0330195, Gillmore v. Mother's Work, Final Decision

CHRO No. 0330195

Fed No. 16aa300186

Commission on Human Rights & Opportunities ex rel. Alexis Gillmore
v.
Mothers Work, Inc.

September 30, 2003

Final Decision

I. Parties

The Complainant is Alexis Gillmore; she resides at 146 Royal Oak Drive, Durham CT 06422. Attorney Anthony J. Pantuso of Hayber & Pantusa, 221 Main Street, Suite 400, Hartford, CT 06106 represented her. The Respondent is Mothers Work, Inc., which is located at 456 North Fifth Street, Philadelphia, PA 19123. The Commission on Human Rights and Opportunities was represented by Attorney David L. Kent, 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 her complaint with the Commission on October 18, 2002. She alleged in her complaint that the Respondent's termination of her employment was the result of failing to allow her a reasonable leave related to her pregnancy and failing to reinstate her to the same or an equivalent position in violation of General Statutes § 46a-60(7)(b) and terminating her employment because of her pregnancy in violation of General Statutes § 46a-60(7)(a). Complainant alleged that the Respondent discriminated against her because of her gender in violation of General Statutes § 46a-58 and §46a-60(a)(1) and Title VII of the Civil Rights Act of 1964, as amended, and the Civil Rights Act of 1991, 42 U.S.C. 2003, et seq. The Commission served the Complaint on the Respondent on October 25, 2002, via certified mail CHRO-1. The Complaint was received by the Respondent on October 29, 2002. CHRO-2. The Respondent never appeared or filed an answer in spite of repeated contacts and notices by Commission personnel. CHRO-3, CHRO-5, CHRO-6, CHRO-7, CHRO-8, CHRO-9. As a result, an order of default was entered by the Executive Director's Designee on March 31, 2003, Regulations of Connecticut State Agencies § 46a-54-46a(a), General Statutes § 46a-83(i). CHRO-10. A Hearing in Damages was held on July 2, 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. Complainant started employment for Mothers Work, Inc. on November 1, 2001, as an assistant store manager. (Tr. 18, 19)
2. She was hired to work a forty-hour week, without overtime, at the rate of $10.50 per hour. (TR. 19.)
3. When Complainant was hired she was informed that she was eligible for a raise to $11.50 per hour after ninety days, if her performance was satisfactory. (Tr. 19)
4. The Complainant was also eligible to receive quarterly bonuses (every 3 months) based upon a percentage of sales. Her bonus averaged $225.00. (Tr. 19, 20)
5. The Complainant went on medical leave on January 15, 2002, approximately 8 weeks prior to the birth of her daughter, because Complainant's doctor ordered her to go on bed rest because of some difficulties with her pregnancy. (Tr. 20, C-6)
6. The Complainant's daughter was born on March 14, 2002. (Tr. 20)
7. After the birth of her daughter, the Complainant called her store manager during this time and arranged to return to work on April 29, 2002. (Tr. 20, 21)
8. Upon her return to work, the Complainant would have been eligible for health insurance benefits, worth $200 per month, effective May 1, 2002. (Tr. 26, 27, 30)
9. On April 22, 2002, the Respondent sent a termination letter to the Complainant, via Airborne Express stating the following:

10. At the time of her termination, the Complainant was earning $11.50 per hour. (Tr. 19)
11. The Complainant then began a diligent effort to obtain new, full-time employment. Part of her job search is documented in Complainant's Exhibit 2. (Tr. 21, 22, C-2)
12. The Complainant received unemployment compensation from the State of Connecticut in the amount of $6,996.00. This is evidenced by her1099 tax statement of unemployment benefits from the Department of Labor. (Tr. 22, C-3)
13. The Complainant also received public assistance from the State of Connecticut as evidenced by a lien letter from the Department of Administrative Services dated June 25, 2003 and signed by Robert Dworak, Reimbursement Analyst to Complainant's Attorney. The total on the last page of Exhibit C-6, is a series of "issue dates" and "issue amounts" with a handwritten total of $2,876.00. The Complainant also testified as to the amount. (Tr. 31, C-6)
14. The Complainant was an excellent employee at Mothers Work, Inc. This is evidenced by the additional duties she was given which include opening and closing the store, doing bank deposits, receiving new inventory for the store as well as reviewing the performance of other employees. In addition, she received positive feedback from her store manager while she was at work. The store manager also told the Complainant that she was sorry Complainant was out on leave and that she could not wait for Complainant to return from her maternity leave and resume her duties at the store. (Tr. 34)
15. The Respondent never discussed any performance problems with the Complainant during the entire time she was working for Mother's Work, Inc. (Tr. 34)
16. The Respondent never discussed the reasons for the Complainant's termination prior to her receiving the April 22, 2002 "termination letter". In addition, the Respondent would not discuss Complainant's termination after she received the letter and continued to "stonewall" the Complainant every time she called. (Tr. 35,36)
17. The Complainant was out of work for nine (9) months. (Tr. 37)
18. The Complainant started work as a Home Health Aid at Middlesex Hospital on January 20, 2003. She makes $9.38 per hour at her new job and is scheduled to work 20 hours per week. (Tr. 22, 23, 26)
19. The Complainant is not claiming medical benefits for the time period after she started employment at Middlesex Hospital. (Tr. 30, 31)

IV. Analysis

All of the allegations of the Complainant's complaint are all deemed to be true for purposes of this hearing. Pursuant to General Statutes § 46a-83(i)

A. Back Pay and Mitigation

The Connecticut Supreme Court has long held that after a finding that a respondent has engaged in a discriminatory employment practice against an employee"…the hearing officer must 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". Wroblewski v. Lexington Gardens, Inc., 188 Conn. 44, 66-67 (1982) (Parskey J. dissenting); Civil Services Commission v. CHRO, 195 Conn. 226, 231 (1988); State of Connecticut v. Commission on Human Rights, 211 Conn. 464, 481 (1989). The awarding of back pay is a traditional way to "eliminate the discriminatory effects of past discrimination". Awards of back pay must be reduced by the amount the Complainant earned, or could have earned, with reasonable diligence. General Statutes § 46a-86(b); Silhouette Optical Limited v. Commission on Human Rights and Opportunities, Judicial District of Hartford, Docket No. CV92520590 (January 27, 1994) (10 Conn. L. Rptr. No. 19, 599, 601-04).

B. Front Pay

The Complainant is requesting three (3) years of front pay benefits. Such an award is not supported by the evidence or appropriate to the circumstances of this case.

C. Prejudgment Interest

The awarding of prejudgment interest and its method of calculation is within the discretion of the presiding officer who may choose the method of calculation best suited to making the Complainant whole. The question of whether to compound the interest is also within the discretion of the presiding officer Salpaugh v. Monroe Community Hospital 4 F. 3d, 134, 145 (2nd Cir. 1993) Silhouette Optical Limited, supra at 604.

The Complainant is awarded prejudgment interest at the rate of 10% per annum, compounded annually. Prejudgment interest runs from the date of the discriminatory act April 22, 2002 until the date of this decision.

D. Postjudgment Interest

The presiding officer is also authorized by General Statutes § 37-3a to award postjudgment interest and the discretion to compound the interest if he chooses. I hereby award 10% postjudgment interest, compounded annually. Postjudgment interests runs from the date of this decision until the entire amount is paid by the Respondent.

V. Order

1. The Respondent is ordered to pay to the Complainant a back pay award of $18,329.80.
2. The Respondent is ordered to pay prejudgment interest of 10%, compounded annually, on this back pay award from the date of the discriminatory act, April 22, 2002, until the date of this decision.
3. The Respondent is ordered to pay postjudgment interest of 10%, compounded annually, from the date of this decision until the date of full payment by the Respondent.
4. The Respondent shall cease and desist from the discriminatory conduct described in this complaint i.e., discriminating against pregnant people by terminating them or failing to treat them equally or failing to give them leave as required by law.
5. The Respondent shall also post in all of its Connecticut stores the anti-discrimination materials provided by the Commission.
6. Respondent shall reimburse $9,872.00 in unemployment compensation and public assistance paid by the State of Connecticut to the State of Connecticut.

__________________________
Leonard E. Trojanowski
Presiding Human Rights Referee