Williams v. M. N. S. Corp, Memorandum of Decision
CHRO No. 0010124
Commission on Human Rights and Opportunities ex rel.
Robert L. Williams, Jr., Complainant
M.N.S. Corporation, Respondent
March 1, 2001
MEMORANDUM OF DECISION
FINDINGS OF FACT
1. On or about September 24, 1999, Robert L. Williams, Jr. ("the
complainant") filed with the Commission on Human Rights and Opportunities
("the commission") an Affidavit of Illegal Discriminatory Practice
("the complaint"), alleging that his employer, M.N.S. Corporation
("the respondent") terminated his employment because of his race and
color (black) in violation of General Statutes §46a-60(a)(1). (Exhibit
["Ex."] CHRO-1) The complainant filed an amended complaint on
September 30, 1999. (Ex. CHRO-2) (Hereinafter, the complaint and the amended
complaint are referred to collectively as "the complaint.")
Specifically, the complaint alleges, among other things, that as of May or June 1999, the respondent employed six drivers, five black (including the complainant) and one white. All five black drivers were terminated on or about June 2, 1999. Thereafter, the respondent hired white drivers as replacements. (See Complaint, pars. 4, 14, 15)
2. On October 6, 1999, the commission caused to be served on the respondent the complaint, a set of interrogatories, and a general notice of parties’ obligations and duties. (Ex. CHRO-3)3. The respondent filed its answers to the complaint and to the interrogatories on November 24, 1999. (Ex. CHRO-4)
4. On or about September 5, 2000, a commission investigator determined that there was reasonable cause for believing that a discriminatory practice had been committed. (Ex. CHRO-5) After efforts at conciliation failed, the investigator certified the complaint to the commission’s executive director for the purpose of scheduling a hearing before the Office of Public Hearings. ("OPH") (Ex. CHRO-6)5. On October 24, 2000, OPH served upon the respondent and the other parties, by certified mail, return receipt requested, a notice of public hearing pursuant to General Statutes §46a-84(a). (Ex. CHRO-7) The certified mail receipt indicates that the respondent received this notice. (Id.) The notice states, in pertinent part:
The public hearing will commence with a hearing conference to be held on November 29, 2000 at 2:00 p.m. in room 446 of the offices of the Commission . . .. All parties shall appear at the hearing conference.
* * *
The respondent shall file, under oath, a written answer within 15 days to the complaint or amended complaint in accordance with §46a-54-94 of the Regulations [of Connecticut State Agencies]. Failure to file an answer may result in an order of default in accordance with §46a-54-95 of the Regulations.
6. Despite receiving the notice of public hearing, the respondent did not file its answer to the complaint.
7. Human Rights Referee Lara L. Manzione conducted the hearing conference on November 29, 2000. The complainant and the commission appeared, but the respondent failed to appear. Following the hearing conference, Referee Manzione issued a "Conference Summary and Order" that stated, in pertinent part:
The commission, with the consent of the Complainant, made an oral motion for default of the Respondent for its failure to (1) file an answer and (2) appear at today’s duly noticed hearing conference. Failure of the Respondent to respond to the motion for default by December 11, 2000 shall result in the entry of default against the Respondent and the scheduling of a Hearing in Damages.(Ex. CHRO-8, p. 5)
8. Referee Manzione’s order was sent to the respondent by certified mail, return receipt requested, but was returned to OPH on January 5, 2001 as "unclaimed" after three delivery attempts. (Ex. CHRO-8)9. On December 12, 2000, Referee Manzione entered an order of default against the respondent for its failure to file an answer and its failure to appear at the hearing conference; the order also provided notice that a public hearing in damages was scheduled for January 30, 2001 at 9:30 a.m. in the Small Hearing Room, 21 Grand Street, Hartford. The order was served by first-class mail upon all parties and the record contains no indication that the respondent did not receive the order. (Ex. CHRO-9)
10. I conducted the hearing in damages on January 30, 2001. The complainant appeared pro se and the commission appeared through its counsel, Robert J. Brothers, Jr. The respondent did not appear at the hearing and did not file any documents in response to the orders described above.
11. The record closed on February 23, 2001, when the commission filed its post-hearing brief.
Damages12. The respondent hired the complainant as an eighteen-wheel truck driver on April 21, 1998. The complainant’s beginning salary was $13 per hour; it was increased to $14 per hour on August 8, 1998. (Exs. CHRO-1, CHRO-16; Testimony ["Test."] of Williams, Transcript ["Tr."] p. 19)13. From April 21, 1998 through December 31, 1998, the complainant earned $25,999. (As noted by the commission, this amount averages $722 per week.) (Ex. CHRO-10; Test. Williams, Tr. 15; also see Prayer for Relief)
14. From January 1, 1999 through June 2, 1999, the complainant earned $12,808. (Ex. CHRO-11; Test. Williams, Tr. 15-16)
15. The complainant was terminated on June 2, 1999. (Ex.CHRO-1; Test. Williams, Tr. 15-16)
16. From approximately June 10, 1999 until mid-September 1999, the complainant was employed as an eighteen-wheel truck driver by Connecticut Mulch Distributors, Inc., at a salary of $12 per hour. During his tenure with this employer, the complainant worked overtime every week and earned $12,329. He was laid off due to lack of available work. (Exs. CHRO-12, CHRO-16; Test. Williams, Tr. 16-17)
17. From September 1999 through March 12, 2000, the complainant collected $9,515 in unemployment compensation. (Exs. CHRO-13, CHRO-14; Test. Williams, Tr. 17-19)
18. Between September 1999 and May 2000, the complainant attempted to find employment as an eighteen-wheel truck driver through newspaper advertisements, friends, business owners, and other truck drivers. He personally contacted various potential employers within commuting distance of his home, checking back with each numerous times. (Ex. CHRO-16)
19. On May 28, 2000, the complainant began employment as an eighteen-wheel truck driver at American Material Corporation at the rate of $15 per hour. (Ex. CHRO-16; Test. Williams, Tr. 19)
DISCUSSION AND CONCLUSIONSA. The commission has taken all of the proper procedural steps to bring this complaint to a public hearing.
B. According to §46a-54-95 of the Regulations of Connecticut State Agencies ("the regulations"), "The presiding officer may enter an order of default against a respondent who fails to file a written answer as provided for in section §46a-54-94 or fails to appear at the hearing" after lawful notice. In the present case, the respondent failed to file an answer as required by the regulation, failed to appear at the duly-noticed hearing conference, and failed to respond to the motion for default (as described in Referee Manzione’s order). Accordingly, Referee Manzione lawfully entered an order of default on December 12, 2000. The respondent further failed to appear at the January 30, 2001 hearing.In a hearing in damages following a default order, the complainant need not prove the respondent’s liability. All relevant allegations in the complaint are deemed admitted without further proof and are therefore found to be true. Thus, the entry of default established the respondent’s liability for violation of General Statutes §46a-60(a)(1), the statute cited in the complaint, and the hearing in damages was limited to determining the appropriate relief to make the complainant whole and to eliminate the discriminatory practices. (See §46a-54-95 of the regulations.)C. The presiding officer is authorized to award relief, the goal of which is to make the complainant whole and to place him in the position he would have been in absent the respondent’s discriminatory action. General Statutes §§46a-83(i), 46a-86; State of Connecticut v. Commission on Human Rights and Opportunities, 211 Conn. 464, 478 (1989). Back pay relief is specifically authorized by General Statutes §46a-86(b). The complainant claims back pay from the date of his discharge, June 2, 1999, through May 27, 2000, after which he began a new job at a higher hourly rate. As discussed below, the claim for back pay must be offset by any interim earnings and unemployment compensation the complainant received.In its prayer for relief, the commission bases its projection of the complainant’s potential earnings for his months of unemployment in 1999 and 2000 upon the weekly average of the complainant’s 1998 earnings, $722 per week. That is, the commission assumes that the complainant would have continued to earn that weekly average had he not been discharged, and his back pay award should be based on that figure. However, the record reveals that in the first part of 1999, the complainant earned only $12,808 over a period of 21.5 weeks, averaging $596 per week prior to his termination. Were I to use this latter average instead of $722 as a basis for a back pay award for the remainder of 1999, the result would be considerably less than the amount projected by the commission. Furthermore, using 1999 as a basis for predicting the complainant’s earnings for twenty-one weeks in 2000 would likewise yield a lower figure, $12,510, rather than the commission’s projected $15,162. Nothing in the record dictates that I choose the higher average as a benchmark, and in some respects it would even make more sense to use the more recent, albeit lower, number as representative of what the complainant might have continued to earn had he remained employed by the respondent.To find a more accurate average, and to yield a more appropriate and just result, I will instead consider the entire length of the complainant’s service, from April 21, 1998 through June 2, 1999. During his fifty-eight weeks tenure with the respondent, the complainant earned a total of $38,807, averaging $669 per week. Based on this figure, the complainant’s projected earnings for all of 1999 would be $34,792, a figure which must be offset by his actual 1999 earnings with the respondent and Connecticut Mulch Distributors, as well as by his unemployment compensation. The complainant’s projected earnings for 2000, up until the time he began new employment on May 28, would be $14,051, an amount which must then be offset by eleven weeks of unemployment compensation. Accordingly, I calculate the complainant’s damages as follows:Expected earnings, 1/1/99 – 5/28/00: ($34,792 + $14,049) $48,841
Offsets: 1999 income from respondent -12,808
1999 income from Conn. Mulch -12,329
1999-2000 unemployment compensation - 9,515Total Damages $14, 189
D. A complainant in an employment discrimination case such as this has a duty to mitigate his damages by using reasonable diligence to find other suitable employment. (See General Statutes §46a-86(b), which requires this tribunal to deduct from any back pay award "amounts which could have been earned with reasonable diligence.") The goal of this mitigation requirement is to prevent former employees from simply remaining idle. Raimondo v. Amax, Inc., 843 F.Supp. 806, 809 (D.Conn. 1994) It is the employer, however, who bears the burden of pleading and proving, as an affirmative defense, that the complainant failed to make reasonable efforts to mitigate his damages. Hawkins v. 1115 Legal Service Care, 163 F.3d 684, 695 (2nd Cir. 1998); Ann Howard’s Apricots Restaurant, Inc. v. Commission on Human Rights and Opportunities, 237 Conn. 209, 229 (1996). Typically, an employer must demonstrate (1) that suitable work existed, and (2) that the former employee did not make reasonable efforts to obtain such work. Dailey v. Societe Generale, 108 F.3d 451, 456 (2nd Cir. 1997).There is no question that the complainant must have used sufficient diligence upon his termination by the respondent, insofar as he found a new position almost immediately. However, after being laid off by Connecticut Mulch in September 1999, the complainant did not obtain a new job for eight months. During that hiatus, the complainant, at a minimum, perused classified ads, spoke with contacts, and made the obligatory inquiries required by the Employment Security Division of the Connecticut Department of Labor in order to qualify for unemployment compensation. Whether these efforts are deemed unreasonable is a factual matter, proof of which is the responsibility of the respondent. In the present case, the respondent neither averred a "failure to mitigate" defense nor appeared at the lawfully-noticed hearing to present evidence on this issue; thus, the respondent has failed to meet its burden.
E. An award of pre-judgment interest is within the discretion of this tribunal; it is an appropriate means of fully restoring the complainant to the economic position he would have been in but for his discharge. Frank’s Supermarket v. Michaud, Docket No. CV95-549356S, Superior Court, judicial district of Hartford/New Britain at Hartford, pp. 17-18 (April 22, 1996); Commission on Human Rights and Opportunities ex rel. Myles v. Ice Cream Delight and Bakery, Inc., CHRO No. 9310191, pp. 9-10 (September 1, 1999). In fact, according to the Second Circuit, it is "ordinarily an abuse of discretion not to include pre-judgment interest on a back pay award." Saulpaugh v. Monroe Community Hospital, 4 F.3d 134, 145 (2nd Cir. 1993), cert. denied, 510 U.S. 1164 (1994).This tribunal, like state and federal courts, has the discretion to choose a pre-judgment interest calculation designed to make the complainant whole. Silhouette Optical Ltd. v. Commission on Human Rights and Opportunities, 10 Conn. L. Rptr. No. 19, 599 (February 28, 1994). An appropriate rate of interest, as used in other decisions, is ten percent. See General Statutes §37-3a; Frank’s Supermarket v. Michaud, supra, 18-19; Silhouette Optical Ltd. v. Commission, supra; Commission on Human Rights and Opportunities ex rel. Rose v. Payless Shoesource, Inc., CHRO No. 99203353 (November 1, 1999). While case law supports an award of compounded interest (see, e.g., Saulpaugh v. Monroe Community Hospital, supra, 4 F.3d 145), here the commission has asked only for simple interest at the rate of ten percent.ORDER OF RELIEF
The respondent shall pay to the complainant the sum of $14,189 for back pay, along with simple interest accrued annually at the rate of ten percent (10%) from June 2, 1999 until the date of this decision.
Pursuant to General Statutes §37-3a, the respondent shall pay post-judgment simple interest on the award of damages. Said interest shall accrue daily on the unpaid balance from the date of this decision at the rate of ten percent (10%) per year.
The respondent shall cease and desist from all acts of discrimination prohibited by state or federal law, and shall provide a non-discriminatory work environment pursuant to all state and federal law.
The respondent shall post in prominent and accessible locations, visible to all employees and applicants for employment, such notices regarding statutory anti-discrimination provisions as the commission shall provide. The respondent shall post the notices within three working days of their receipt.
Should prospective employers seek references concerning the complainant, the respondent shall provide only the dates of said employment, the last position held, and the rate of pay. In the event additional information is requested in connection with any inquiry regarding the complainant, the respondent shall obtain written authorization from the complainant before such information is provided, unless it is required by law to provide such information.
The respondent shall not engage in any retaliation against the complainant in violation of General Statutes §46a-60(a)(4).
Pursuant to General Statutes §46a-86(b), the respondent shall pay to the commission $9,515, which represents the amount of unemployment compensation received by the complainant. The commission shall then transfer said amount to the appropriate state agency.
So ordered, this 1st day of March, 2001.
David S. Knishkowy
Human Rights Referee
Robert L. Williams, Jr.
36 Allen Street
Windsor, CT 06095
Commission on Human Rights and Opportunities
21 Grand Street
Hartford, CT 06106
Robert J. Brothers, Esq
21 Grand Street 21
Hartford, CT 06106
Attn: Ida Roy
55 White Birch Circle
Somers, CT 06071
Unrepresented; did not appear at hearing