), Silhouette Optical Limited, supra, 10 Conn. L. Rptr. 604.
The Complainant is awarded pre-judgment interest at the rate of 10% per annum, compounded annually, on her back pay wage loss of $19,802.54. Pre-judgment interest runs from the date of the discriminatory act, January 12, 2001, until the date of this decision.
E. Post-judgment Interest
The presiding officer is also authorized by General Statutes § 37-3a to award post-judgment interest in his/her discretion. I hereby award 10% post-judgment interest, compounded annually. The post-judgment interest runs from the date of my decision until the entire amount is paid by the Respondent.
1. The Respondent is ordered to pay to the Complainant a back pay award of
2. The Respondent is ordered to pay an award of pre-judgment interest at 10% per annum, compounded annually, from the date of the discriminatory act January 12, 2001 until the date of this decision.
3. The Respondent is ordered to pay post-judgment interest at 10% per annum, compounded annually, from the date of this decision until the date of full payment by the Respondent.
Leonard E. Trojanowski
Presiding Human Rights Referee