Gilmore v. City of Waterbury - Final Decision
CHRO No. 9620571
Commission on Human Rights and Opportunities, ex rel. David Gilmore, Complainant
City of Waterbury, et. al., Respondents
August 11, 2000
FINAL DECISION and ORDERS REGARDING DAMAGES
I. THE PARTIES
Mr. David Gilmore
P. O. Box 11444
Waterbury, CT 06702
Attorney Thomas E. Meiklejohn
Livingston, Adler, Pulda and Meiklejohn, P.C.
557 Prospect Avenue
Hartford, CT 06105-2922
COMMISSION ON HUMAN RIGHTS AND OPPORTUNITIES:
Alix Simonetti, Esq.
Assistant Commission Counsel II
21 Grand Street, 4th Floor
Hartford, CT 06106
c/o Office of the Mayor
City of Waterbury
236 Grand Street
Waterbury, CT 06702
Attorney Cheryl E. Hricko
Office of Corporation Counsel
236 Grand Street
Waterbury, CT 06702
II. PROCEDURAL HISTORY:
The underlying complaint was filed on May 10, 1995 by David Gilmore (hereinafter “Complainant”) against the City of Waterbury and its then mayor, Edward Bergin. Complainant alleged that he had been discriminated against with respect to the terms and conditions of his employment in that he was discharged from the position of Executive Director of the Office of Housing and Neighborhood Development on the basis of his color, race, and in retaliation for his opposition to what he perceived as discriminatory employment and housing practices. Specific statutes cited as being violated were C.G.S. § 46a-58(a)(1), C.G.S. § 46a-60(a)(1), C.G.S. § 46a-60(a)(4), C.G.S. § 46a-64, C.G.S. § 46a-64c(a)(9), 42 U.S.C. § 3601 et seq., 42 U.S.C. § 12101 et seq., and 42 U.S.C. § 2000e-1 et seq.This case was certified to a public hearing on or about June 28, 1996 and was assigned to the Hon. Ruben E. Acosta as Hearing Officer on or about September 12, 1996.
The public hearing was held for eleven (11) non-consecutive days between February 20, 1997 and June 30, 1997. Post hearing and reply briefs were filed by the parties by October 27, 1997. After a delay of more than two years, at the request of the hearing officer, an additional hearing was held on April 14, 2000 to receive “supplemental information,” and the parties submitted a supplemental brief thereafter.On or about June 14, 2000 the Hearing Officer filed a “Ruling on the Merits” in which he sustained Complainant’s charges of discrimination and found Respondents in violation of the enumerated statutes alleged in the complaint. He further ordered that a “status conference on the record” be held to assess the damages and relief to be awarded. Immediately subsequent to this decision on June 19, 2000, the undersigned, as Acting Chief Human Rights Referee, reassigned this matter to myself pursuant to Subsection (e) of Section 1 of Public Act 98-245. After conducting a telephonic status conference on July 5, 2000, a Hearing in Damages was ordered held on July 27, 2000. The damages and relief herein ordered are based on a review of the evidence contained in the existing record, and on the evidence offered at the Hearing in Damages. As noted above, the liability aspect of the case was previously determined by Hearing Officer Acosta in his aforementioned Ruling on the Merits.
Once the presiding hearing officer has determined that unlawful discrimination has occurred, he is authorized by statute (see C.G.S. § 46a-86) to award relief sufficient to make the Complainant whole and place him in the position he would have been in absent the Respondents discriminatory discharge. Saulpaugh v. Monroe Community Hospital, 4 F.3d. 134, 144 (2nd Cir. 1993); Worthington v. City of New Haven, 1999 WL 958627 (D. Conn. 1999).
Back pay relief is specifically authorized by C.G.S. § 46a-86(b), and may include inter alia merit increases, salary adjustments, and fringe benefits so long as the Complainant can prove, rather than merely speculate, that he would have earned these absent the discriminatory act. Equal Employment Opportunity Commission v. Joint Apprenticeship Committee of the Joint Industry Board of the Electrical Industry, 186 F.3d. 110, 124 (2nd Cir. 1999). Back pay may in the appropriate circumstances run from the date of termination to the date of judgment.
In this case, the Complainant seeks a back pay award running from the date of his wrongful discharge, November 22, 1994, to the present date. The Respondents argue that at the very latest this award should be cut off effective February 6, 1996, the date on which the Complainant’s successor was terminated and the stand-alone position of Executive Director of the Office of Housing and Neighborhood Development (hereinafter “OHND”) eliminated. I agree with the Respondents on this issue.In fashioning a remedy in a specific case, a Presiding Hearing Officer is guided by the premise that “the victim of a discriminatory practice is to be accorded his rightful place in the employment scheme, that is he has the right to be restored to the position he would have attained absent the unlawful discrimination.”Spagnulo v. Whirlpool Corporation, 717 F.2 114, 121 (4th Cir. 1983), State v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989).
In the context of this case, that would mean restoring Complainant to his position as Executive Director of OHND as of November 22,1994 at a base salary of $50,000/year. There was evidence that a 4% pay raise was adopted in December 1994 (Tr. 313) that would have been applicable to Complainant, and which was retroactive to July 1, 1994. This would raise Complainant’s compensation level to $52,000/year, or to $1,000.00 per week.Additionally, Complainant asserts that he is entitled to a “raise” to a salary of $65,000 per year to equal the salary given his successor, Ernest Mosley, effective from July 1, 1995 onward. However, putting Complainant back into the position he otherwise would have been in, absent his discriminatory termination, would have meant there would have been no replacement (i.e., Mr. Mosley) to compare himself against. There is nothing in the record that supports the contention that Complainant would have otherwise received a 25% salary increase in July of 1995, had he still been employed by the Respondent. In contrast, there was evidence that Mr. Mosley, who at the time was Deputy Commissioner for Housing with the State of Connecticut, had substantially more experience in the area of public housing, urban renewal, and state-related programs (Tr. 730-733). This experience logically reflected itself in the higher salary awarded.As noted previously, Complainant seeks a back pay award predicated on continuous employment as Executive Director of OHND from November 22, 1994, to today’s date. Implicit in this claim is the assertion that Mayor Giordano, who defeated Mayor Bergin in November of 1995, would have retained Mr. Gilmore in his position once he assumed office in January 1996. It is to be recalled that Complainant was a political appointee of former Mayor Bergin, and it is undisputed that Complainant’s position was a “terminable at will” one (Section 2-75 of the Waterbury Code provided “… Mayor shall appoint a director of the housing office who shall serve at the mayor’s pleasure”) (emphasis added).Unfortunately, for Complainant’s claim, in this regard is the fact that Mayor Giordano’s “pleasure” did not involve hiring Mr. Gilmore. The absolutely unambiguous testimony of Mayor Giordano at the Public Hearing was that he had absolutely no intention of having Complainant serve in that position (Tr. 1191-92, 1216). As there is no claim of discrimination made against Mayor Giordano, who had the exclusive power of appointment, his clearly stated preference in this matter is necessarily dispositive. In fact, the record indicates that the position in question was in any event effectively eliminated by a reorganization that took place on or about February 6, 1996 (Tr. 1198-1207).Therefore, Complainant’s back pay award is necessarily limited to the period from November 22, 1994 until February 6, 1996. For the reasons noted previously, an annual salary of $52,000 is used to calculate the award due, which will also include the 4% pay raise retroactively effective July 1, 1994.Retroactive Pay Increase:
(7/1/94-11/22/94) 4% x 961.54 (weekly salary) x 20 weeks = $ 769.00
Back-pay (lost salary):
(11/22/94-2/6/96) 63 weeks @ $1,000/week ($52,000 /year) = $63,000.00
It is generally accepted that the Complainant has a general duty to mitigate damages. NLRB v. Mastro Plastics Corp., 354 F.2d 170 (2nd Cir 1965); Vera Lozano v. International Broadcasting, 50 F.3d 67 (1st Cir. 1995). Equally well established is the premise that the burden of establishing that there was a failure to mitigate damages is on the employer. Ann Howard’s Apricots Restaurant, Inc. v. CHRO, 237 Conn. 209 (1996). In this case, the Respondent makes generalized claims as to the Complainant’s alleged failure to mitigate his damages (Resp.-Brief p.51). However nothing in the record cited or argued by the Respondent rises to the level of sustaining its burden in this case. The Complainant did earn some money while working for his brother’s construction company (Tr. 325) in 1995 and sent out numerous job search letters during this time to prospective employers along the east coast. He also – unavailingly – supported Mayor Giordano in his election bid in the hope that the latter would reappoint him to his former position upon his election. Therefore I cannot find on this record a failure to mitigate sufficient to defeat Complainant’s recovery of a back pay award.It would appear that, in addition to the $3,000 earned in 1995, Complainant received $9,770 in unemployment compensation during the year 1995 (1995 Tax Return), and $1,500 in unemployment in 1994 (1994 Tax Return). The record is not clear on what income or unemployment might have been earned in 1996 up to February 6, and I decline to speculate on this and other economic damages. Thus, my calculation of mitigation is as follows:
Earnings -- $ 3,000
Unemployment Compensation -- ($9,770 + $1,500) $1 1,270
Thus, I find Complainant’s Back-Pay to be: ($63,769 – $14,270) $4 9,499V. INTEREST:
Connecticut’s courts have held that the award of interest and the method of its calculation are within the discretion of the fact finder. 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). This is particularly true in cases of employment discrimination. “Pre-judgment interest is an element of complete compensation.” Silhouette, at p. 21-22. Similarly, the Second Circuit has said that
“pre-judgment interest on a back pay award … is to prevent an employer from attempting to repay an interest-free loan for as long as it can delay paying out back wages. Therefore, this court has held that it is ordinarily an abuse of discretion not to include pre-judgment interest in a back pay award.”
Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 143 (2nd Cir. 1993).
Given that the objective is to make the plaintiff whole, the court went on to rule that compound interest is appropriate.
Previous decisions of CHRO Hearing Officers and Human Rights Referees have found 10% to be a fair and reasonable rate in accordance with C.G.S. § 37-3a, and I do here as well. The effective date on which such interest should commence to run is February 6, 1996, the date on which Complainant would have otherwise lost his position but for the discrimination of the Respondents. A commencement date of November 22, 1994, would normally be appropriate in my view, but in light of the 2-1/2 year delay in finalizing this decision through no fault of the Respondents, such a time frame appears unreasonable to me.
Therefore, I award 10% compound interest of the back pay award of $49,499, with such interest commencing its run on February 6, 1996.
VI. ATTORNEY’S FEES:Complainant seeks an award of attorney’s fees predicated on the claim that such fees are authorized in “this” case pursuant to C.G.S. § 46a-86(c) which reads in pertinent part that“in addition to any other action taken hereunder, upon a finding of a discriminatory practice prohibited by section ……. 46a-64c, the presiding officer shall determine the damage suffered by the Complainant, which damage shall include … and shall allow reasonable attorney’s fees and costs.” (Emphasis added).
In his Ruling on the Merits the Hearing Officer, the Hon. Ruben Acosta, found Respondents’ actions to violate C.G.S. § 46a-64c(a)(9) among other provisions. Such a finding is binding on me at this juncture and is dispositive of the issue.Although the Respondent, in its Brief of October 1, 1997 objects to any consideration of attorney’s fees, it does so based on a misplaced reliance on Bridgeport Hospital v. CHRO, 232 Conn. 91 (1995). That case dealt with a proposed award of such fees for a violation of § 46a-60(a)(1). As the Court noted, the latter statute is specifically not enumerated in § 46a-86(b), under which the latter case was brought. “It is a well-established tenet of statutory construction that the fundamental objective is to ascertain and give effect to the apparent intent of the legislature … and to discern that intent we look to the words of the statute itself.” Paulos v. Pfizer, Inc., 244 Conn. 598, 605 (1988).“Where the language of the statute is plain and unambiguous, … we need look no further than the words themselves,” Cashman v. Cashman, 41 Conn. App. 382, 385-6 (1996), and in this instance that language is plain and directory. A violation of C.G.S. § 46a-64(c) does expose a Respondent to reasonable attorney’s fees pursuant to the clear language of § 46a-86(c).Complainant submitted an Affidavit of Attorneys Fees dated July 27, 2000. (Comm.-Exhibit 50), in which he seeks $95,430.00; reflective of 352.7 hours at $275/hr. I find the hourly rate of $275.00 to be excessive for representation in a non-judicial/jury proceeding conducted in 1995-1997. I find $175.00 to be a more reasonable hourly rate.
Therefore, I award $61,722.00 to the Complainant as reasonable attorney’s fees representing 352.7 hours at $175.00/hr.
VII. OTHER RELIEF – COMPLAINANT: Complainant argues that inter alia he is
also entitled to compensatory damages related to the loss of his house (C’s-Brief,
p.58). The relatively meager record on this issue (Tr. 336-337) appears to
indicate that foreclosure proceedings had been instituted and were almost
completed as of the closing of the record in 1997. Complainant asserts that the
provision for an award of “damages” in C.G.S. § 46a-86(c) authorizes this
relief since he allegedly lost his house as a direct consequence of his
termination. Complainant places the lost equity at $35,000.00.Even assuming the
statute in question could be read as authorizing this kind of relief – which I
do not – or that authority for this proposition could be cited – which it
has not – I still could not justify the award requested. The testimony, brief
as it was, indicates that Complainant purchased his home in 1988 with a $25,000
down payment (Tr. 337). He further indicates that he had paid down approximately
$10,000 in principal, leaving the total claimed equity at $35,000.00. However,
there was no evidence whatsoever to indicate what the fair market value of his
home was in 1995-1997 as compared to 1988. The undersigned can take judicial
notice of the fact that there were substantial changes in the real estate market
during this period which could have affected market value, and thus equity.
There was no evidence offered as to the condition of the house as compared to
1988. Also, it is completely unclear as to whether the foreclosure proceedings
were occasioned by the loss of income from November 22, 1994 to February 6,
1996, or because of the loss of income from November 22, 1994 until 1997. This
would obviously make a difference as the discriminatory impact related only to
the former period.There had also been testimony about a previous foreclosure
proceeding occasioned by Complainant’s wife’s illness (Tr. 467). It is not
clear what, if any, impact on the 1997 foreclosure was the result of factors
involving his wife, which would be extraneous to this proceeding.In short,
Complainant’s claimed losses, with respect to his house, are purely
speculative and unsubstantiated, as is their proximate connection to the
discriminatory actions of the Respondent. This is equally true with respect to
the request for allegedly lost sick and vacation time, as the record seems to be
substantially bare on these claims.I do not feel it is appropriate to speculate
on damages, and particularly where it is decidedly unclear as to the legal basis
for the claim, which is especially true with respect to the claimed lost equity
in the house.
VIII. COMMISSION RELIEF:
The Commission requested in its Brief various Orders aimed at ensuring that future discriminatory actions, especially involving retaliation, do not occur. However, it appears to the undersigned that the discriminatory actions complained of in this case were confined to a single individual, former Mayor Bergin, who is no longer in office. This fact, in conjunction with the fact that the discriminatory actions took place almost six years ago, leads me to believe that some of the relief requested is unnecessary; the decision in this case will undoubtedly be a salutary lesson for those following in Mayor Bergin’s footsteps. Therefore, an Order requiring Respondents to cease and desist conduct discriminatory to its employees on the basis of retaliation appears sufficient.The Commission’s request for reimbursement for the unemployment compensation paid to Complainant as a result of the unlawful documentary actions of Respondent also appears to be reasonable, appropriate, and is required by Connecticut law.
1. The Respondents are ORDERED to pay Complainant $49,500 in back-pay.
2. Interest on the above Sum is to be compounded annually at a rate of 10% per annum effective as from February 6, 1996.
3. Respondents are ORDERED to pay Complainant $61,722.00 toward reasonable attorney’s fees incurred in this matter.4. Respondents are ORDERED to cease and desist from future discrimination against employees and applicants for employment on the basis of retaliation. (pursuant to C.G.S. § 46a-86(b)).
5. Respondents are ORDERED to pay to the Commission on Human Rights and Opportunities the Sum of $9,770.00, which sum shall be transferred to the Department of Labor as reimbursement for unemployment compensation paid to Complainant, and which is attributable to Respondent’s discrimination.
Dated this 11th day of August, 2000 at the Office of Public Hearings, 21 Grand Street, Hartford, Connecticut.
Honorable Gordon T. Allen
Presiding Human Rights Referee
cc: Mr. David Gilmore
Attorney Thomas E. Meiklejohn
c/o Office of the Mayor, City of Waterbury
Attorney Cheryl E. Hricko
Attorney Alix Simonetti, Assistant Commission Counsel
Attorney Raymond Peck, Deputy Commission Counsel
Ann Galer-Pasternak, Public Hearing Administrator