Smalls v. Waterbury Masonry & Foundation, Inc. - 0330386, Final Decision
CHRO Case No. 0330386
Fed No. 16aa300878
Commission on Human Rights & Opportunities ex rel. Kelly Smalls
Waterbury Masonry and Foundation, Inc.
January 23, 2004
The Complainant is Mr. Kelly Smalls. He resides at 25 English Street, Apt. B-1, New Haven, CT 06513. Attorney Christopher D. Grotz, 900 Newfield Street, Suite D, Middletown, CT 06457 represented the Complainant. The Respondent is Waterbury Masonry and Foundation, Inc. c/o Mr. Sal Gruerrera, 162 Commerce Court, Cheshire, CT 06410. The Commission on Human Rights and Opportunities was represented by C. Joan Parker, Assistant Commission Counsel II. The Commission on Human Rights and Opportunities is located at 21 Grand Street, Hartford, CT 06106.
II. Procedural History
The Complainant filed his complaint with the Commission on February 21, 2003. In his complaint he alleged that he was terminated on February 11, 2003 because of his physical disability, a "drop foot" condition. He needs to wear an AFO splint/brace for his condition. The Complainant also alleged that the Respondent discriminated against him because of his physical disability in violation of General Statute §46a-60(a)(1) as well as the Americans with Disabilities Act 42 U.S.C. 12101, et seq.
The Respondent never appeared nor filed an answer in spite of repeated contacts and notices by Commission personnel (CHRO Exh. 1-11). As a result, an order of default was entered by the Executive Director's designee on October 7, 2003. General Statute §46a-83(i) Regulations of Connecticut State Agencies §46a-54-46a(a). A Hearing in Damages was held on December 10, 2003.
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 Respondent had adequate notice of all the proceedings during this process. However, the Respondent refused to appear, to participate in the proceedings or to file an answer. (Tr. 7,8, CHRO Exh. 1-11)
2. The Complainant was a member of a bargaining unit entitled United Brotherhood of Carpenters and Joiners of America, New England Regional Council of Carpenters, Local 24. (Tr. 10, 12, Comp. Exh. 1)
3. There is a collective bargaining agreement between the Union and the Connecticut Construction Industries Association, Inc. which specifies the amount of money the employer must pay to the Complainant as wages and also contribute towards the "Carpenters Funds" benefits. (Tr. 10,11,12, Comp. Exh. 1)
4. The Complainant was working for the Respondent on February 11, 2003 when he was terminated because of his "drop foot" condition, which required him to wear an AFO brace/splint. His job performance is not affected by the brace. (Tr. 13, 14)
5. The statement dated April 14, 2003 from the Respondent shows Kelly Smalls was paid $167.52 for 16 hours of work for his benefit rate of pay. $167.52 divided by 16 equals $10.47 per hour benefit rate. (Tr. 13, Comp. Exh. 1, 2)
6. The Complainant earned $18.96 per hour in wages. (Tr. 14, 15, Comp. Exh. 1, 2)
7. The Complainant was rehired by the Respondent on March 24, 2003. (Tr. 14)
8. The Complainant lost (28) twenty-eight days of work between the date of his discharge, February 11, 2003, and the date of his rehire, March 24, 2003. (Tr. 13, 14)
9. The Complainant lost (28) twenty-eight days of work during 2003 and that resulted in lost wages of $4,247.04. (Tr. 13, 14, 15)
10. The Complainant also lost (28) twenty-eight days of benefit contributions by this employer in the amount of $2,345.28. (Tr.13, 14, 15)
The Hearing in Damages was held pursuant to the entry of an Order of Default. "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).The presiding officer is authorized to award back pay, the monetary value of lost fringe benefits, pre-judgment interest and post-judgment interest. General Statutes § § 37a-3a, 46a-86(b); State of Connecticut v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 599 (February 28, 1994). Silhouette Optical Limited v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989)
The presiding officer is also authorized to award both pre-judgment interest as well as post-judgment interest on the award. The award of interest and its method of calculation are within the discretion of the presiding officer who may choose the interest calculation best suited to make the Complainant whole. The presiding officer may also compound the interest. Silhouette, supra, 10 Conn. L.Rptr. No. 19, 604
The evidence shows the Complainant suffered the following losses:
(1) Wage losses for 2003 - $4,247.04
(2) Benefit losses for 2003 - $2,345.28
(3) Total wage and benefit losses for 2003 - $6,592.32
In their Joint Prayer for Relief dated, December 17, 2003, the Commission and the Complainant both claim thirty-one (31) working days between February 11, 2003 and March 27, 2003. However, I calculate twenty-eight (28) working days between February 11, 2003, the date of termination and March 24, 2003 the date of rehire.
Pre-judgment interest is hereby awarded to the Complainant, in the amount of 10% per annum, compounded annually, from the date of the discriminatory act, February 11, 2003, until the date of this decision.
Post-judgment interest in the amount of 10% per annum, compounded annually, is awarded from the date of this decision until the Respondent makes full payment to the Complainant.
V. Conclusions of Law
The Respondent was given legally sufficient notice of the Hearing Conference, the requirement to file an answer and of the Hearing in Damages.
The entry of the Default Order on October 7, 2003 establishes the liability for claims of discrimination contained in the Affidavit of Illegal Discrimination dated February 21, 2003.
The Complainant is awarded back pay and benefits losses for 2003 totaling $6,592.32.
The Complainant is further awarded pre-judgment interest, compounded annually, from the date of the discriminatory act, February 11, 2003, until the date of this decision.
The Complainant is also awarded post-judgment interest, at the rate of 10% per annum, compounded annually, from the date of this decision until the date of full payment by the Respondent.
VI. Order of Relief
1. The Respondent, Waterbury Masonry and Foundation, Inc. shall pay to the Complainant, Kelly Smalls wage and benefit losses totaling $6,592.32.
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, February 11, 2003, until the date of this decision.
3. The Respondent is also ordered to pay an award of post-judgment interest in the amount of 10% annum, compounded annually, from the date of this decision, until the date of full payment by the Respondent.
4. The Respondent shall also cease and desist from discriminating against people with physical disabilities, now and in the future.
5. The Respondent is hereby prohibited from discriminating against the Complainant, or any other party, who participated in these proceedings, in violation of General Statute §46a-60(a)(4) by discharging, expelling or otherwise discriminating against any person because he or she has opposed a discriminatory practice, filed a complaint, testified or assisted in any of the proceedings before the Connecticut Commission on Human Rights and Opportunities.
6. The Respondent shall post in all of its Connecticut business locations, posters supplied by the Commission concerning equal employment, discrimination and remedies pursuant to General Statutes § § 46a-54(13), 46a-60.
Leonard E Trojanowski
Presiding Human Rights Referee
Attorney Christopher D. Grotz
Assistant Commission Counsel C. Joan Parker